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