United States District Court, N.D. California, Eureka Division
ORDER OF DISMISSAL WITH LEAVE TO AMEND
J. VADAS UNITED STATES MAGISTRATE JUDGE
a state prisoner, has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. He has been granted leave to
proceed in forma pauperis. (Doc. 6.)
Standard of Review
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). In its review the court must identify any
cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. Id. at 1915A(b)(1), (2).
Pro se pleadings must be liberally construed. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Rule of Civil Procedure 8(a)(2) requires only "a short
and plain statement of the claim showing that the pleader is
entitled to relief." "Specific facts are not
necessary; the statement need only '"give the
defendant fair notice of what the . . . . claim is and the
grounds upon which it rests."'" Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
Although in order to state a claim a complaint "does not
need detailed factual allegations, . . . a plaintiff's
obligation to provide the 'grounds' of his
'entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. . . . Factual allegations
must be enough to raise a right to relief above the
speculative level." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A
complaint must proffer "enough facts to state a claim to
relief that is plausible on its face." Id. at
570. The United States Supreme Court has recently explained
the "plausible on its face" standard of
Twombly: "While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief." Ashcroft v. Iqbal, 556 U.S. 662,
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged deprivation was committed by a
person acting under the color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988).
a man, presents an equal protection violation based on the
differing treatment of women at female institutions.
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, 473 U.S. 432, 439 (1985)
(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982));
Thornton v. City of St. Helens, 425 F.3d 1158, 1168
(9th Cir. 2005) (evidence of different treatment of unlike
groups does not support an equal protection claim).
Classifications such as those based on gender, are
"subject to somewhat heightened review" and
"will survive equal protection scrutiny to the extent
they are substantially related to a legitimate state
interest." Id. at 441.
argues that he is denied certain clothing, foods, drinks,
objects, and appliances from vendors that female inmates with
a similar classification status at other prisons can
purchase. Plaintiff states that he "is not transgender
nor transexual, nor does he exhibit or claim any gender
identity other than male. [He] does not identify
psychologically with the female sex." Complaint at 3.
Plaintiff repeatedly refers to vendor products, but provides
no specific details and it is not clear what items he is
unable to purchase that female inmates at other prisons can
purchase. While he has set forth the basic elements of an
equal protection claim, he has failed to present sufficient
allegations that plausibly give rise to an entitlement to
relief. See Iqbal, 556 U.S. at 679. The complaint
will be dismissed with leave to amend for plaintiff to
provide more information about specific items he is unable to
purchase that women are allowed to purchase. He must provide
additional information so defendants, if they are served, can
adequately respond to the allegations. See Gonzalez v.
Mullen, 2013 WL 1333560, at *3-4 (N.D. Cal. March 29,
2013) (plaintiff identified specific items that females could
purchase but men were prohibited from obtaining, though
summary judgment granted for defendants).
complaint is DISMISSED with leave to amend in accordance with
the standards set forth above. The amended complaint must be
filed within twenty-eight (28) days of the date this order is
filed and must include the caption and civil case number used
in this order and the words AMENDED COMPLAINT on the first
page. Because an amended complaint completely replaces the
original complaint, plaintiff must include in it all the
claims he wishes to present. See Ferdik v. Bonzelet,
963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate
material from the original complaint by reference. Failure to
amend within the designated time will result in the dismissal
of this case.
is the plaintiff's responsibility to prosecute this case.
Plaintiff must keep the court informed of any change of
address by filing a separate paper with the clerk headed
"Notice of Change of Address, " and must ...