# Al Khafati v. Covello

> District Court, S.D. California · March 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10080810

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10080810

## How later opinions describe it (automated extraction)

- noting that screening pursuant to § 1915A “incorporates the familiar standard 26 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 27 12(b)(6)”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 Case No.: 3:19-cv-01811-LAB-LL
HAYDAR AL KHAFATI,
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CDCR # AD6321, ORDER DISMISSING FIRST
13 AMENDED COMPLAINT FOR
Plaintiff,
FAILURE TO STATE A CLAIM
14
v. PURSUANT TO 28 U.S.C. §
15 1915(e)(2)(B) AND 28 U.S.C. §
BRIAN ROBERTS, Commissioner;
1915A(b)
16 RICHARD GUERRERO, Dep. Comm.;
DIANE DOBB, Commissioner; CDCR,
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Defendants.
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23 Plaintiff Haydar Al Khafati, a prisoner at the Correctional Training Facility
24 (“CTF”) in Soledad, California, has filed a pro se civil rights complaint pursuant to 42
25 U.S.C. Section 1983. The Court granted Plaintiff’s Motion to Proceed In Forma Pauperis
26 (“IFP”), but dismissed Plaintiff’s initial Complaint (ECF No. 1) for failing to state a
27 claim pursuant to 28 U.S.C. Section 1915(e)(2)(B) and 28 U.S.C. Section 1915A(b) and
1 granted Plaintiff leave to amend. (See ECF No. 4.)
2 Plaintiff subsequently filed a First Amended Complaint alleging that the California
3 Department of Corrections and Rehabilitation (“CDCR”) and Parole Board
4 Commissioners or Deputy Commissioners Brian Roberts, Richard Guerrero, and Diane
5 Dobb (collectively, “Defendants”) violated his due process and equal protection rights by
6 failing to ensure that Plaintiff received access to certain educational and vocational
7 training Plaintiff believes is necessary for him to obtain parole. (See First Am. Compl. at
8 3-4.)
9 I. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A
10 A. Standard of Review
11 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
12 Answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
13 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
14 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
15 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
16 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
17 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
18 the targets of frivolous or malicious suits need not bear the expense of responding.’”
19 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
20 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
21 “The standard for determining whether a plaintiff has failed to state a claim upon
22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
24 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
25 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
26 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
27 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
1 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
2 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
3 While the court “ha[s] an obligation where the petitioner is pro se, particularly in civil
4 rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of
5 any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v.
6 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential elements
7 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673
8 F.2d 266, 268 (9th Cir. 1982).
9 “Courts must consider the complaint in its entirety,” including “documents
10 incorporated into the complaint by reference” to be part of the pleading when
11 determining whether the plaintiff has stated a claim upon which relief may be granted.
12 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal.
13 Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c)
14 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading
15 for all purposes.”).
16 B. Factual Allegations
17 Plaintiff’s Complaint focuses on two parole hearings, one on July 29, 2014 and
18 another on August 15, 2019, and the alleged failure of the commissioners presiding over
19 those hearings and the CDCR to ensure that Plaintiff received access to certain
20 educational or vocational programs Plaintiff believes are necessary for him to receive
21 parole. (See First Am. Compl. at 3-4.)
22 At the July 29, 2014 hearing, presided over by Defendants Roberts and Guerrero,
23 Plaintiff was “issued instructions . . . directing [him] to obtain (at least one vocation and
24 possibly two vocations),” and that “in the event on-site programs are not
25 available . . . [P]laintiff ‘[s]hould work with his correctional counselor to develop a
26 vocation until a vocation can be assigned to plaintiff.’” (See id. at 3 (ostensibly quoting
27 Exhibit A); but see id. Ex. A, at 9 (“[Plaintiff was instructed to obtain at least one
1 vocation and if possible two vocations. Where on-site vocation programs are not
2 available to inmate he should work with his correctional counselor to develop one and
3 until he can attend he should obtain books from the library on the vocation, read them
4 and prepare a book report to present to the lifer panel on what he has read, learned and
5 how he can apply it if given a parole date.”).) Plaintiff alleges that it was Roberts who
6 issued these instructions, and that “[l]iability attaches” for violating Plaintiff’s Fifth and
7 Fourteenth Amendment rights to “Due Process and Equal Treatment under the Laws”
8 “where . . . [Roberts] knew that plaintiff [had] no formal education and does not speak
9 [E]nglish much at all; and . . . failed to alert the assignment of Plaintiff’s needs.”1 (Id. at
10 3.) Guerrero “simply followed the intangible lead set by [Roberts] and allowed plaintiff’s
11 rights to be violated by failing to cause the institution and Assignment Office to adhere to
12 its instructions to Plaintiff” to develop a vocation and obtain additional education. (See
13 id.) Although the First Amended Complaint does not state directly whether Plaintiff
14 received access to vocational programs, it implies that he did not. (See id. at 3.) Plaintiff
15 also notes that he made “vigorous efforts” to take the Test of Adult Basic Education
16 (“TABE”), “which would cause plaintiff to be placed in an English/ Spanish [sic]
17 Lear[n]ing class” and lead to Plaintiff “eventually obtain[ing] a GED as directed by the
18 defendant.” (Id.) Despite those efforts, Plaintiff has not been administered the TABE
19 test. (See id. at 2-3.)
