The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ONLY ON EQUAL PROTECTION CLAIM AGAINST DEFENDANT ESQUER (Doc. 11) THIRTY-DAY OBJECTION DEADLINE
Findings and Recommendations Following Screening of Amended Complaint
I. Screening Requirement and Standard
Plaintiff Stephon Butler, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 27, 2009. On February 18, 2010, the Court screened Plaintiff's complaint and dismissed it, with leave to amend, for failure to state any claims under section 1983. Pending before the Court is Plaintiff's amended complaint, filed March 17, 2010.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.*fn1 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised 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), (2).
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
To state a claim, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
II. Summary of Amended Complaint
Plaintiff brings this suit against California Department of Corrections and Rehabilitation (CDCR) Secretary Matthew Cate, former Sierra Conservation Center (SCC) Warden Ivan Clay, Correctional Counselor T. Esquer, Chief Deputy Warden F. X. Smith, and Appeals Coordinator Semsen based on events which occurred during the time he was incarcerated at SCC, which is in Jamestown, California. Plaintiff's allegations suggest he is pursuing claims for violation of the Due Process and Equal Protections Clauses of the Fourteenth Amendment.
Plaintiff alleges that during his classification committee hearing at SCC on January 28, 2009, Defendant Esquer insisted that Plaintiff be classified with a "P," which is a violence designation code. Defendant Esquer relied upon a probation report in which Plaintiff's co-defendant made comments that were later proven to be lies and found to be false by a jury. Plaintiff was not convicted of inflicting bodily injury on the victim of his crime, and Captain Overstreet briefly tried to persuade Defendant Esquer to consider the facts. In insisting Plaintiff receive a "P" code for violence, Defendant Esquer stated, "Look at him," referring to Plaintiff's physical appearance. Plaintiff alleges that he is black, bald, 6'3, and 300 pounds.
As a result of the "P" code, Plaintiff was ineligible for the fire camp program, for which he was otherwise deemed eligible and which would have allowed him to reduce his sentence.*fn2 Plaintiff alleges that Defendant Esquer violated CDCR policy and procedure, which provided that only inmates convicted of a violent or serious felony or of a rules violation for violence may be subject to a "P" code, none of which applied to Plaintiff. Plaintiff also alleges that he learned Defendant Esquer frequently ...