United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND (Dkt. 11,
William Alsup United States District Judge
an inmate at San Quentin State Prison (“SQSP”),
filed this civil rights action in state court against Jill
Lewis, a correctional officer at SQSP. Lewis removed the case
to federal court because plaintiff claims that Lewis violated
his federal constitutional rights. For the reasons discussed
below, the complaint is dismissed with leave to amend.
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, 127 S.Ct. 2197, 2200 (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, 127 S.Ct. 1955, 1964-65 (2007) (citations
omitted). A complaint must proffer "enough facts to
state a claim for relief that is plausible on its face."
Id. at 1974.
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).
alleges that Lewis publicly and falsely accused him of
stealing tools from his prison employer. He alleges that
Lewis did so on three occasions, and that she also fired him
from his prison job. Plaintiff claims that Lewis is liable
for slander and defamation of plaintiff's character, and
that she violated plaintiff's First and Fourth Amendment
rights. In a subsequent “amendment” to the
complaint, plaintiff claims that Lewis's conduct also
violated his Eighth Amendment rights.
allegations that Lewis defamed and slandered him does not
state a constitutional claim because defamation, even when
done under color of state law, does not violate the
constitution. See Paul v. Davis, 424 U.S. 693,
701-710 (1976). To be actionable, there must be more than
damage to reputation, there must be “stigma plus,
” meaning an additional violation of a federal
constitutional right or loss of “a right or status
previously recognized by state law.” Id. at
701; Cooper v. Dupnik, 924 F.2d 1520, 1532 n.22 (9th
Cir. 1991). Where, as here, the alleged additional damage is
the loss of employment, there is no stigma-plus and the
defamation does not implicate plaintiff's constitutional
rights. Id. at 1534 (stigma-plus test cannot be met
by alleging collateral consequences of the defamation, such
as loss of business or employment).
allegation that Lewis caused him to lose his job also does
not state a claim for the violation of his constitutional
rights because there is no constitutional right to a job in
prison. Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th
Cir. 1982) (no right to job). Whatever liberty or property
interests inhere in prison employment are the product of
state law. Lyon v. Farrier, 727 F.2d 766, 769 (8th
Cir.1984). There is no indication that the State of
California has created a protected liberty or property
interest in a prison job. The California Constitution states
that its provisions on inmate labor shall not be interpreted
as creating a right of inmates to work, Cal. Const. art. XIV
Section 5, and the state statute which provides for work
credits, Section 2933 of the California Penal Code 2933, has
been found not to create a protected liberty interest,
Toussaint v. McCarthy, 801 F.2d 1080, 1095 (9th Cir.
is one allegation in the complaint that could conceivably be
the basis of a cognizable claim for relief under Section
1983. On one occasion, plaintiff alleges that Lewis's
actions “were unreasonable/contained the elements of
racial bias” (ECF No. 1-1 at 6). Although there is no
liberty or property interest in a prison job, racial
discrimination in the assignment of jobs violates equal
protection. Walker v. Gomez, 370 F.3d 969, 973 (9th
Cir. 2004). Plaintiff will be given leave to amend his
complaint to allege ...