20 Defendant Diane Dobb presided over Plaintiff’s August 15, 2019 parole hearing.
21 (Id. at 4.) Plaintiff alleges that Dobb “knew at the hearing that [p]laintiff had been denied
22 necessary education to meet the initial Board Commissioner’s instructions to among
23 other things [o]btain a GED.” (Id.) Plaintiff does not allege that Dobb relied on his
24

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1 Elsewhere in Plaintiff refers to the alleged failure of Defendants Roberts and Guerrero to “issue a
26 follow-up order to be placed in the C-File,” but does not explain how, if at all, that differs from his
allegations regarding their failure to alert the “Assignment Office” about Plaintiff’s alleged need to
27
complete educational and vocational training. (See First Am. Compl. at 2-3.)
1 failure to obtain a GED in denying him parole (or even state whether he was denied
2 parole at all), but the Court assumes that she did. (See id.) Dobb allegedly “den[ied]
3 [p]laintiff equal treatment where she based her equal treatment violations using plaintiff’s
4 history of drug use and plaintiff’s current enrollment in a mental health delivery system
5 within the CDCR . . . .” (Id.) Plaintiff argues that this also violates due process because
6 “it is well settled law that a Board of Parole Hearing Commissioner may not categorically
7 exclude [P]laintiff from Due Process entitlements based on plaintiff’s mental
8 disability . . . .” (Id.) Additionally, Plaintiff refers to Exhibit C to the Complaint, which
9 is a document written by Plaintiff taking issue with some of the factual assertions Dobb
10 made during his parole hearing, specifically those relating to the facts of Plaintiff’s
11 underlying criminal offense, prior drug use, and past and present mental health treatment.
12 (See generally id. at Ex. C, 25-35.)
13 Plaintiff also alleges that the CDCR is liable for these alleged violations of due
14 process and equal protection because it “represents the defendants and each of them
15 under color of law and is equally liable to be sued in its official capacity . . . .” (Id. at 5.)
16 Although Plaintiff does not explain further, he states that “[w]hile the posture of the
17 instant Civil Complaint is based on the defendants’ violating plaintiff’s Due Process and
18 Equal Treatment rights . . . by inflicting cruel and unusual punishment on [P]laintiff;
19 [P]laintiff asks of this court to take judicial notice that [P]laintiff’s intent by this
20 complaint is to address the defendant’s violations associated with the infliction of cruel
21 and unusual punishment and Due Process violations, respectively.” (Id.)
22 In addition to $750,000 in damages and $1.25 million in punitive damages,
23 Plaintiff seeks an injunction “preventing the defendants from using their failure to TABE
24 test plaintiff in the BPH process.” (Id. at 7.)
25 C. Analysis
26 1. Absolute Immunity
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1 As a threshold matter, Defendants Roberts, Guerrero, and Dobb are absolutely
2 immune from Section 1983 damages claims for decisions granting, denying, or revoking
3 parole. See Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir. 1991) (“Although a
4 section 1983 action may be maintained against officials acting in their individual
5 capacities, parole board officials are entitled to absolute immunity from liability for
6 damages for their actions taken when processing parole applications.”). “[P]arole board
7 officials of the BPT are entitled to absolute quasi-judicial immunity for decisions ‘to
8 grant, deny, or revoke parole’ because these tasks are ‘functionally comparable’ to tasks
9 performed by judges.” Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004) (quoting
10 Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981)). This immunity extends not
11 only to actions “taken when processing parole applications,” see Bermudez, 936 F.2d at
12 1066, but also “to parole officials[’] . . . ‘imposition of parole conditions’ and . . .
