1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MUSTAFFA A. MANSOUR, Case No.: 3:19-cv-01325-AJB-LL Booking No. #16137475, 12

ORDER DISMISSING AMENDED

Plaintiff, 13 COMPLAINT FOR FAILING TO vs. STATE A CLAIM PURSUANT TO 14 28 U.S.C. § 1915(e)(2)(B) AND

15 28 U.S.C. § 1915A(b)(1) CDCR, et al., 16 Defendants. [ECF No. 21] 17 18 19 20 Mustaffa A. Mansour (“Plaintiff”), a state prisoner currently serving his sentence in 21 local custody pursuant to California’s Proposition 57, while incarcerated at the San Diego 22 County Sheriff Department’s East Mesa Detention Facility (“EMDF”) in San Diego, 23 California, initiated this civil rights action pursuant to 42 U.S.C. § 1983 in the Eastern 24 District of California on May 24, 2019. (See “Compl.,” ECF No. 1 at 1.) 25 I. Procedural Background 26 On July 17, 2019, the Honorable Edmund F. Brennan transferred the case to the 27 Southern District of California in the interests of justice pursuant to 28 U.S.C. § 1404(a). 28 (See ECF No. 8.) Judge Brennan did not rule on Plaintiff’s pending Motion to Proceed In 1 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 5), or conduct the 2 mandatory initial screening of Plaintiff’s Complaint as required by 28 U.S.C. § 1915(e)(2) 3 and/or § 1915A before the transfer. 4 Therefore, on September 18, 2019, this Court granted Plaintiff leave to proceed IFP, 5 screened his Complaint, and dismissed it sua sponte for failing to state a claim pursuant to 6 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). (See ECF No. 15.) The Court granted Plaintiff 7 45 days leave in which to file an amended complaint that addressed all the deficiencies of 8 pleading it identified. (Id. at 6-11); see also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th 9 Cir. 2000) (en banc) (“[A] district court should grant leave to amend even if no request to 10 amend the pleading was made, unless it determines that the pleading could not possibly be 11 cured.”) (citations omitted)). 12 On November 5, 2019, just as his amended complaint was due, Plaintiff filed a letter 13 addressed to the Court, repeating some of the same allegations included in his original 14 pleading, and requesting an extension of time in which to amend. (See ECF No. 17 at 1-3.) 15 On November 12, 2019, the Court granted Plaintiff’s request, reminding him of the need 16 to cure his previous pleading’s deficiencies, and directing him to “simply allege the facts 17 that entitle him to relief” and identify a legal cause of action that might plausibly entitle 18 him to relief. (Id. at 3.) 19 In response, Plaintiff filed another letter addressed to the Court, see ECF No. 20, 20 followed by another adding “a little more about my complaint.” (See ECF No. 21). The 21 Court will now liberally construe these two documents together as Plaintiff’s Amended 22 Complaint. See Entler v. Gregoire, 872 F.3d 1031, 1038 (9th Cir. 2017) (“A pro se 23 complaint must be liberally construed, since a pro se complaint, however inartfully 24 pleaded, must be held to less stringent standards than formal pleadings drafted by 25 lawyers.”) (internal quotation marks and citation omitted). 26 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 27 As Plaintiff knows, the Court is obligated by the Prison Litigation Reform Act 28 (“PLRA”) to review complaints filed by all persons proceeding IFP and by those, like 1 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, 2 or adjudicated delinquent for, violations of criminal law or the terms or conditions of 3 parole, probation, pretrial release, or diversionary program,” at the time of filing “as soon 4 as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under the 5 PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are 6 frivolous, malicious, fail to state a claim, or which seek damages from defendants who are 7 immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez, 203 F.3d at 1126-27 (citing 8 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 9 U.S.C. § 1915A(b)). 10 A. Standard of Review 11 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits 12 need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th 13 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 14 2012)). “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 17 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 18 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”). 