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Ronald Glover v. Matthew Cate


July 13, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On January 5, 2011, defendants filed a motion to dismiss on the grounds that the amended complaint ("AC") fails to state a cognizable civil rights claim. After receiving an extension of time, plaintiff filed an opposition on February 3, 2011. Defendants filed a reply on March 14, 2011, after receiving an extension of time. For the reasons set forth below, the undersigned recommends that defendants' motion be granted and this case be dismissed.

II. Motion to Dismiss

Background Plaintiff is proceeding on the AC filed May 25, 2010, against Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), Warden Mike Evans, and Warden Barnes (collectively "defendants"). (Dkt. No. 11.) Plaintiff alleges defendants put into place customs and policies to force inmate cell integration, without strict scrutiny review, which plaintiff alleges violates plaintiff's religious freedom to only be housed with an inmate of the same race. Plaintiff also claims his right to equal protection was violated, and that being classified as "Race Eligible" endangers plaintiff's safety in violation of the Eighth Amendment. Finally, plaintiff contends that his constitutional rights were violated because prison officials failed to apply strict scrutiny in determining plaintiff's classification, and argues Johnson v. California, 543 U.S. 499 (2005), cannot be applied to plaintiff because plaintiff was not a party to the Johnson case.

Defendants contend plaintiff has failed to state a cognizable civil rights claim. Defendants argue that plaintiff has no protected liberty interest in a particular classification, but that if plaintiff was entitled to due process, plaintiff received all process that was due under Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), abrogated in part on other grounds by, Sandin v. Connor, 515 U.S. 472 (1995). Defendants argue that plaintiff was not denied equal protection by the prison's implementation of a race neutral policy. Defendants contend plaintiff's religious claims must give way to the prison's race neutral policy based on the Equal Protection Clause. Defendants argue that plaintiff's Eighth Amendment claim that racial segregation is necessary to prevent racial violence has been rejected by the United States Supreme Court on several occasions. (Dkt. No. 28 at 8.) Finally, defendants argue that plaintiff's contention that the integration policy is unconstitutional because plaintiff was not a part of the settlement of an individual lawsuit in Johnson is without merit.

Legal Standards

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 551 U.S. 89 (internal citations omitted).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

1. Application of Johnson v. California

Plaintiff herein misunderstands the application of Johnson. Whether or not plaintiff was a party to Johnson is of no consequence here. This court is bound by United States Supreme Court authority, and therefore must apply Johnson in this action. Contrary to plaintiff's argument (dkt. no. 25 at 9), this court has no authority to terminate the subsequent settlement of Johnson. Id.

In Johnson, the Supreme Court reviewed a policy that separated inmates on the basis of race. Id., 543 U.S. at 507-08. In so doing, the Court articulated that it had consistently held "that all racial classifications [imposed by government] . . . must be analyzed by a reviewing court under strict scrutiny." Id. at 505 (citation and internal quotation marks omitted). Racial classifications are viewed as immediately suspect, see id. at 509, and their usage can seriously damage the integrity of a prison system. See id. at 510-11.

As noted by defendants, defendant Cate's authority to implement race-neutral cell assignments is derived from California Penal Code § 5054, which vests defendant Cate with the power to supervise and manage state prisons. Because this integrated housing policy does not use race as the main determining factor for housing, it is consistent with the requirements of Johnson.

In addition, plaintiff misunderstands the application of strict scrutiny. Johnson involved the proper level of constitutional scrutiny, not a standard of review, that should be applied to a particular claim in a court of law. Id. Johnson does not require prison officials to use a strict scrutiny standard of review in prison classification hearings, and plaintiff has provided no other legal authority for this contention. Rather, courts apply strict scrutiny to determine if a race-based policy violates the Equal Protection Clause of the Fourteenth Amendment. Johnson, 543 U.S. at 505. Strict scrutiny is not applied to determine what process is due under the Fourteenth Amendment when an inmate contends prison officials deprived the inmate of an identified liberty interest. See Sandin, 515 U.S. at 483-84 (liberty interest defined as "freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."); Toussaint, 801 F.2d at 1100.

Accordingly, plaintiff's arguments that he is not subject to Johnson, or that plaintiff was entitled to the application of strict scrutiny at his classification hearing, are unavailing.

2. Due Process

Plaintiff contends that his due process rights were violated when he was not provided the procedural protections required by Wolff v. McDonnell, 418 U.S. 539 (1974). Plaintiff argues he should have been allowed to have an attorney and to call witnesses on his behalf. Defendants argue that plaintiff's claim fails under Sandin, 515 U.S. at 484, and that, in the alternative, plaintiff was provided all the process plaintiff was due.

