United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS, [Doc. No. 27]
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
James Leroye Jefferson, a California state prisoner
proceeding pro se, has filed this action against
California Prison Industry Authority staff alleging
employment discrimination in violation of his civil rights.
See Doc. No. 1. On January 29, 2018, Defendants L.
Gularte, K. Hollingsworth, and J. Neil filed a motion to
dismiss Plaintiff's claims pursuant to Federal Rule of
Civil Procedure 12(b)(6). See Doc. No. 27. Plaintiff
opposes the motion. See Doc. No. 34. For the reasons
set forth below, the Court GRANTS IN PART
and DENIES IN PART Defendants' motion to
action arises out of events occurring between 2011 and 2015
at R. J. Donovan Correctional Facility (“RJD”) in
San Diego, California. Plaintiff identifies himself as an
“African American transgender.” Complaint at
According to Plaintiff, the Prison Industry Authority
(“PIA”) interviewed him for a job in the bakery and
indicated he would be hired. Two years passed and he was not
given a job in the bakery. Plaintiff has breasts and has been
diagnosed as HIV-positive. Defendant Hollingsworth, the PIA
bakery supervisor, advised Plaintiff that they do not hire
“high risk, ” “sick” inmates.
Id. Hollingsworth told Plaintiff that she did not
want to hire an African American transgender with breasts.
Instead, she hired six (6) sex offenders with less work
experience than Plaintiff. According to Plaintiff, he has
worked for the PIA for three (3) years “on a main line
at clothing.” Id. In addition, Defendant
Hollingsworth permitted inmates employed by PIA to continue
working, despite the fact that the inmates stole from the
office, gambled, and cooked on the pipes at work. Plaintiff
contends that he has a constitutional right to work at a PIA
job which he has been denied based on his race, gender
identification, and medical disability. Plaintiff brings
claims for “gender discrimination” and
“medical discrimination.” Id. at 5-6.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the complaint. Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, plaintiffs must also plead
“enough facts to state a claim to relief that is
plausible on its face.” Fed.R.Civ.P. 12(b)(6); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
plausibility standard thus demands more than a formulaic
recitation of the elements of a cause of action, or naked
assertions devoid of further factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Instead, the complaint “must contain allegations of
underlying facts sufficient to give fair notice and to enable
the opposing party to defend itself effectively.”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
reviewing a motion to dismiss under Rule 12(b)(6), courts
must assume the truth of all factual allegations and must
construe them in the light most favorable to the nonmoving
party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
337-38 (9th Cir. 1996). The court need not take legal
conclusions as true merely because they are cast in the form
of factual allegations. Roberts v. Corrothers, 812
F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory
allegations of law and unwarranted inferences are not
sufficient to defeat a motion to dismiss.” Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). In
determining the propriety of a Rule 12(b)(6) dismissal,
courts generally may not look beyond the complaint for
additional facts. United States v. Ritchie, 342 F.3d
903, 908 (9th Cir. 2003). “A court may, however,
consider certain materials-documents attached to the
complaint, documents incorporated by reference in the
complaint, or matters of judicial notice-without converting
the motion to dismiss into a motion for summary
judgment.” Id.; see also Lee v. City of
Los Angeles, 250 F.3d 668, 688 (9th Cir 2001).
“However, [courts] are not required to accept as true
conclusory allegations which are contradicted by documents
referred to in the complaint.” Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998).
Where dismissal is appropriate, a court should grant leave to
amend unless the plaintiff could not possibly cure the
defects in the pleading. Knappenberger v. City of
Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).
se litigants “must be ensured meaningful access to
the courts.” Rand v. Rowland, 154 F.3d 952,
957 (9th Cir. 1998) (en banc). When the plaintiff is
appearing pro se, the court must construe the
pleadings liberally and afford the plaintiff any benefit of
the doubt. Thompson v. Davis, 295 F.3d 890, 895 (9th
Cir. 2001); Karim-Panahi v. Los Angeles Police
Dept., 839 F.2d 621, 623 (9th Cir. 1988). In giving
liberal interpretation to a pro se complaint,
however, the court is not permitted to “supply
essential elements of the claim that were not initially
pled.” Ivey v. Bd. of Regents of the Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The court
must give a pro se litigant leave to amend his
complaint “unless it determines that the pleading could
not possibly be cured by the allegation of other
facts.” Lopez v. Smith, 203 F.3d 1122, 1127
(9th Cir. 2000) (en banc) (quotation omitted), citing
Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir.
1987). But where amendment of a pro se
litigant's complaint would be futile, denial of leave to
amend is appropriate. See James v. Giles, 221 F.3d
1074, 1077 (9th Cir. 2000).
initial matter, Plaintiff's Eighth Amendment claim is
subject to dismissal without leave to amend as to all
defendants. As this Court recently explained:
“The Eighth Amendment, which applies to the States
through the Due Process Clause of the Fourteenth Amendment,
prohibits the infliction of ‘cruel and unusual
punishments' on those convicted of crimes.”
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991)
(internal citations omitted) (quoting U.S. Const. amend.
VIII). The Cruel and Unusual Punishments Clause may “be
applied to some deprivations that were not specifically part
of the sentence but were suffered during imprisonment.”
Id. at 297. This application rests on the premise
that “deprivations suffered by a prisoner constitute
‘punishment' for Eighth Amendment purposes.”
Helling v. McKinney, 509 U.S. 25, 37 (1993) (Thomas,
Arellano v. Ojeda, No. 14cv2401-MMA (JLB), 2018 U.S.
Dist. LEXIS 54905, at *7 (S.D. Cal. Mar. 30, 2018). It is
well-settled that deprivation of a prison job opportunity
does not constitute “punishment, ” and as such,
does not violate the Eighth Amendment. See Baumann v.
Ariz. Dep't of Corr., 754 F.2d 841, 846 (9th Cir.
1985) (“General limitation of jobs and educational
opportunities is not considered punishment.”) (citing
Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir.
1982) (“Idleness and the lack of programs are not
Eighth Amendment violations. The lack of these programs
simply does not amount to the infliction of pain.”)).
respect to his ADA claim, Plaintiff must allege:
(1) he ‘is an individual with a disability;' (2) he
‘is otherwise qualified to participate in or receive
the benefit of some public entity's services, programs,
or activities;' (3) he ‘was either excluded from
participation in or denied the benefits of the public
entity's services, programs, or activities, or was
otherwise discriminated against by the public entity;'