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Ruben Dario Garcia, Jr., Cdcr # J-73373 v. J. Cluck; Asbury; Strickland; Doren; J. Burnaugh; A. Pittman

July 30, 2012

RUBEN DARIO GARCIA, JR., CDCR # J-73373
PLAINTIFF,
v.
J. CLUCK; ASBURY; STRICKLAND; DOREN; J. BURNAUGH; A. PITTMAN; JOHN/JANE DOES; GARCIA; HERNANDEZ; C.P. FRANCO; A. ALLAMBY; ROBLES; C. BUSHIN; K. BALAKIN; R. COBB; HIRING AUTHORITY DESIGNEE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

I. PROCEDURAL HISTORY

On March 1, 2012, Plaintiff, a state inmate currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD") located in San Diego, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff also filed a certified copy of his inmate trust account which the Court construed as a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). On May 23, 2012, the Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). (See May 23, 2012 Order at 9-10.) Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. (Id.) On July 6, 2012, Plaintiff filed his First Amended Complaint ("FAC").

II. SCREENING PURSUANT TO 28U.S.C.§§1915(e)(2)&1915A(b)

As the Court stated in its previous Order, the Prison Litigation Reform Act ("PLRA")'s amendments to 28 U.S.C. § 1915 obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 2000) (§ 1915A).

To state a claim under § 1983, Plaintiff must allege that: (1) the conduct he complains of was committed by a person acting under color of state law; and (2) that conduct violated a right secured by the Constitution and laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

1. Count 1 - 42 U.S.C. § 1983 conspiracy

In Plaintiff's First Amended Complaint, he alleges a number of Defendants acted "in concert chain conspiracy" with the intent to retaliate against Plaintiff for filing administrative grievances. While Plaintiff may have alleged facts sufficient to state a retaliation claim against some of the Defendants, he has failed to allege facts sufficient to state a conspiracy claim against any of the named Defendants.

To the extent that Plaintiff is attempting to plead a conspiracy under section 1983, he must allege "'an agreement or meeting of the minds to violate constitutional rights,'" Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional rights. Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). "'To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.'" Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541). Conclusory allegations of conspiracy as Plaintiff has alleged, here, however, are insufficient to support a claim under section 1983. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iabal, 556 U.S. 662, 678 (2009). Thus, Plaintiff's conspiracy claims found in "Count 1" are dismissed for failing to state a claim upon which § 1983 relief may be granted.

2. Count 2 and 3 - Retaliation claims

As stated above, the Court finds that Plaintiff has adequately stated a retaliation claim under both counts.

3. Count 4 - Equal Protection

Plaintiff alleges that Defendants have violated his right to "equal protection/treatment under the law." (FAC at 23.) 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 v. Cleburne Living Center, Inc. 473 U.S. 432, 439 (1985). In order to state a claim under § 1983 alleging violations of the equal protection clause of the Fourteenth Amendment, Plaintiff must allege facts which demonstrate that he is a member of a protected class. See Harris v. McRae, 448 U.S. 297, 323 (1980) (indigents); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985) (listing suspect classes). In this matter, Plaintiff has neither sufficiently plead that he is a member of a suspect class nor has he plead adequate facts to demonstrate that Defendants acted with an intent or purpose to discriminate against him based upon his membership in a protected class. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999).

Thus, the Court finds that Plaintiff's allegations are insufficient to prove invidious discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Plaintiff's Fourteenth Amendment equal protection claims are dismissed ...


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