The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff Derek Todd, who is proceeding without counsel and in forma pauperis, originally filed this action under 42 U.S.C. § 1983 on March 21, 2012. (Dkt. No. 1.)*fn1 After screening plaintiff's original complaint pursuant to 28 U.S.C. § 1915, the court dismissed several of plaintiff's claims with prejudice, but granted plaintiff leave to amend to allege a claim for violation of his equal protection rights under the Fourteenth Amendment to the United States Constitution. (Dkt. Nos. 3, 5.) Plaintiff then filed the operative first amended complaint, which was subsequently ordered to be served on defendants Officer Donald Bevins, Officer Brad DeWall, and the Solano County Sheriff's Department. (Dkt. Nos. 8, 11.)*fn2
On August 9, 2012, defendants filed a motion to dismiss the action for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), noticed for hearing on September 13, 2012. (Dkt. No. 16.) Plaintiff filed an opposition to the motion, and defendants filed a reply brief. (Dkt. Nos. 18, 20.) At the September 13, 2012 hearing, attorney Kathleen Williams appeared on behalf of defendants and plaintiff failed to appear.*fn3
The undersigned has fully considered the parties' briefs and appropriate portions of the record. For the reasons that follow, the undersigned recommends that defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) be granted with prejudice.
The background facts are taken from plaintiff's operative first amended complaint. (Dkt. No. 8.) Plaintiff alleges that between August 13, 2010, and February 29, 2012, plaintiff forwarded "numerous evidence packets to the Defendants requesting prosecution of the Real Parties In Interest." (Dkt. No. 8 at 2.) According to plaintiff, the "Real Parties In Interest" (individuals named Sondra Hoffman, Lisa Rapalyea, Crystal Archer, and Norma Archer) committed various crimes against plaintiff, including perjury (Cal. Pen. Code § 118); "child abuse conspiracy," "dissuading a witness conspiracy," and "intimidating a witness conspiracy" (Cal. Pen. Code § 182); "falsified court orders" (Cal. Pen. Code § 470); "violated court orders" (Cal. Pen. Code § 166); lying to police officers to have plaintiff falsely imprisoned (Cal. Pen. Code §§ 148.5, 236.1); disability discrimination (Cal. Pen. Code § 422.6); stalking (Cal. Pen. Code § 646.9); and assault (Cal. Pen. Code § 240).*fn4 (Dkt. No. 8 at 7-19.) Plaintiff further alleges that the "Defendants did not charge the Real Parties in Interest for the crimes they committed, nor did they forward the evidence to the Solano County District Attorney's Office for prosecution even though a deputy not a party to this case stated a crime was committed." (Dkt. No. 8 at 2.) On that basis, plaintiff contends that defendants violated his equal protection rights under the Fourteenth Amendment to the United States Constitution. (Id.)*fn5
DISCUSSION Legal Standard
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "To survive a motion to dismiss, 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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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 for failure to state a claim, the court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071. The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal).
In ruling on a motion to dismiss filed 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). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
Equal Protection Claims Against Individual Defendants Bevins and DeWall In the previous findings and recommendations, which were adopted by the district judge and granted plaintiff limited leave to amend his original complaint, the court, in light of plaintiff's pro se status, carefully set forth the applicable law for stating an equal protection claim under the Fourteenth Amendment. (See Dkt. Nos. 3, 5.)
As the court explained, the United States Supreme Court has observed that "[t]he State may not . . . selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 n.3 (1989); see also Elliot-Park v. Mangola, 592 F.3d 1003, 1006-07 (9th Cir. 2010) (stating that although law enforcement "officers' discretion in deciding whom to arrest is certainly broad, it cannot be exercised in a racially discriminatory fashion"). "To state a § 1983 claim for violation of the Equal Protection Clause a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (citation and quotation marks omitted); see also Enquist v. Ore. Dep't of Agric., 553 U.S. 591, 601 (2008) ("Our equal protection jurisprudence has typically been concerned with governmental classifications that affect some groups of citizens differently than others.") (citation and quotation marks omitted). The first step in equal protection analysis is to identify the defendants' classification of groups, and the "groups must be comprised of similarly situated persons so that the factor motivating the alleged discrimination can be identified." Thornton, 425 F.3d at 1166-67. (See Dkt. No. 3 at 7, 8.)
Additionally, the court noted that a plaintiff may assert what has been called a "class of one" equal protection claim, which may generally lie where an individual has been irrationally singled out for discrimination by the government. See Enquist, 553 U.S. at 601 (noting that "an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called 'class of one'"); accord Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). To succeed on a "class of one" claim, a plaintiff must demonstrate that the government intentionally treated the plaintiff differently than other similarly situated people and without a rational basis for doing so. See Gerhart v. Lake County, Mont., 637 F.3d 1013, 1021 (9th Cir. 2011). (See Dkt. No. 3 at 7 n.2.)
After outlining the above principles, the court highlighted the deficiencies in plaintiff's equal protection claims in the original complaint, explaining that plaintiff had not alleged that defendants acted with an intent or purpose to discriminate against him based on a membership in a protected class. The court also stated that plaintiff had not identified any similarly situated persons that defendants classified as a group with the purpose of treating that group ...