The Fourteenth Amendment provides that no state shall deprive a person of life, liberty, or property without due process of law. These procedural guarantees apply only when a constitutionally-protected liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972) (the Fourteenth Amendment's Due Process Clause does not trigger the need for procedural protections in every instance involving the state's deprivation of an individual's liberty, but only when there is a cognizable liberty interest at stake), overruled in part on other grounds by Paul v. Davis, 424 U.S. 693 (1976). Protected liberty interests arise from the Fourteenth Amendment's Due Process Clause itself, or from state laws or regulations deemed to have created a liberty interest cognizable as a civil right. Meachum v. Fano, 427 U.S. 215, 224-27 (1976).

To survive Rule 12(b)(6) review, the complaint must allege facts permitting a finding that the plaintiff has a liberty interest at stake, arising from either the Due Process clause or from state-created sources. Sandin, 515 U.S. at 477-78 (examining whether state prison regulations or the Due Process Clause afforded inmate a protected liberty interest that would entitle him to procedural protections before transfer into segregation); see Roth, 408 U.S. at 569 ("The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property").

These interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to the protection by the Due Process Clause of its own force . . . , nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Sandin, 515 U.S. at 482.

Changes in a prisoner's conditions of confinement can amount to a deprivation of a liberty interest constitutionally protected under the Due Process Clause, but only if the liberty interest in question is one of real substance. Sandin, 515 U.S. at 477-78. Only in those cases where a sufficiently substantial liberty interest is at stake must the court evaluate whether the process received comported with minimum procedural due process requirements. Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (internal quotations omitted). If the court answers the first question in the negative, the plaintiff has failed to state a section 1983 claim for a Fourteenth Amendment violation.

In order to find a liberty interest conferred by state law, the analysis focuses on the nature of the deprivation rather than on the language of any particular regulation, to avoid involvement of federal courts in day-to-day prison management. See Sandin, 515 U.S. at 479-82, 483.

In his AC, plaintiff has failed to allege facts supporting a claim that he had a protected liberty interest in not being classified as "Race Eligible." The Supreme Court noted in dicta that prisoner classification and eligibility for rehabilitative programs in the federal system are delegated to the "full discretion" of federal prison officials, and inmates do not have "legitimate statutory or constitutional entitlement sufficient to invoke due process." Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). The assignment of a housing classification does not create a liberty interest triggering due process. See Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (classification at a Level IV prison rather than at a Level III prison did not subject Myron to an atypical and significant hardship). Moreover, plaintiff has not shown that classifying plaintiff as "Race Eligible" will affect the duration of plaintiff's incarceration. See Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996) (prison classification created no "atypical and significant hardship" because it would not invariably affect the duration of the inmate's sentence) (interpreting Sandin). Absent the existence of a protected liberty interest, plaintiff's due process claim fails. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

Further, even if plaintiff could demonstrate a protected liberty interest existed, plaintiff fails to set forth any facts showing that he was denied the minimal procedural protections he was due under federal law. Toussaint, 801 F.2d at 1100. Contrary to plaintiff's position, Wolff does not apply to plaintiff's challenge to his classification. Wolff governs the procedures required for disciplinary confinement. Id., 418 U.S. at 539.

In addition, plaintiff received the process that was due:

We conclude that when prison officials initially determine whether a prisoner is to be segregated for administrative reasons due process only requires the following procedures: Prison officials must hold an informal non-adversary hearing within a reasonable time after the prisoner is segregated. . . . The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views.

Toussaint, 801 F.2d at 1100. In the instant action, plaintiff was interviewed twice, first in connection with the first level of review of plaintiff's administrative appeal, then again in connection with plaintiff's second level of review. (Dkt. No. 25 at 25-26, 36-37.) On August 12, 2009, plaintiff had a program review hearing. (Dkt. No. 28 at 12.) The classification committee reviewed plaintiff's prison file. (Id.) Plaintiff was provided an opportunity to present his views at the hearings, and plaintiff was provided a written decision. (Id.)

In matters of classification, courts have accorded great deference to the decisions of prison officials. A lesser quantum of process is due a state prisoner in a classification hearing than is required to punish a prisoner for a disciplinary infraction. The minimum due process required is that an inmate receive notice, an informal non-adversary hearing, and an opportunity to present his views to the prison official. So long as these requirements occur, the due process clause is satisfied. Here, plaintiff was provided more due process than required under Toussaint. In addition to the minimum process required, plaintiff had three opportunities to present his views, and he was provided a written decision. Therefore, the AC should be dismissed for failure to state a due process claim.

Moreover, because plaintiff's due process rights were not violated, plaintiff's classification as "Race Eligible" did not violate plaintiff's constitutional rights, and defendants Cate, Evans and Barnes cannot be held liable for failure to properly train or supervise their subordinates.

