The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner at California State Prison-Sacramento ("CSP-SAC"),*fn1 now proceeding with retained counsel, filed this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against eight defendants: CSP-SAC Warden Virga, Associate Warden Lizarraga, Captain Mini, Lieutenant Cannedy, Sergeant Hansen, Sergeant Baker, Appeals Examiner Holstrom, and Inmate Appeals Branch Chief Foston. These defendants, through the California Attorney General, filed a motion to dismiss plaintiff's First Amended Complaint.*fn2
Plaintiff filed an opposition, and defendants filed a reply. For the reasons that follow, the undersigned recommends that this action proceed on plaintiff's Equal Protection and Eighth Amendment claims against defendants Virga, Lizarraga, and Mini.
This action proceeds on plaintiff's "Claim I," set forth in his First Amended Complaint ("FAC"), filed in pro se on March 7, 2011. (Dkt. No. 22.) As found by this court on August 26, 2011 (Dkt. No. 35), this broad contention appeared to allege potentially cognizable Fourteenth Amendment due process and equal protection claims, and Eighth Amendment claims, based on allegations that CSP-SAC improperly included "Non-Affiliated Black" inmates (and hence plaintiff) in a prolonged "Modified Program" (lockdown), following a January 19, 2010 riot between "Black disruptive groups" and "Southern Hispanics." The court found that plaintiff was precluded from pursuing his "Claim II," premised on the allegedly "staged release" of inmates with the intent to create interracial fights to justify continuation of the Modified Program, due to plaintiff's failure to timely exhaust his administrative remedies. (Dkt. No. 35 at 3-4.) The court also denied plaintiff's efforts to pursue this case as a class action. (Id. at 2.)
In their instant motion to dismiss, defendants have summarized the pertinent allegations of the SAC; plaintiff has not objected to this summary, which the court finds accurate and therefore recounts in full (Dkt. No. 44-1 at 9-11):
On January 19, 2010, a riot broke out between "Black disruptive groups" and "Southern Hispanics" in the "B Facility" of California State Prison, Sacramento ("CSP-SAC"). (ECF [Dkt.] No. 22 at 6:21-27.) In response, staff immediately placed all inmates on modified program. (ECF No. 22 at 7:1-2.) On January 21, 2010, CSP-SAC staff returned inmates classified as Whites, Asians, and "Others" to normal programming, while all African American and all Hispanic inmates remained on modified program. (ECF No. 22 at 7:2-7.) Plaintiff, an "unaffiliated" African American inmate, was among those inmates who remained on modified program. (Id.)
On January 30, 2010, Plaintiff filed a group inmate grievance requesting that he and all other "unaffiliated" African American inmates be taken off of modified program and returned to normal programming along with the Whites, Asians, and "Others." (ECF No. 22 at 7:13-20.) Defendant Sergeant Hansen thereafter interviewed Plaintiff as part of the first level review of the inmate grievance. (ECF No. 22 at 7:22-23.) Sergeant Hansen used language like "race riot" and "security threat," and was aware of the "Mexican Code" to attack any African American inmate. (ECF No. 22 at 7:23-27.) Sergeant Hansen, however, failed to provide a reasonable justification as to why all African American inmates needed to be on modified program since the Hispanic inmates could not present a threat to them while they were all on modified program. (ECF No. 22 at 7:22-8:18.) Sergeant Hansen also agreed that sixty days was "long enough" for staff to investigate and return the "unaffiliated" African American inmates to normal programming. (ECF No. 22 at 8:19-23.)
Defendant Warden Virga signed the second level review to Plaintiff's inmate grievance. (ECF No. 22 at 9:3-13, Ex. A.) Warden Virga denied the inmate grievance and failed to explain why Whites, Asians, and "Others" were allowed a normal program while African Americans and Hispanics were on a modified program. (ECF No. 22 at 9:3-13.)
Plaintiff's inmate grievance then proceeded to the third level of review, where it was reviewed by Appeal Examiner Holstrom and Inmate Appeals Branch Chief Foston. (ECF No.22 at 9:23-28; 11:6-12:1.) At this point, CSP-SAC staff, including Sergeant Hansen, had verbally stated that "unaffiliated" African American inmates were being kept on modified program because of concern that Hispanic inmates would attack any African American. (ECF No. 22 at 9:23-28.) But, all Hispanics were on modified program and did not have any access to the general population yard. (ECF No. 22 at 9:28-10:1.) The third level response stated that, according to Lieutenant Cannedy, a controlled release of "unaffiliated" inmates would begin June 14, 2010, but was also contradictory because it acknowledged that racial violence would occur if African American inmates were placed on the same yard as Hispanics. (ECF No. 22 at 11:6-12:12.)
A week before June 14, 2010, Plaintiff attempted to clarify with Defendant Sergeant Baker that only "unaffiliated" African American inmates, and not Hispanic inmates, would be returned to normal programming because of concern over the Hispanics' active "code" to attack any African American inmate. (ECF No. 22 at 12:22-27.) Unidentified correctional staff staged "race incidents," knowing such scenes would result in the continued modified program for all African American inmates. (ECF No. 22 at 12:27-13:14.)
Facility Captain Mini and Associate Warden Lizarraga signed all B yard memoranda, carrying out a policy of racial discrimination, and were aware of and condoned the modified program that punished the African American "unaffiliated" inmates. (ECF No. 22 at 14:12-28.) During the course of the modified program, "unaffiliated" African American inmates not involved in the January 19, 2010 race riot were subjected to modified program from January 19, 2010, through April 6, 2010. (ECF No. 22 at 10:2-24.) That modified program included: continuous cell confinement twenty-four hours per day; no outside exercise; no religious services; access to law library was limited to the paging system; no inmate association or visits; no telephone calls; and no or limited food canteen. (ECF No. 22 at 10:2-24.) Beginning on April 7, 2010, African American inmates were afforded outdoor exercise in the small concrete yards for two hours each week. (ECF No. 22 at 10:24-11:6.)
Defendants move to dismiss each of plaintiff's legal claims pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a cognizable claim. Alternatively, defendants contend generally that they are entitled to qualified immunity.*fn3
A. Legal Standards Pursuant to Federal Rule of Civil Procedure 12(b)(6)
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); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). 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). "[T]he court is obligated to draw only reasonable factual inferences" in plaintiff's favor. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (citation omitted). Nevertheless, "in a line of cases stretching back nearly 50 years, we have held that in dismissing for failure to state a claim under Rule 12(b)(6), a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts."*fn4 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations and internal quotation marks omitted). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.
Supporting Qualified Immunity "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009). The defendant bears the burden of establishing qualified immunity. Crawford-El v. Britton, 523 U.S. 574, 586-87 (1998). The Supreme Court, in Saucier v. Katz, 533 U.S. 194 (2001), outlined a two-step approach to qualified immunity. The first step requires the court to ask whether, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201. The second inquiry is whether the right was clearly established, in other words, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. In Pearson, supra, 555 U.S. 223, the Supreme Court ...