Houston v. Torres

Filing 25

ORDER signed by Judge Kimberly J. Mueller on 2/11/2013 ADOPTING IN PART 23 FINDINGS AND RECOMMENDATIONS; 19 Motion to Dismiss is GRANTED as to plaintiff's due process and state law claims without leave to amend; Plaintiff's equal protection claim is DISMISSED with leave to file an amended complaint; and this case is REFERRED back to the magistrate judge for further proceedings. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELVIN HOUSTON,
Plaintiff,

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No. 2:11-cv-2897 KJM JFM P

Defendant.

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ORDER

vs.
A. TORRES,

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On November 2, 2012, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court finds the findings and recommendations to be supported by the record and by the

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proper analysis as to plaintiff’s claims based on the due process clause and on state law.
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In the findings and recommendations, the magistrate judge rejects plaintiff’s equal

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protection claim by noting that plaintiff failed to allege any form of discrimination. ECF No. 23

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at 11. In his objections, plaintiff argues that the court should read his complaint, with its

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citation to state regulations concerning disciplinary proceedings, as alleging that he was denied

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the protection of the regulations afforded to all other prisoners. ECF No. 24 at 1. Plaintiff does

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not allege, however, he was intentionally singled out for different treatment than other similarly

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situated inmates. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Nevertheless,

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the magistrate judge erred in dismissing this claim without giving plaintiff leave to amend the

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complaint. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (“A pro se litigant must

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be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of

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the complaint could not be cured by amendment.”) (internal quotations omitted). This court

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expresses no view on the viability of any amended complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed November 2, 2012, are adopted in

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part;

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2. Defendant’s August 23, 2012 motion to dismiss be granted as to plaintiff’s due
process and state law claims without leave to amend;

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3. Plaintiff’s equal protection claim is dismissed with leave to file an amended
complaint; and
4. The case is referred back to the magistrate judge for further proceedings.
DATED: February 11, 2013.

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UNITED STATES DISTRICT JUDGE

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