21 Every complaint must contain “a short and plain statement of the claim showing that 22 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 23 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 24 conclusory statements, do not suffice.” Iqbal v. Ashcroft, 556 U.S. 662, 678 (2009) (citing 25 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded 26 factual allegations, a court should assume their veracity, and then determine whether they 27 plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a complaint 28 states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing 1 court to draw on its judicial experience and common sense.” Id. The “mere possibility of 2 misconduct” falls short of meeting this plausibility standard. Id.; see also Moss v. U.S. 3 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 4 While a plaintiff’s factual allegations are taken as true, courts “are not required to 5 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 6 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 7 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 8 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 9 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 10 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 11 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 12 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in 13 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id. 14 B. Allegations in Plaintiff’s Letters / Amended Complaint 15 Plaintiff continues to claim, as he did in his original Complaint, that he is serving a 16 state local prison term for a “non-violent offense under AB 109 PC 1170(h)” and that San 17 Diego County Sheriff William D. Gore, “State of California law makers,” the former 18 Governor, and CDCR are denying him equal protection because the county jails are 19 overcrowded, and do not offer the same rehabilitative programs, contact visits, or “33%” 20 custody credits available to prisoners who were not sentenced under “Prop. 57.”1 (See ECF 21 No. 20 at 1-5; ECF No. 21 at 1-3.) 22 23 1 Proposition 57, otherwise known as the Criminal Justice Realignment Act of 2011, 24 “significantly change[d] the punishment for some felony convictions” in California. People 25 v. Scott, 58 Cal. 4th 1415, 1418 (2014); see also Mainez v. Gore, 2017 WL 6453595, at *1 (S.D. Cal. Dec. 18, 2017). As relevant here, the Act shifted responsibility for housing and 26 supervising certain felons from the state to the individual counties. See Cal. Penal Code 27 § 1170(h). Thus, “once probation has been denied, [California] felons who are eligible to be sentenced under realignment … serve their terms of imprisonment in local custody 28 1 C. 42 U.S.C. § 1983 2 Title 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights, 3 privileges, or immunities secured by the Constitution and laws” of the United States. Wyatt 4 v. Cole, 504 U.S. 158, 161 (1992). To state a claim under § 1983, a plaintiff must allege 5 two essential elements: (1) that a right secured by the Constitution or laws of the United 6 States was violated, and (2) that the alleged violation was committed by a person acting 7 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Long v. Cty. of Los Angeles, 8 442 F.3d 1178, 1185 (9th Cir. 2006). 9 D. Equal Protection 10 Plaintiff’s amended pleadings continue to suffer from the same deficiencies as his 11 original Complaint. Specifically, his suit still appears to challenge the application of 12 Proposition 57 to the circumstances of his confinement and his commitment to local 13 custody as a non-violent offender, and he continues to object to the denial of the “33%” 14 custody credits and to the lack of “early release” opportunities available to “offenders in 15 CDCR” as a violation of equal protection. (See Compl. at 3, 6.)2 16 17 2 After Proposition 57 was passed in November 2016, “the CDCR issued new regulations 18 that governed the ability of inmates to earn custody credits to advance their parole dates.” 19 Rodriguez v. Kernan, 2019 WL 3425335, at *2 (E.D. Cal. July 30, 2019) (citing People v. Contreras, 4 Cal.5th 349, 374 (2018), as modified (Apr. 11, 2018)). Newly implemented 20 section 3043.2, entitled Rehabilitative Achievement Credit, provides that “‘[o]ne day of 21 credit for every two days of incarceration (33.3%) shall be awarded to an inmate sentenced under the Three Strikes Law, under subdivision (c) of section 1170.12 of the Penal Code, 22 or under subdivision (c) or (e) of section 667 of the Penal Code, who is not serving a term 23 for a violent felony as defined in subdivision (c) of section 667.5 of the Penal Code.’” Mustafaa v. Davis, No. 19-CV-04105-EMC, 2019 WL 6771794, at *1 (N.D. Cal. Dec. 12, 24 2019) (quoting 15 Cal. Code Regs. § 3043.2(b)(3)) (emphasis original). The award of such 25 good conduct time credits “shall advance an inmate’s release date if sentenced to a determinate term or advance an inmate’s initial parole hearing date pursuant to subdivision 26 (a)(2) of section 3041 of the Penal Code if sentenced to an indeterminate term with the 27 possibility of parole.” 