FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This matter is proceeding on claims raised in plaintiff's third amended complaint, filed March 26, 2010. In relevant part, plaintiff alleges that defendants Givens and Rogers "filed a false charge" against him, and that defendant Providence acted in concert with these two defendants to "frame" him. Third Amended Complaint, filed March 26, 2010, at 3. Plaintiff alleges that defendant Sanchez denied him access to the law library to defend against the charges. Id. Plaintiff alleges that defendants Mitchell, Flores, Dickinson and Newman, a private attorney, all "conspired" to "deprive the plaintiff of equal protection of the law" because they were presented with evidence that the charges had been fabricated and failed to consider those facts; plaintiff also claims these actions violated his right to due process.*fn1 Finally, plaintiff alleges that defendants DeMars and Dickinson were deliberately indifferent to plaintiff's health and safety by housing him in an administrative segregation unit with no outside airflow, causing plaintiff to suffer hayfever symptoms. This matter is before the court on defendants' renewed motion to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(6).*fn2
STANDARDS FOR A MOTION TO DISMISS
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 Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 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, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).
ALLEGATIONS OF THE THIRD AMENDED COMPLAINT Plaintiff's third amended complaint consists of the following allegations relevant to the instant motion:
Plaintiff alleges defendants Derrick Givens, and P. Rogers, filed a false charge against him; and by complicity defendant K. Providence, acted in concert with them to frame the plaintiff depriving him of his Constitutional Rights. Plaintiff also alleges defendant L. Sanchez, a Librarian denied plaintiff access to the Library and thereby interfered with his right to redress his legal issues with the court; depriving the plaintiff or [sic] the equal protection of the law. The plaintiff alleges defendants E.A. Mitchell, L.N. Flores, K.L. Dickinson, and B.K. Newman, all conspired and acted in concert to deprive the plaintiff of the equal protection of the law because they were presented evidence the false charge filed against him had been fabricated by the aforementioned officers. Defendants E.A. Mitchell, L.N. Flores, K.L. Dickinson and attorney B.K. Newman, failed in their duty to consider the facts as presented to them and to afford the plaintiff the Equal Protection of the Law. Their actions also deprived the plaintiff of his Due Process of law as guaranteed by the U.S. and California's State Constitutional Laws. . . . In a "Related Cause" while being held in Administration [sic] Segregation defendants DeMars, and K.L. Dickinson, were Deliberated [sic] Indifferent to the plaintiff's health and safety by failing to consider his pain and suffering while housed in a unit with no outside air flow which causes the plaintiff to suffer hayfever type symptoms.
Third Amended Complaint, filed March 26, 2010, at 3-4.
DEFENDANTS' MOTION TO DISMISS
Defendants seek dismissal on the ground that plaintiff has failed to allege sufficient facts to support any of his claims. Defendants also contend they are entitled to qualified immunity.
I. Equal Protection Claim
Defendants' first contention is that plaintiff has failed to state a claim under the Equal Protection Clause of the Fourteenth Amendment because he has failed to allege any facts which show that defendants treated him differently based on membership in a protected class. In opposition to the motion, plaintiff contends that he was "singled out and chosen as the one individual upon whom [defendants] would file a false charge." Opposition to Renewed Motion to Dismiss, filed August 11, 2011, at 2. Plaintiff also suggests the possibility that the charges may have been brought due to his homosexual relationship with a Caucasian inmate. See id. at 3 and Ex. O. None of the contentions raised in plaintiff's opposition to the renewed motion to dismiss are suggested by the allegations of the third amended complaint.
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982). Plaintiff has not alleged any facts in the third amended complaint that suggest that he was treated differently from otherwise similarly situated inmates. For this reason, he has failed to state a cognizable equal protection claim. Given the assertions in plaintiff's opposition, the court cannot find that the defects in plaintiff's equal protection claim could not be cured by amendment. Accordingly, plaintiff should be given an opportunity to file a fourth amended complaint to cure these defects. Plaintiff is cautioned, however, that any amended equal protection claim must be supported by factual allegations; vague and conclusory assertions are insufficient to support a cognizable claim for relief. See Bell Atlantic Corp., 550 U.S. at 554.
Defendants seek dismissal of plaintiff's due process claim on the ground that he has failed to alleged any facts which suggest that he suffered any significant or atypical hardship as a result of the allegedly false disciplinary charges. Once again, plaintiff's opposition to the motion contains several allegations not included in the prior amended complaint.
An allegation that a false disciplinary report has been filed can state a claim for a procedural due process violation if the plaintiff alleges that the procedural protections outlined in Wolff v. McDonnell, 418 U.S. 539 (1974) were not met in connection with prosecution of the disciplinary charges and/or that the disciplinary conviction was not supported by "some evidence." See, e.g., Black v. Lane, 22 F.3d 1395, 1401-02 (7th Cir. 1994). Conversely, a procedural due process claim arising out the filing of a false disciplinary report fails if the Wolff protections were afforded to the inmate at a disciplinary hearing. See Freeman v. Rideout, 808 F.2d 949 (2nd Cir. 1986), cert. denied, 485 U.S. 982 (1988) (inmates procedural due process rights are not violated by false charges if inmate is granted a hearing on the charges and an opportunity to rebut them). The protections under Wolff include (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) the right to appear in person before an ...