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Carlos Gilbert Law v. D. Domico

February 13, 2012

CARLOS GILBERT LAW,
PLAINTIFF,
v.
D. DOMICO,
DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A COGNIZABLE CLAIM THIRTY-DAY DEADLINE (ECF No. 16)

I. Screening Requirement

Plaintiff Carlos Gilbert Law ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 1, 2010, and an order issued on August 17, 2011, dismissing Plaintiff's complaint, with leave to amend, for failure to state a cognizable claim. (ECF No. 15.) Plaintiff's first amended complaint, filed August 29, 2011, is currently before the Court.

The Court is required to screen complaints brought by prisoners seeking relief against 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 the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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).

"[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)).

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 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). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

II. Discussion

Plaintiff alleges that in October 2010, he informed Defendant Domico, his parole officer, that he was a rape victim, was labeled a snitch in Merced County, and parolees in Merced County and the State of California continue to make threats against Plaintiff. Plaintiff claims that Defendant Domico is aware that Plaintiff could be killed in California and refused to protect him. On July 3, 2011, while incarcerated, Plaintiff was attacked by inmate Thompson, who is a Merced County parolee. Plaintiff states that he has a proposed release date and seeks injunctive relief requiring him to be paroled outside of California and punitive damages claiming a violation of equal protection under the Fourteenth Amendment.

The Equal Protection Clause requires that all persons who are similarly situated should be treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Plaintiff's complaint is devoid of any allegations that he is being intentionally discriminated against based on his membership in a protected class, Lee, 250 F.3d at 686; Barren v. Harrington, 152 F.3d 1193, 1194 (1998), or that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose, Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff fails to state a cognizable claim for a violation of equal protection.

To the extent that Plaintiff's complaint could be construed to allege a claim of deliberate indifference in violation of the Eighth Amendment, Plaintiff fails to state a cognizable claim. Neither Plaintiff's allegation that he was attacked while in prison by a Merced County parolee nor the claim that parolees in Merced and California have made threats against Plaintiff are sufficient to show defendant was aware that Plaintiff is at a substantial risk of serious harm. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (the inmate must show that the prison officials were aware of a "substantial risk of serious harm" to an inmate's health or safety). Additionally, Plaintiff's conclusory statement that Defendant Domico failed to protect him does not set forth any factual allegations to show that Defendant Domico failed to act. Plaintiff' conclusory allegation is insufficient to state a plausible claim that Defendant Domico was deliberately indifferent to Plaintiff's safety. Iqbal, 129 S. Ct. at 1949.

Finally, to the extent that Plaintiff attempts to state a violation of the Due Process Clause of the Fourteenth Amendment, he fails to state a cognizable claim. In order to state a cause of action for a deprivation of due process, a plaintiff must first identify a liberty interest for which the protection is sought. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393 (2005). The Due Process Clause does not confer a liberty interest in freedom from state action taken within a prisoner's imposed sentence. Sandin v. Conner, 515 U.S. 472, 480, 115 S. Ct. 2293, 2298 (1995). However, a state may "create liberty interests which are protected by the Due Process Clause." Sandin, 515 U.S. at 483-84, 115 S. Ct. at 2300.

While Plaintiff has a liberty interest in parole, Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (per curiam), he does not have a constitutional right to be paroled to the location of his choice, Bagley v. Harvey, 718 F.2d 921, 924 (9th Cir. 1983). There is no substantive liberty interest in being housed in a particular prison and an inmate has no right to incarceration in the prison of his choice. Olim v. Wakinekona, 461 U.S. 238, 245, 103 S. Ct. 1741, 1745 (1983); White v. Lambert, 370 F.3d 1002, 1013 (9th Cir. 2004) (overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). Neither the initial decision assigning the inmate to a particular prison nor a subsequent transfer to a different prison implicate the Due Process Clause. Olim, 461 U.S. 244-45, 103 S. Ct. at 1745; Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 2538 (1976); see Moody v. ...


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