The opinion of the court was delivered by: Helen Gillmor Chief United States District Judge
ORDER DISMISSING SECOND AMENDED COMPLAINT IN PART AND DIRECTING SERVICE
On March 10, 2008, Plaintiff Cion Peralta filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983.*fn1 The Court dismissed Plaintiff's Original and First Amended Complaints with leave to amend, for failure to state a claim. (Docs. 9 and 10.) Before the Court is Plaintiff's Second Amended Complaint ("SAC"). (Doc. 11.) Plaintiff alleges deprivations of his rights to "procedural" due process, equal protection, and freedom of religion as guaranteed by the United States Constitution.
For the following reasons, the SAC is DISMISSED IN PART for Case 2:08-cv-00530-HWG Document 14 Filed 03/16/2009 Page 2 of 14 Plaintiff's failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff's due process and equal protection claims are DISMISSED with prejudice. Plaintiff's freedom of religion claim shall proceed; service of the SAC is directed against all Defendants, as to this claim only.
The California State administrative code requires all "able-bodied" prisoners to work or obtain an education. 15 California Code of Regulations ("CCR") § 3040(a). The CDCR classifies all prisoners by work group, designated A-1, A-2, B-1, B-2. 15 CCR § 3044. Prisoners in work group A-1 are eligible for full-time work and training assignments. Prisoners in work group A-2 are deemed "willing but unable to perform" a full-time assignment, and either are put on a waiting list for a full-time assignment or are waiting for an adverse transfer to a different institution. 15 CCR § 3044(b)(2) and (3). The CDCR also classifies prisoners by "privilege" group, designated A-D and U. 15 CCR § 3044 (c) and (e). Privileges are earned, and "shall be governed by an inmate's behavior, custody classification and assignment." Id. Plaintiff is assigned to the Work Group/Privilege Group status of A-2/B at Mule Creek State Prison.
Plaintiff does not currently have a prison job, but has never refused work. Plaintiff is on three waiting lists for employment positions at the prison, and will be placed in the first available position when his name appears at the top of one of the waiting lists. (10/18/2007 Second Level Appeal Response, SAC, Exh. A at 19., Doc. 11.)
Plaintiff asserts that as an A-2/B status prisoner, he has the right to access yard, recreation, and entertainment activities during non-working hours, pursuant to 15 CCR § 3044(e)(3)(E). (SAC at 7-8., Doc. 11) Plaintiff alleges that Defendants deprived him of his rights to education, recreation, rehabilitation, and to attend church. (Id., at 7-8; Pl. Dec, Doc. 11-2 at 2. ) Plaintiff argues that Defendants withheld these opportunities in part because he is an inmate without a prison job.
II. STATUTORY SCREENING OF THE COMPLAINT
A federal district court is required to screen any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if a plaintiff raises claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) and (2); 28 U.S.C. § 1915(e)(2)(B)(ii).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A claim fails to state a claim upon which relief may be granted if it appears that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass'n, Inc., 651 F.2d 1289, 1294 (9th Cir. 1981).
During screening, the court must accept as true the allegations of the complaint, Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 2003) (the court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt). The court is not required to accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
If the court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 66 F.3d 245, 248 (9th Cir. 1995). A district court should not, however, advise the litigant on how to cure the defects. Such advice "would undermine district judges' ...