3. Equal Protection

In the AC, plaintiff alleges that the provisions of the Department of Corrections and Rehabilitation Operations Manual § 54055.5.1 Integrated Housing Codes violate the Equal Protection Clause and sets policy by racial discrimination by its own terms. Plaintiff contends these provisions violate Johnson because they use race as classifications. Defendants contend that the use of these classifications are to ensure the racial integration policies are implemented safely, in conformance with Johnson, 543 U.S. at 512 (The "necessities of prison security and discipline . . . are a compelling government interest justifying only those uses of race that are narrowly tailored to address those necessities.")

The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). An equal protection claim may be established by showing that the defendant intentionally discriminated against the plaintiff based on the plaintiff's membership in a protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), or that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). A plaintiff must allege sufficient facts either showing intentional unlawful discrimination or "that are at least susceptible of an inference of discriminatory intent." Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998).

In the prison context, a prisoner must demonstrate that his treatment is invidiously dissimilar to that received by other inmates. A prison classification based on race is at once suspect and is subject to strict scrutiny. Therefore, prison officials must demonstrate that any policy based on race is narrowly tailored to meet a compelling government interest. See Johnson 543 U.S. at 499.

Plaintiff cannot claim an actual injury when his claim is not that he is being segregated or housed only with members of his own race but that plaintiff has been classified as "Race Eligible," which means plaintiff is eligible for integrated housing. Johnson, 543 U.S. at 499. Plaintiff cannot articulate a claim of racial discrimination based on being subjected to a prison housing regulation which does not use race as the main determining factor for housing. A claim of racial discrimination must be based on an allegation of compelled segregated housing, rather than compelled integrated housing. "An express racial classification . . . [is] immediately suspect." Johnson, 543 U.S. at 509 (internal citation omitted). Here, the policy at issue specifically states that "[a]n inmate's race will not be used as a primary determining factor in housing an institution's inmate population." Department of Corrections and Rehabilitation Operations Manual § 54055.4. The provisions of § 54055.4 further state that "[h]ousing assignments will be determined in a manner that will ensure that the safety, security, treatment, and rehabilitative needs of the inmate are considered, as well as the safety and security of the public, staff, and institutions." Id. Thus, by its very terms the policy at issue provides that race is not the primary determining factor in housing, but that certain individual case factors, such as history of racial violence, disciplinary history, etc., will be used to ensure safety. The terms used in § 54055.5.1 reflect the various classifications are used to ensure the safety and security of the inmates and the institution.

The Fourteenth Amendment bans racial discrimination of the sort plaintiff seeks to impose in the form of segregation by race. Id., at 510-511. Thus, plaintiff's equal protection claim fails. See Bjorlin v. Hubbard, 2010 WL 457685 at *1 (E.D. Cal. 2010) ("[N]either a[] [sensitive needs yard] or a [general population] inmate is entitled to be housed with a member of his own race, nor can he claim an actual injury when his claim is not that he is being segregated or housed only with members of his own race but is rather the reverse that he is being told he must agree to integrated housing.") (recommending that Bjorlin's claims of discrimination and violation of his rights under the Equal Protection Clause of the Fourteenth Amendment by any prison policy of integrated housing be dismissed; adopted in full by district court order dated May 7, 2010).

4. Plaintiff's Religious Claim

Plaintiff contends that he is a "Christian/Odinist/Aryan" who believes it is a sin for him to share a cell with someone who is not of the Aryan race. Plaintiff argues his belief in racial separation is religious and sincerely held.

Defendants contend that where there is a conflict between plaintiff's religious beliefs and defendants' obligation to maintain policies and practices that are not based on race, the First Amendment must give way to the Equal Protection Clause of the Fourteenth Amendment.


Under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), a government may not impose a substantial burden on the religious activities of a confined person unless the government establishes that the burden furthers a "compelling governmental interest" and does so by "the least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)-(2). The burden need not concern a religious practice that is compelled by, or central to, a system of religious belief. Id. § 2000cc-5(7)(A). The "compelling government interest" and "least restrictive means" test replaced the "legitimate penological interest" test of Turner v. Safley, 482 U.S. 78, 89-91 (1987). Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005) (citing 42 U.S.C. § 2000cc-1(a)). Under its own terms, RLUIPA must be "construed broadly in favor of protecting an inmate's right to exercise his religious beliefs." Id. at 995 (citing 42 U.S.C. § 2000cc-3(g)).