13 ‘execution of parole revocation procedures . . . .’” Swift, 384 F.3d at 1189 (quoting
14 Anderson v. Boyd, 714 F.2d 906, 909 (9th Cir. 1983), overruled on other grounds as
15 recognized in Swift, 384 F.3d at 1190).
16 Plaintiff’s claims against Defendant Dobb, which focus exclusively on the facts
17 and reasoning underlying her decision to deny Plaintiff parole, are clearly barred by this
18 doctrine.2 See Swift, 384 F.3d at 1189 (distinguishing between “quasi-judicial” actions
19

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2 As mentioned previously, Plaintiff contends that “it is well settled law that a Board of Parole Hearing
21 Commissioner may not categorically exclude [P]laintiff from Due Process entitlements based on
plaintiff’s mental disability . . . .” (First Am. Compl. at 4.) However, the case on which Plaintiff
22 apparently bases this conclusion, Thompson v. Davis, 295 F.3d 890, 897-98 (9th Cir. 2002), arose under
the Americans with Disabilities Act (“ADA”), not the Due Process Clause, and does not hold that the
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Due Process Clause (or any other provision of the Constitution) bars parole boards from considering a
24 prisoner’s mental health or prior drug use in determining whether to grant parole. (See First Am.
Compl. Ex. C (citing Thompson).) Moreover, the facts alleged in Plaintiff’s Complaint do not
25 demonstrate that Defendant Dobb categorically excluded individuals with mental health issues or prior
drug use from parole. (See id. at 4.) Instead, Plaintiff alleges that Dobb considered Plaintiff’s individual
26 circumstances and denied him parole based on those individual circumstances. (See id. at 4 (alleging
that Dobb relied on “plaintiff’s history of drug use and plaintiff’s current enrollment in a mental health
27
delivery system within the CDCR . . .” in denying parole (emphasis added)); see also id. at Ex. C.)
1 that relate to the decision to grant, deny, or revoke parole, for which parole officials have
2 absolute immunity, and other actions like reporting parole violations, for which officials
3 have only qualified immunity); Gay v. Parsons, No. 16-cv-5998-CRB, 2019 WL
4 3387954, at *5 (N.D. Cal. July 26, 2019) (stating that the exercise of discretion in
5 granting or denying parole is akin to the role of a judge, and therefore parole officials are
6 absolutely immune when they exercise that discretion). Although Plaintiff’s claims
7 against Defendants Roberts and Guerrero are superficially different in that they center on
8 Roberts’ and Guerrero’s allegedly failure to ensure Plaintiff received access to the
9 educational or vocational training they deemed necessary for Plaintiff to obtain parole,
10 because “the imposition of parole conditions is an integral part of the decision to grant
11 parole,” absolute immunity extends to this conduct as well. See Anderson, 714 F.2d at
12 909.
13 As a result, Plaintiff’s damages claims against Defendants Roberts, Guerrero, and
14 Dobb are dismissed sua sponte for failure to state a claim. See 28 U.S.C. §
15 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621
16 F.3d at 1004.
17 2. Due Process
18 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person
19 of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
20 “The requirements of procedural due process apply only to the deprivation of interests
21 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of
22 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a
23 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a
24 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v.
25 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara,
26 995 F.2d 898, 904 (9th Cir. 1993)).
27
1 Plaintiff’s due process allegations are similar to ones considered and rejected by
2 the Eastern District of California in Andersen v. Kernan, No. 1:16-cv-00369-LJO-BAM
3 (PC), 2017 WL 5608089 (E.D. Cal. Nov. 21, 2017), aff’d 735 F. App’x 463 (9th Cir.
4 2018). In Andersen the plaintiff was an inmate who claimed that his inability to enroll
5 (based on limited space and exclusions for life inmates and sex offenders) in certain
6 treatment or rehabilitation programs rendered him functionally ineligible for parole. See
7 id. at *2. Thus, the Andersen plaintiff alleged, “the state is prolonging his sentencing by
8 impeding his ability to qualify for parole and he will not be able to meet the criteria of the
9 BPH panel for the next hearing or any other hearing because he cannot show evidence
10 that he participated in the required programs, groups, therapy, treatment and education.”
