United States District Court

For the Northern District of California

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No. C 08-5042 RS (PR)

ORDER

United States District Court

For the Northern District of California

*E-Filed 4/26/10*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

XAVIER GONZALES,

Plaintiff,

v.

SERGEANT BEST, et al., 

Defendants.

 /

No. C 08-5042 RS (PR)

ORDER DISMISSING COMPLAINT

WITH LEAVE TO AMEND;

GRANTING MOTION TO JOIN IN

MOTION TO DISMISS

INTRODUCTION

This is a civil rights action filed by a pro se state prisoner pursuant to 42 U.S.C. 

§ 1983. Defendants Best and Mantel now move to dismiss the action under Federal Rule of

Civil Procedure 12(b)(6) on grounds that plaintiff has failed to state a claim on which relief

can be granted. (See Docket No. 11.) 

DISCUSSION

A. Standard of Review

A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

Case 3:08-cv-05042-RS Document 29 Filed 04/26/10 Page 1 of 5
United States District Court

For the Northern District of California

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No. C 08-5042 RS (PR)

2 ORDER

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss 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.” Twombly, 550 U.S. 544, 553–56 (2007)

(citations omitted). A motion to dismiss should be granted if the complaint does not proffer

“enough facts to state a claim for relief that is plausible on its face.” Id. at 570.

To 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 violation was committed by a person acting under the color

of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 

B. Legal Claims 

Plaintiff alleges that defendants violated his right to Equal Protection by their

allegedly unlawful policy of restricting housing for single-cell inmates to Facility A,

Building 5 at Salinas Valley State Prison. (Compl. ¶ 9.) Specifically, plaintiff alleges that

this housing policy has an adverse effect because it denies him access to jobs on the Support

Services waiting list which requires inmates to be housed in the housing unit they are

employed in. (Id.)

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

essentially a direction that all persons similarly situated should be treated alike.” City of

Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457

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No. C 08-5042 RS (PR)

3 ORDER

U.S. 202, 216 (1982)). Where, as in the instant complaint, state action does not implicate a

fundamental right or a suspect classification, a plaintiff can establish an equal protection

“class of one” claim by demonstrating that he “‘has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in

treatment.’” Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004)

(quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)), overruled

on other grounds, Action Apt. Ass’n v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025

(9th Cir. 2007). 

Plaintiff has failed to state claims on which relief can be granted. Specifically,

plaintiff has not shown that similarly-situated prisoners are treated differently. Rather,

plaintiff makes the conclusory allegation that while being housed in Facility A, Building 5 he

is not afforded the same job opportunities as those afforded to inmates in other facilities

within the prison. Plaintiff fails to give specific facts as to what job opportunities are

available to inmates housed in other specific facilities, specifically how those opportunities

are different than those he is offered, and how the restrictions imposed on inmates in other

facilities differ from those plaintiff is under. Indeed, plaintiff has submitted evidence that

makes it appear that he is on the list for support staff, the very sort of job he wishes to have. 

(Pet., Ex. C.) Plaintiff must correct these deficiencies. 

Accordingly, defendants’ motion to dismiss (Docket No. 11) is GRANTED in part. 

The complaint is DISMISSED with leave to amend. Plaintiff must file an amended

complaint correcting the deficiencies described in this order within 30 days from the date this

order is filed. Failure to file an amended complaint by such time will result in dismissal of

the action without further notice to plaintiff. 

The first amended complaint must include the caption and civil case number used in

this order (08-5042 RS (PR)) and the words FIRST AMENDED COMPLAINT on the first

page. Because an amended complaint completely replaces the previous complaints, plaintiff

must include in his first amended complaint all the claims he wishes to present and all of the

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defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 

Plaintiff may not incorporate material from the prior complaint by reference. Failure to file

an amended complaint in accordance with this order will result in dismissal of this action

without further notice to plaintiff.

It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

informed of any change of address by filing a separate paper with the clerk headed “Notice

of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

for an extension of time to do so. Failure to comply may result in the dismissal of this action

pursuant to Federal Rule of Civil Procedure 41(b). 

MOTION

Defendant Neotti’s motion to join in defendants Mantel’s and Best’s motion to

dismiss (Docket No. 24) is GRANTED. 

Defendants have also moved to dismiss on grounds that they are entitled to qualified

immunity. (Mot. to Dismiss at 1.) Because the Court is dismissing the complaint on other

grounds, it is premature to consider defendants’ qualified immunity defense. Defendants

may renew such a defense at an appropriate time. Accordingly, the motion to dismiss on

grounds of qualified immunity is DENIED without prejudice. 

CONCLUSION

The complaint is DISMISSED with leave to amend. Plaintiff must file an amended

complaint correcting the deficiencies described in this order within 30 days from the date this

order is filed. Failure to file an amended complaint by such time will result in dismissal of

the action without further notice to plaintiff. 

This order terminates Docket Nos. 11 & 24. 

IT IS SO ORDERED.

DATED: April 23, 2010 

 RICHARD SEEBORG

United States District Judge

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United States District Court

For the Northern District of California

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No. C 08-5042 RS (PR)

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THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO:

Xavier Gonzales 

K-52990 

44750 60th Street West 

Lancaster, CA 93536-7620 

DATED: 04/26/2010 

 

 

s/ Chambers Staff 

Chambers of Judge Richard Seeborg

* Counsel are responsible for distributing copies of this document to any co-counsel who

have not registered with the Court’s electronic filing system.

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