15 Cal. Code Regs. § 3043.2(b). Thus, while Plaintiff does not specify whether his prison sentence is determinate or indeterminate, and does not expressly 28 1 The Fourteenth Amendment’s Equal Protection Clause requires only that persons 2 who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, 3 Inc., 473 U.S. 432, 439 (1985); Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 4 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); 5 Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). 6 As the Court noted in its previous screening Order, the Constitution does not require 7 individuals who are, in fact, differently situated, to be treated equally under the law. 8 Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469 (1981) (citations 9 omitted); Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994) 10 (“Dissimilar treatment of dissimilarly situated persons does not violate equal protection). 11 Thus, absent threshold allegations that Plaintiff is similarly situated to others who allegedly 12 receive what he perceives as more favorable treatment, he fails to state a plausible equal 13 protection claim. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause 14 of action, supported by mere conclusory statements, do not suffice.”); Michael M., 450 15 U.S. at 469 (citations omitted). “The Equal Protection Clause does not forbid 16 classifications. It simply keeps governmental decisionmakers from treating differently 17 persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); 18 Hernandez v. Cate, 918 F. Supp. 2d 987, 1005-06 (C.D. Cal. 2013). 19

20 21 Fourteenth Amendment entitles him to the same § 3043.2 custody credit earning opportunities as a “CDCR offender.” (See ECF No. 21 at 3.) Most courts have concluded 22 that this type of claim, while it could potentially affect the timing of a parole release 23 consideration hearing, still falls outside of the “core of habeas corpus” and must be pursued (if at all) in a civil rights action under 42 U.S.C. § 1983 rather than in a habeas action. See 24 Nettles v. Grounds, 830 F.3d 922, 927-28 (9th Cir. 2016), cert. denied, 137 S. Ct. 645 25 (2017); Blanco v. Asuncion, No. 18CV2005-JLS(KSC), 2019 WL 2144452, at *3 (S.D. Cal. May 16, 2019), report and recommendation adopted sub nom. Blanco v. Diaz, No. 26 18-CV-2005 JLS (KSC), 2019 WL 3562215 (S.D. Cal. Aug. 6, 2019), reconsideration 27 denied, No. 18-CV-2005 JLS (KSC), 2020 WL 619241 (S.D. Cal. Feb. 10, 2020); Bisel v. Kernan, No. 1:18-CV-00090-DAD-JLT PC, 2019 WL 1508062, at *3 (E.D. Cal. Apr. 5, 28 1 Thus, to state an Equal Protection claim, the Court advised Plaintiff that he must 2 allege that Defendants intentionally discriminated against him based on his membership in 3 a protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. 4 Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). But Plaintiff still fails to make any such 5 allegation, and “neither prisoners nor ‘persons convicted of crimes’ constitute a suspect 6 class for equal protection purposes.” United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 7 2011); Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999) (“[P]risoners are not a 8 suspect class....”); United States v. Smith, 818 F.2d 687, 691 (9th Cir. 1987) (“[P]ersons 9 convicted of crimes are not a suspect class.”). 10 The Court further advised Plaintiff that if no suspect class or fundamental right is 11 implicated, equal protection claims like his are subject to a rational basis review. See 12 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); United States v. Juvenile Male, 13 670 F.3d 999, 1009 (9th Cir. 2012); Nelson v. City of Irvine, 143 F.3d 1196, 1205 (9th Cir. 14 1998) (“Unless a classification trammels fundamental personal rights or implicates a 15 suspect classification, to meet constitutional challenge the law in question needs only some 16 rational relation to a legitimate state interest.”). In the prison context, the right to equal 17 protection is viewed through a standard of reasonableness; that is, whether the actions of 18 prison officials are “reasonably related to legitimate penological interests.” Walker v. 19 Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). 