11 Id. The Andersen Court rejected these contentions, concluding that the plaintiff failed to
12 state a due process claim because: (1) there is no constitutionally guaranteed liberty
13 interest in rehabilitative or educational programs; (2) there is no liberty interest in parole
14 arising from the Constitution provided that the denial of parole meets the requirements of
15 procedural due process (i.e. that the prisoner was present at the hearing, had an
16 opportunity to be heard, and was provided with a statement of reasons for the parole
17 board’s decision); and (3) there was no violation of substantive due process in “fail[ing]
18 to provide affirmative assistance in meeting BPH’s criteria for early release” because the
19 conduct is not “arbitrary, [n]or [did it] shock the conscience, and violate the decencies of
20 civilized conduct.” See id. at *2-3 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833,
21 846-47 (1998)). The Court also held that the plaintiff failed to allege an Eighth
22 Amendment cruel and unusual punishment claim based on the same underlying conduct
23 because “‘deprivation of rehabilitation and educational programs does not violate the
24 Eighth Amendment’” Id. at *2-4 (quoting Rhodes v. Chapman, 452 U.S. 337, 348
25 (1981)).
26 Much of the same reasoning applies in this case. As the Court noted in dismissing
27 Plaintiff’s initial complaint, there is no Eighth or Fourteenth Amendment right to access
1 testing or educational and rehabilitation programs in prison.3 See ECF No. 4, at 6; see
2 also Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (depriving prisoner of rehabilitation
3 and educational programs does not violate Eighth Amendment); Rizzo v. Dawson, 778
4 F.2d 527, 530-31 (9th Cir. 1985) (absence of property interest in educational program in
5 prison precluded Fourteenth Amendment claim); Hoptowit v. Ray, 682 F.2d 1237, 1254-
6 55 (9th Cir. 1982) (“[T]here is no constitutional right to rehabilitation.”), abrogated on
7 other grounds by Sandin v. Connor, 515 U.S. 472 (1995)).
8 Additionally, state law does not create a liberty interest in rehabilitative programs
9 “for purposes of parole [because] . . . participation is not statutorily required for parole
10 suitability.” Eckstrom v. Beard, No. 2:16-cv-0275-KJM-AC-P, 2018 WL 6335407, at *4
11 (E.D. Cal. Dec. 5, 2018) (internal quotation marks omitted) (citing 15 Cal. Code Reg. §
12 2281 (programming is one of several factors to be considered in determining suitability
13 for parole)), report and recommendation adopted in relevant part, 2019 WL 479633, at
14 *1 (E.D. Cal. Feb. 7, 2019). “To the extent that California law creates a liberty interest in
15 parole, however, ‘the Due Process Clause requires fair procedures for its vindication,’
16 and federal courts merely ‘review the application of those constitutionally required
17 procedures.’” Andersen, 2017 WL 5608089, at *3 (quoting Swarthout v. Cooke, 562 U.S.
18 216, 220 (2011)). As Plaintiff’s Complaint and the attached exhibits make clear, (see
19 First Am. Compl. at 3-4, Exs. A, C.) the requirements of procedural due process were
20 satisfied because Plaintiff was present at both parole hearings, had an opportunity to be
21 heard, and was provided with a statement of reasons why parole was denied. See Wright
22 v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (“To state a procedural due process claim,
23 [a plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution;
24
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26 3 For this reason, to the extent Plaintiff wishes to assert an Eighth Amendment cruel and unusual
punishment claim through his periodic and factually undeveloped invocations of the phrase “cruel and
27
unusual punishment,” those claims are dismissed. (See First Am. Compl. at 4, 6.)
1 (2) a deprivation of the interest by the government; [and] (3) lack of process.’” (quoting
2 Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993))).
3 To the extent Plaintiff alleges a deprivation of substantive due process rather than
4 procedural due process, that claim also fails. To violate substantive due process, the
5 conduct at issue must be arbitrary, “‘shock[] the conscience,’” or “violate[] the ‘decencies
6 of civilized conduct.’” Lewis, 523 U.S. at 846-47 (quoting Rochin v. California, 342 U.S.
