Cox v. North et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 6/6/2011 ORDERING that pltf's 2 request to proceed IFP is GRANTED; pltf to pay the $350.00 filing fee w/ an initial filing fee of $8.00 in accordance w/ the concurrent CDC order; pltf's cmplt is DISMISSED w/ leave to amend w/in 28 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ERNEST COX,
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Plaintiff,
No. CIV S-11-1217 GGH P
vs.
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T. NORTH, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42
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U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma
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pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
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§ 636(b)(1).
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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28
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U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff will be assessed an initial filing fee of $8.00. 28 U.S.C.
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§ 1915(b)(1). Plaintiff will be obligated for monthly payments of twenty percent of the preceding
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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded
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by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account
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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. 28
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U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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A complaint must contain more than a “formulaic recitation of the elements of a
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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the
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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).
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“The pleading must contain something more...than...a statement of facts that merely creates a
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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal
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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
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v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A
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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.
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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,
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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.
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1843 (1969).
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Plaintiff raises an equal protection claim that he was not hired to a prison job due
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to his race. Plaintiff wished to work as recreational aide, and a non-defendant prison employee
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stated that plaintiff would be placed on the waiting list and it would improve his chances if he
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volunteered part time, so plaintiff volunteered. Plaintiff believes that his prison record and
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prison work experience were well suited to the position. Plaintiff was told by a non-defendant
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that defendant North, who was doing the hiring, had to hire an African American. Plaintiff told
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defendant North that she needed to hire an African American, but North responded that there was
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no such obligation. A white prisoner was eventually hired. Other non-defendants informed
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plaintiff that there was no reason stated why he was not hired other than defendants did not have
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to hire an African American.
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“The Equal Protection Clause of the Fourteenth Amendment commands that no
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State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
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essentially a direction that all persons similarly situated should be treated alike.” City of
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Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 (1985) (quoting Plyler v.
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Doe, 457 U.S. 202, 216, 102 S.Ct. 2382 (1982)). When challenging his treatment with regard to
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other prisoners, a prisoner must show that his treatment is invidiously dissimilar to that received
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by other inmates. Johnson v. California, 543 U.S. 499, 511 125 S.Ct. 1141 (2005).
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Plaintiff has failed to set forth sufficient facts that he was not hired due to his race.
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Simply hiring a white prisoner does not state a cognizable equal protection claim, nor does a
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defendant stating she is not compelled to hire an African American state such a claim. Plaintiff’s
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allegations are based on statements from other non-defendants, which fails to state a claim for
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relief that is plausible on its face. See Iqbal.
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Plaintiff’s complaint is dismissed, but he may file an amended complaint within
28 days of service of this order. Failure to file an amended complaint will result in a
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recommendation that this action be dismissed.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms
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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless
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there is some affirmative link or connection between a defendant’s actions and the claimed
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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,
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vague and conclusory allegations of official participation in civil rights violations are not
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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in
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order to make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an
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amended complaint be complete in itself without reference to any prior pleading. This is
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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original
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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an
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original complaint, each claim and the involvement of each defendant must be sufficiently
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alleged.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.
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Plaintiff will be assessed an initial filing fee of $8.00. All fees shall be collected and paid in
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accordance with this court’s order to the Director of the California Department of Corrections
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and Rehabilitation filed concurrently herewith.
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3. Plaintiff’s complaint is dismissed for the reasons discussed above, with leave
to file an amended complaint within twenty-eight days from the date of service of this Order.
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Failure to file an amended complaint will result in a recommendation that this action be
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dismissed.
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DATED: June 6, 2011
/s/ Gregory G. Hollows
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GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
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GGH: AB
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