20 In his amended pleadings, Plaintiff continues to claim he is being denied “equal 21 treatment” because he is not provided the same opportunities to participate in substance 22 abuse, behavior modification, and rehabilitative job training programs as “CDCR inmates,” 23 and unlike them, is ineligible for contact visitation privileges. See ECF No. 20 at 3-4, ECF 24 No. 21 at 2-3. But these purported differences nevertheless fail to state an equal protection 25 claim because Plaintiff still does not explain how he is similarly situated to CDCR inmates 26 and does not allege there is no rational basis for treating prisoners who have been sentenced 27 pursuant to Proposition 57 differently. “The Constitution permits qualitative differences in 28 meting out punishments and there is no requirement that two persons convicted of the same 1 offense receive identical sentences.” Williams v. Illinois, 399 U.S. 235, 243 (1970). 2 “Inmates are not entitled to identical treatment as other inmates merely because they are 3 all inmates.” McQuery v. Blodgett, 924 F.2d 829, 834–35 (9th Cir. 1991) (citing Norvell v. 4 Illinois, 373 U.S. 420 (1963)). 5 Therefore, mere allegations of inequality are insufficient to establish a violation of 6 the equal protection clause. Id.; see also McGinnis v. Royster, 410 U.S. 263, 269-70 (1973) 7 (applying rational basis review to state statutory scheme that treated inmates held in county 8 facilities differently than those held in state facilities); see also Sigur v. California Dep’t 9 of Corr. & Rehab., 2018 WL 2734918, at *4 (E.D. Cal. June 7, 2018) (dismissing claims 10 that defendants treated non-violent sex offenders differently under Proposition 57 pursuant 11 to 28 U.S.C. § 1915A on equal protection grounds); Mason v. Holt, 2016 WL 6136076, at 12 *7 (E.D. Cal. Oct. 21, 2016) (dismissing finding Proposition 57 prisoner’s equal protection 13 challenge with regard to eligibility for work credits because the distinctions made between 14 county and prison custody credits as a result of realignment are “not arbitrary and bear a 15 rational relationship to a legitimate government interest.”); People v. Lara, 54 Cal. 4th 896, 16 906 (2012) (“[P]risoners who serve their pretrial detention before … [Proposition 57’s] 17 effective date, and those who serve their detention thereafter, are not similarly situated.”); 18 Cruz, 207 Cal. App. 4th at 680 (holding that “[t]he distinction drawn by section 1170, 19 subdivision (h)(6), between felony offenders sentenced before, and those sentenced on or 20 after, October 1, 2011, does not violate equal protection.”). 21 For these reasons, and based on this precedent, the Court finds Plaintiff’s amended 22 pleadings continue to fail to state a claim upon which § 1983 relief can be granted and must 23 be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Lopez, 24 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004; see also Stephens v. Kunz, No. CV 19- 25 1008-AB (KS), 2019 WL 6649021, at *4 (C.D. Cal. Sept. 18, 2019), report and 26 recommendation adopted, No. CV 19-1008-AB (KS), 2019 WL 6700938 (C.D. Cal. Dec. 27 6, 2019) (dismissing prisoner’s Proposition 57 equal protection claims pursuant to Fed. R. 28 Civ. P. 12(b)(6) without leave to amend because he “presented no factual allegations 1 indicating that Defendant treated similarly situated inmates differently from [him], much 2 || less any factual allegations to support a plausible inference that any difference in treatment 3 no rational basis.’’). 4 E. Leave to Amend 5 Plaintiff has already been provided a short and plain statement of his pleading 6 || deficiencies, and while given both the opportunity and an extension of time in order to 7 || address them in an amended pleading, has nevertheless failed to do so. Therefore, the Court 8 concludes further attempts to amend would be futile. See Gonzalez v. Planned Parenthood, 9 || 759, F.3d 1112, 1116 (th Cir. 2014) (‘Futility of amendment can, by itself, justify the 10 denial of ... leave to amend.’”) (quoting Bonin y. Calderon, 59 F.3d 815, 845 (9th Cir. 11 || 1995)); Zucco Partners, LLC vy. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) 12 ||(‘[W]here the plaintiff has previously been granted leave to amend and has subsequently 13 || failed to add the requisite particularity to its claims, [t]he district court’s discretion to deny 14 || leave to amend is particularly broad.” (internal quotation marks omitted) (second alteration 15 original)). 16 Conclusion and Order 17 Accordingly, the Court DISMISSES this civil action sua sponte without further 18 || leave to amend for failure to state a claim upon which § 1983 relief can be pursuant to 28 19 U.S.C. § 1915(e)(2)(B) and § 1915A(b), CERTIFIES that an IFP appeal would not be 20 || taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court 21 enter a final judgment of dismissal and to close the file. 22 IT IS SO ORDERED. 23 24 ||Dated: March 21, 2020 © □ 25 Hon. Anthony J.Battaglia 26 United States District Judge 27 28 9