7 165, 17 Although Plaintiff alleges that Defendants failed to provide help in meeting the
8 criteria for early release, he does not allege that the rehabilitative or educational programs
9 he seeks are wholly unavailable, or otherwise allege arbitrary conduct that shocks the
10 conscience. (See First Am. Compl. at 3-4.)
11 Thus, even assuming Plaintiff’s claims against Defendants Roberts, Guerrero, and
12 Dobb are not barred by absolute immunity, his due process claims must be dismissed in
13 their entirety sua sponte for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28
14 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.
15 3. Equal Protection
16 The “Equal Protection Clause of the Fourteenth Amendment commands that no
17 State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’
18 which is essentially a direction that all persons similarly situated should be treated
19 alike.”4 City of Cleburn v. Cleburn Living Ctr., 473 U.S. 432, 439 (1985). Plaintiff does
20 not allege any facts suggesting that he was treated differently from others similarly
21 situated based on his membership in a protected class, nor does he allege a classification
22 that implicates fundamental rights. See Lee v. City of Los Angeles, 250 F.3d 668, 686
23

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4 Although Plaintiff purports to rely on the “FIFTH AMENDMENT right to EQUAL TREATMENT,”
25 (see First Am. Compl. at 2 (emphasis in original)), the Fifth Amendment does not contain an equal
protection clause. See U.S. Const. amend. V. In any event, however, “the concepts of equal protection
26 and due process . . . are not mutually exclusive,” Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954), and
“Equal Protection analysis in the Fifth Amendment area is the same as that under the Fourteenth
27
Amendment.” Buckley v. Valeo, 424 U.S. 1, 93 (1976).
1 (9th Cir. 2001). As a result, Plaintiff appears to be proceeding with a “class of one” equal
2 protection claim. See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir.
3 2008) (“When an equal protection claim is premised on unique treatment rather than on a
4 classification, the Supreme Court has described it as a ‘class of one’ claim.”). “In order
5 to claim a violation of equal protection in a class of one case, the plaintiff must establish
6 that the [defendant] intentionally, and without rational basis, treated the plaintiff
7 differently from others similarly situated.” Id.; see also Vill. of Willowbrook v. Olech,
8 528 U.S. 562, 564 (2000) (“Equal protection rights are violated when (1) a person is a
9 member of an identifiable class; (2) that person is intentionally treated differently from
10 others similarly situated; and (3) there is no rational basis for the difference in
11 treatment.”).
12 Plaintiff has not alleged any of the necessary elements of a claim for denial of
13 equal protection. As an initial matter, parole decisions and other similarly discretionary
14 actions like ensuring Plaintiff receives access to educational or vocational training may
15 not give rise to class of one equal protection claims because “treating like individuals
16 differently is an accepted consequence of the discretion granted.” See Engquist v. Or.
17 Dep’t of Ag., 553 U.S. 591, 603 (2008); see also Towery v. Brewer, 672 F.3d 650, 660
18 (9th Cir. 2012) (holding that with respect to discretionary decisions “[a]bsent any pattern
19 of generally exercising the discretion in a particular manner while treating one individual
20 differently and detrimentally, there is no basis for Equal Protection scrutiny under the
21 class-of-one theory.” (emphasis in original)).
22 Even assuming that Defendants’ discretionary decisions denying Plaintiff parole or
23 failing to ensure that he received access to educational or vocational training so that he
24 could receive parole could violate the Equal Protection Clause on a “class of one” theory,
25 Plaintiff still must allege that he was “intentionally treated differently from others
26 similarly situated.” See Vill. of Willowbrook, 528 U.S. at 564. But his complaint does
27 not offer any “factual content” that would allow the Court to “draw the reasonable
1 inference” that he was, in fact, treated differently from others similarly situated or that
2 any difference in treatment was intentional. See Iqbal, 556 U.S. at 568 (“[U]nadorned,
3 the-defendant-unlawfully-harmed-me accusation[s]” are insufficient to show entitlement
4 to relief). Plaintiff’s Complaint merely alleges that Defendants violated his right to
5 “Equal Treatment under the Laws,” (See First Am. Compl. at 3-4.), or, at best, that
6 Defendant Dobb’s consideration of Plaintiff’s prior drug use and mental health treatment
7 violated equal protection in some unspecified manner. (See id. at 4.) These conclusory
8 allegations are insufficient. See, e.g., George v. Uribe, No. 11-CV-70 JLS (RBB), 2012
9 WL 993243, at *6 (S.D. Cal. Mar. 23, 2012) (concluding that allegations that defendants
10 “intentionally treated Plaintiff differently from others” who participated in a prison riot
11 was insufficient without supporting facts). Additionally, Plaintiff fails to allege any facts
12 from which the Court could conclude that Defendants’ actions were irrational or lacked a
13 legitimate penological interest. See Barbarin v. Dep’t of Corrs. & Rehab., No. 3:19-cv-
14 1714-JAH-RBB, 2019 WL 5454435, at *4 (S.D. Cal. Oct. 24, 2019) (plaintiff “fail[ed] to
15 allege any facts from which the Court could conclude that [Defendants’] policy . . . lacks
16 a rational or penological interest.”).