Plaintiff bears the burden of establishing that RLUIPA has been violated and that his religious exercise has been substantially burdened. Warsoldier, 418 F.3d at 994 (citing 42 U.S.C. § 2000cc-2(b)). The government then bears the burden of proving that the substantial burden on the inmate's religious practice both furthers a compelling governmental interest and is the least restrictive means of doing so. Id. at 995 (citing 42 U. S .C. §§ 2000cc-1(a), 2000cc-2(b)).

b. First Amendment

The First Amendment guarantees the right to the free exercise of religion. Cruz v. Beto, 405 U.S. 319, 323 (1972). "The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987), superseded on other grounds by statute, RLUIPA, 42 U.S.C. §§ 2000cc, et seq. Consequently, in order to establish a free exercise violation, a prisoner must show a defendant burdened the practice of his religion without any justification reasonably related to legitimate penological interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008) (factual issues precluded summary judgment on plaintiff's claim that prison's refusal to provide kosher meat diet violated Shakur's constitutional rights).

c. Ripeness Doctrine "The ripeness doctrine prevents courts, through avoidance of premature adjudication, from entanglement in theoretical or abstract disagreements that do not yet have a concrete impact on the parties." 18 Unnamed "John Smith" Prisoners v. Meese, 871 F.2d 881, 883 (9th Cir. 1989). The ripeness inquiry contains both a constitutional and a prudential component. Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). The constitutional component of ripeness is often treated under the rubric of standing, and often "coincides squarely with standing's injury in fact prong." Id. To satisfy the constitutional component there must exist a constitutional case or controversy; the issues must be "definite and concrete, not hypothetical or abstract." Id. at 1139 (internal quotation and citation omitted). An alleged injury which is too imaginary or speculative will not support jurisdiction. Id. In particular, an issue is not ripe for adjudication if it depends on "contingent future events that may not occur as anticipated, or indeed not occur at all." 18 Unnamed John Smith Prisoners, 871 F.2d at 883 (internal quotation and citation omitted).

d. Application

Plaintiff contends that his classification as "Race Eligible" is a substantial burden on the exercise of his religion. However, plaintiff does not allege that he has been required to share a cell with an inmate of another race, or that he is not allowed to choose his own cell partner. The Classification Committee Action reflects plaintiff has been double-celled since reception in the California Department of Corrections and Rehabilitation. (Dkt. No. 28 at 12.) It appears plaintiff is presently celled with another inmate of the same race as plaintiff, such that plaintiff is presently free to exercise his religion at this time. Because plaintiff has only been deemed "eligible" to be housed with someone of a different race, plaintiff has not demonstrated an injury in fact. Therefore, plaintiff's religious claims are not ripe for review, and should be dismissed without prejudice to plaintiff's raising such claims in a separate lawsuit*fn1 should he suffer an actual injury.

5. Eighth Amendment

Plaintiff alleges that the prison's integration policy will cause plaintiff physical harm in violation of the Eighth Amendment. Defendants contend this claim is vague, conclusory, and speculative, and should be dismissed.

As noted by defendants, plaintiff's claim that racial segregation is required to prevent racial violence has been repeatedly rejected by the United States Supreme Court. Buchanan v. Warley, 245 U.S. 60, 81 (1917) (argument that proposed segregation promoted the public peace cannot be "accomplished by laws or ordinances which deny right created or protected by the federal constitution"); Watson v. City of Memphis, 373 U.S. 526, 536 (1963) ("There is no indication that there had been any violence or meaningful disturbances when other recreational facilities [were] desegregated. In fact, the only evidence in the record was that such prior transitions [were] peaceful."; Palmore v. Sidoti, 466 U.S. 429, 434 (1984) ("Whatever problems racially mixed households may pose for children in 1984 can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody."). Moreover, the Supreme Court has specifically rejected plaintiff's claim in the prison context. Johnson, 543 U.S. at 507-08 (By perpetuating the notion that race matters most, racial segregation of inmates "may exacerbate the very patterns of [violence that it is] said to counteract.")

Plaintiff alleges that he is at risk of future harm in that certain inmates have claimed that "any white man who seeks to integrate with other inmates of different races will be physically harmed." (Dkt. No. 25 at 22.) However, plaintiff is not seeking to be housed with a person of a different race. Nor is plaintiff facing an order to be housed with a person of a different race. Rather, plaintiff has simply been classified as "race eligible." As noted above, plaintiff is presently double-celled and has not alleged he is facing an order to be celled with a person of a different race. In any event, plaintiff's allegations are too speculative to state a cognizable Eighth Amendment claim. See Farmer v. Brennan, 511 U.S. 825, 843 (1994) ("It is not enough merely to find that a reasonable person would have known, or that the defendant should have known."). Plaintiff's Eighth Amendment claim should also be dismissed.

IV. Conclusion

Accordingly, this court recommends that defendants' motion to dismiss be granted, and this action be dismissed based on plaintiff's failure to state a cognizable civil rights claim. Fed. R. Civ. P. 12(b)(6).


1. Defendants' January 5, 2011 motion to dismiss (dkt. no. 21) be granted; and

2. This action be dismissed for failure to state a civil rights claim. Fed. R. Civ. P. 12(b)(6).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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