The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se who seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has paid the filing fee. Presently pending is defendants' motion to dismiss this case pursuant to Federal Rules of Civil Procedure 12(b)(6) on the grounds that plaintiff has failed to state a claim upon which relief can be granted.
The complaint alleges that defendants have violated the First, Eighth and Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act (RLUIPA) by putting into place customs and policies that force different races to share prison cells in light of Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141 (2005). Johnson held that under an equal protection challenge, CDCR's unwritten policy of double-celling new/transferred inmates in initial 60--day evaluation with cellmates of same race was subject to strict scrutiny standard of review. Johnson did not determine whether the CDCR policy at issue violated the Equal Protection Clause, remanding for that determination, but did hold strict scrutiny to be the applicable standard of review. Johnson, at 515. The Supreme Court held that 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.
Plaintiff is a white Christian/Odinist and states his religion forbids him from sharing a cell with another race. Plaintiff states that he was classified as "Race Eligible" meaning that he could safely be double celled with inmates of other races. Plaintiff contends that this classification violated his right to due process and equal protection under the Fourteenth Amendment because his individual classification decision was not subject to strict scrutiny. Plaintiff states he is entitled to "due process strict scrutiny review." Plaintiff also contends he should have been able to call witnesses, present evidence and testify on his own behalf at the time he was classified. Plaintiff notes that many gang members are not forced to share cells with other races due to the potential for violence, thus he is being discriminated against for not being in a gang.*fn1
Plaintiff also states his religious beliefs prevent him from sharing a cell with a member of another race. When plaintiff was to be celled with a Muslim non-white inmate, plaintiff refused, stating he would be subject to harm from other white inmates for sharing a cell with a non-white, which would also violate the Eighth Amendment. Plaintiff was not forced to share the cell with the Muslim inmate and instead was issued a Rule Violation Report and placed in Administrative Segregation for refusing a cellmate. The Rule Violation Report was placed on his record and may have been a factor in a later denial of parole. It does not appear that plaintiff has ever actually been celled with a member of another race. Plaintiff also states that the policies that arose from Johnson should not apply to him because he was not a party to that action.
Legal Standard In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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, 555, 127 S.Ct. 1955 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594 (1972).
Defendants note that plaintiff was originally a joint plaintiff in another case with the exact same claims, Glover v. Cate, No. 2:10-cv-0430 KJM KJN P. That case was dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), similar to the pending motion to dismiss. However, prior to the dismissal plaintiff was severed from that case. Plaintiff's case was ultimately dismissed in that action for failure to exhaust administrative remedies. See No. 2:10-cv-1093 GEB KJN P. Plaintiff apparently exhausted the administrative remedies and filed the instant action. Defendants argue that the doctrine of collateral estoppel should apply to many of the claims that were already dismissed. However, rather than analyze the collateral estoppel doctrine and the tenuous privity argument between plaintiff and a different prisoner who filed the same case, the undersigned will instead look to the underlying claims.
Plaintiff believes that the integration policy instituted in light of Johnson cannot apply to him because he was not a party to that action and that case was not a class action. However, plaintiff is confused about the application of Johnson. Whether or not plaintiff was a party or not to Johnson is of no consequence to this action. This court is bound by authority of the Supreme Court and Johnson applies to the instant case.
Plaintiff also repeatedly states that strict scrutiny should be used by defendants in determining housing and what inmates can be housed with inmates of other races. Courts apply strict scrutiny to determine if a raced based policy violates the Equal Protection Clause of the Fourteenth Amendment. Johnson, at 505. Plaintiff misunderstands the application of strict scrutiny. Johnson concerned the proper level of constitutional scrutiny that should be applied to a claim brought in court. While individuals and entities should be guided by court decisions announcing important principles, and may ultimately be liable if they do not, Johnson does not require that prison officials use a strict ...