17 4. Official Capacity Claims Against All Defendants
18 Plaintiff’s allegations that Defendants violated his constitutional rights in their
19 official capacities must also be dismissed for an additional reason. The Complaint
20 includes check boxes to indicate whether Plaintiff intends to sue Defendants in their
21 individual or official capacities, or both. (See First Am. Compl. at 2.) Plaintiff checked
22 the boxes for both. (See id.) “[A] suit against a state official in his or her official
23 capacity is not a suit against the official but rather is a suit against the official’s office.”
24 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). As a result, Plaintiff’s
25 official capacity claims must be dismissed sua sponte for failure to state a claim because:
26 (1) there is no conduct by a “person” as required for a claim under Section 1983, and (2)
27 the Eleventh Amendment bars suits for damages against state officials sued in their
1 official capacity absent an express waiver of immunity by Congress or the state, neither
2 of which is present under these circumstances. See id.; Kentucky v. Graham, 473 U.S.
3 159, 169 (1985); see also 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).
4 5. Claims Against CDCR
5 Plaintiff’s claims against the CDCR also must be dismissed. The CDCR is not a
6 “person[]” subject to suit under Section 1983 and is entitled to immunity from suit for
7 monetary damages under the Eleventh Amendment. See Seminole Tribe of Fla. v.
8 Florida, 517 U.S. 44, 53-54 (1996); Groten v. California, 251 F.3d 844, 851 (9th Cir.
9 2001) (citing Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993)); see also
10 Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 680947, at *3 (S.D.
11 Cal. Nov. 15, 2016) (“The State of California’s Department of Corrections and
12 Rehabilitation and any state prison, correctional agency, sub-division, or department
13 under its jurisdiction, are not ‘persons’ subject to suit under § 1983.” (citing Groten, 251
14 F.3d at 851)). Accordingly, Plaintiff’s claims against the CDCR are dismissed sua sponte
15 for failure to state a plausible claim. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. §
16 1915A(b)(1).
17 D. Leave to Amend
18 Because Plaintiff has already been provided a short and plain statement of his
19 pleading deficiencies, as well as an opportunity to amend those claims to no avail, and
20 given the application of absolute immunity and Eleventh Amendment immunity to each
21 Defendant as outlined above, the Court finds that granting further leave to amend would
22 be futile. See Gonzalez v. Planned Parenthood, 759 F.3d 1112, 1116 (9th Cir. 2014)
23 (“‘Futility of amendment can, by itself, justify the denial of . . . leave to amend.’”)
24 (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v.
25 Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has
26 previously been granted leave to amend and has subsequently failed to add the requisite
27
1 || particularity to its claims, [t]he district court’s discretion to deny leave to amend is
2 || particularly broad.” (internal quotation marks omitted) (second alteration in original)).
3 Conclusion and Orders
4 For the reasons discussed, the Court:
5 1) DISMISSES this civil action without further leave to amend for failure to
6 || state a claim upon which Section 1983 relief can be granted pursuant to 28 U.S.C.
7 ||Section 1915(e)(2)(B)ai) and 28 U.S.C. Section 1915A(b)(1);
8 2) | CERTIFIES that an IFP appeal would not be taken in good faith pursuant
9 || to 28 U.S.C. Section 1915(a)(3), and
10 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and
11 close the file.
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13 Dated: March 30, 2020 ( nif A f ZuwlV
14 Hon. Lafry Alan Burns
15 Chief United States District Judge
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1A

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10080810. Public record. Not legal advice.