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Beckham v. Mercado

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


February 27, 2009

ALAN BECKHAM, PLAINTIFF,
v.
HUGO MERCADO AND AGENT BELL, DEFENDANTS.

The opinion of the court was delivered by: Edward F. Shea United States District Judge

ORDER REQUIRING PLAINTIFF TO SUBMIT DOCUMENTS

Before the Court is pro se state prisoner Plaintiff Alan Beckham's First Amended Complaint, alleging Fourth Amendment and Fourteenth Amendment equal protection claims under 42 U.S.C. § 1983. (Ct. Rec. 12.) Under the Prisoner Litigation Reform Act of 1995, the Court is required to screen prisoner complaints seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Claims that are legally frivolous or malicious, claims that fail to state a claim upon which relief may be granted, and claims that seek monetary relief from a defendant who is immune from such relief are properly dismissed. Id. §§ 1915A(b)(1), (2) & 1915(e)(2).

After review, the Court finds that the First Amended Complaint states plausible 42 U.S.C. § 1983 claims based on a Fourth Amendment unlawful arrest/seizure and orders Plaintiff to prepare and return service documents so that the U.S. Marshals may serve the complaint on Defendants.

Plaintiff's Fourteenth Amendment equal protection claims are properly dismissed. The Equal Protection Clause requires the State to treat all similarly situated people equally. Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008). A plaintiff asserting a denial of equal protection must allege facts establishing a prima facie case of discrimination. United States v. Estrada-Plata, 57 F.3d 757, 760 (9th Cir. 1995). To establish a prima facie case, Plaintiff must allege facts showing that Defendants acted with the intent to discriminate against him based on his membership in a protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that he was treated differently from persons similarly situated. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985).

Parolees are not members of a protected class. See Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). Nor has Plaintiff articulated any facts even remotely indicating that he was treated differently from persons similarly situated. Finally, there is no protected constitutional right to live in an apartment.

Accordingly, IT IS HEREBY ORDERED:

1. Plaintiff's Fourteenth Amendment Equal Protection Claims are dismissed with prejudice.

2. Service is appropriate for all named Defendants.

3. The Clerk of Court shall immediately send Plaintiff a USM-285 form for each Defendant to be served, as well as a summons, instruction sheet, and a copy of the First Amended Complaint. (Ct. Rec. 12.)

4. Within forty-five (45) days from the date of this Order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the Court: a. The completed Notice of Submission of Documents; b. One completed summons; c. One completed USM-285 form for each Defendant listed in paragraph 2 above; and d. three (3) copies of the complaint (Ct. Rec. 12).

5. Plaintiff need not attempt service on Defendants and need not request waiver of service. After receiving the above-described documents, the Court will issue a separate Order requiring the U.S. Marshals to serve each Defendant listed in paragraph 2.

6. The Court cautions Plaintiff that failing to submit the abovedescribed documents within forty-five (45) days will be construed as permission to dismiss this lawsuit under Federal Rule of Civil Procedure 41.

IT IS SO ORDERED.

The District Court Executive is directed to enter this Order and providea copy to Plaintiff and the U.S. Marshals Service.

NOTICE OF SUBMISSION OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the Court's Order filed completed summons form; completed USM-285 forms; and copies of the complaint (Ct. Rec. 1).

20090227

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