The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' November 3, 2011 motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, the undersigned recommends that defendants' motion be denied in part and granted in part, and granted with leave to amend in part.
II. Legal Standard for 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 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). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
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).
This action is proceeding on the amended complaint filed June 28, 2011, as to defendants California State Prison-Sacramento ("CSP-Sac") Warden Virga, Captain Cannedy, Captain Mini, and Counselor Daly. (Dkt. No. 14.) Plaintiff, who is African American, alleges that he was subject to an improper eleven month race-based lockdown. Plaintiff alleges that the lockdown was based on an incident between some African American and Southern Hispanic inmates. Plaintiff alleges that he, personally, had nothing to do with the incident. Plaintiff alleges that Southern Hispanic inmates were allies of the white inmates. Plaintiff alleges that during the lockdown, white inmate food service employees tampered with the food served to the African American inmates.
Plaintiff alleges that he wrote an administrative appeal addressed to defendant Virga regarding the race-based lockdown and food tampering. Plaintiff alleges that defendant Virga ignored his appeal. Plaintiff alleges that on December 15, 2010, defendant Cannedy interviewed plaintiff. During this interview, plaintiff told defendant Cannedy that the prolonged lockdown was creating a crisis. Plaintiff alleges that defendants Cannedy and Mini signed memorandums authorizing the race-based lockdown. Plaintiff also alleges that during the lockdown, defendant Mini improperly placed a limit on the amount of food items inmates on lockdown could purchase from the canteen. As a result of this limitation, plaintiff alleges that he was required to eat the food tampered with by the white inmates.
Plaintiff alleges that defendant Daly improperly denied his administrative appeal regarding the race-based lockdown because plaintiff failed to attach a memorandum to his grievance. Plaintiff alleges that he does not know to what memorandum defendant Daly was referring.
Plaintiff alleges that during the lockdown, he was denied access to the law library, a telephone, cleaning supplies for his cell and hair clippers.
IV. Discussion A. Exercise
Defendants construe plaintiff's amended complaint as raising a claim alleging denial of outdoor exercise during the lockdown. However, the amended complaint does not raise a claim alleging denial of outdoor exercise. In the amended complaint, plaintiff alleges, "[m]y issues mainly focused on: safety of the food being served, access to the law library, access to a phone, access to needed cell cleaning supplies, access to some hairclippers . . . these were my primary issues, . . . not . . . walking the prison yard with the 'Southern Hispanics.'" (Dkt. No. 14 at 9.)
In the opposition to defendants' motion, plaintiff alleges that he was denied "regular yard exercise and . . . fresh air." (Dkt. No. 45 at 2.) Plaintiff is granted leave to file a second amended complaint raising a claim alleging denial of outdoor exercise during the lockdown. If plaintiff does not intend to raise such a claim, he shall not include it in any second amended complaint.*fn1
B. Race-Based Lockdowns in Violation of Equal Protection
Plaintiff alleges that he was subject to a race-based lockdown in violation of his right to Equal Protection. Defendants argue that they are entitled to qualified immunity with regard to plaintiff's Equal Protection claim.
Qualified Immunity Standard "'Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct.'" Hunt v. County of Orange, 2012 WL 432297 at *7 (9th Cir. Feb. 13, 2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, 'the contours of a right are sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal alterations omitted).
Although the court was once required to answer these questions in order, the United States Supreme Court has clarified that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, 555 U.S. 223, 236 (2009). In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiries concerning qualified immunity without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 555 U.S. at 236--42.
In resolving the question of qualified immunity, the court views the facts in the light most favorable to the plaintiff. See Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2009).
Equal Protection Standard "Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race." Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation omitted). Invidious racial discrimination such as racial segregation, which is unconstitutional outside prisons, also is unconstitutional within prisons. See Johnson v. California, 543 U.S. 499, 505--06 (2005). A prison classification based on race is immediately suspect and is subject to the same strict scrutiny as a racial classification outside prison. See id. at 508--10. Prison officials must therefore demonstrate that the race-based policy or action is narrowly tailored to serve a compelling state interest. Id. at 510--11; Richardson v. Runnels, 594 F.3d 666, 671 (9th Cir. 2010) (applying Johnson to racial lockdowns in response to prison disturbances).
Johnson did not rule out race-based classifications and did not eliminate prison security as a reason for such classifications, but instead determined that prison officials must demonstrate that race-based policies are narrowly tailored to address a compelling government interest such as prison security. See Johnson, 543 U.S. at 511--13, 515 (remanding case for determination of whether California Department of Corrections and Rehabilitation's policy of temporarily segregating inmates by race when they arrive in the prison system initially or are transferred to a new prison is narrowly tailored to serve a compelling state interest).
In Richardson, the inmate/plaintiff alleged that in several instances, assaults that were believed to be perpetrated by African American prisoners led to the lockdown of all African American inmates in a particular unit of the prison. 594 F.3d at 671. In Richardson, the Ninth Circuit held that under Johnson, defendants moving for summary judgment on a racial classification claim must show that "reasonable men and women could not differ regarding the necessity of a racial classification in response to prison disturbances and that the racial classification was the least restrictive alternative (i.e., that any race-based policies are narrowly tailored to legitimate prison goals);" and finding that defendants failed to carry this burden because they made no evidentiary showing at all concerning the basis for regarding all African American inmates as a security risk when one or a few African American inmates are responsible for an assault). Id. at 672.
Did Defendants Violate Plaintiff's Right to Equal Protection?
The undersigned first considers whether plaintiff's amended complaint states a claim for violation of the Equal Protection clause. Plaintiff alleges that all African American inmates were placed on lockdown based on an incident involving some African American inmates and some Southern Hispanic inmates. Plaintiff alleges that he had nothing to do with the incident on which the lockdown was based.
In the motion to dismiss, defendants request that the court take judicial notice of documents attached as exhibits to plaintiff's original complaint which they claim clarify his claims. Defendants suggest that these exhibits undermine plaintiff's Equal Protection claim.*fn2
In particular, defendants cite a memorandum signed by defendant Mini on January 19, 2010, stating that on Tuesday, January 19, 2010, "a Racial Riot occurred in B Facility Pedestrian Sallyport area between Black disruptive groups and Southern Hispanics, utilizing weapons resulting in two inmates being transported to an outside hospital." (Dkt. 1 at 44.) As a result, all general population inmates identified as Blacks and Southern Hispanics were placed on a modified program pending assessment and investigation. (Id.) The ...