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United States District Court

Eastern District of California 

LeShane J. Holmes,

Plaintiff, No. Civ. S 04-1308 DFL PAN P

vs. Findings and Recommendations

Steve Teer,

Defendant.

-oOoPlaintiff proceeds in forma pauperis and without counsel in

this civil rights action. See 42 U.S.C. § 1983. Defendant Teer

moves to dismiss upon the ground plaintiff fails to state a claim

upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6).

On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),

the court must accept plaintiff’s allegations as true, read the

complaint most favorably to plaintiff, give plaintiff the benefit

of every reasonable inference that appears from the pleading and 

argument of the case and dismiss the complaint only if it is 

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clear that no relief could be granted under any set of facts that

could be proved consistent with the allegations. Wheeldin v.

Wheeler, 373 U.S. 647, 658 (1963); Retail Clerks International

Association, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746,

754 n.6 (1963); Hishon v. King & Spalding, 467 U.S. 69, 73

(1984). The court may consider documents attached to the

complaint in evaluating a motion to dismiss. Parks School of

Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

Plaintiff’s complaint alleges that while supervising

plaintiff defendant Teer discriminated against plaintiff because

of plaintiff’s race by belittling plaintiff, assigning to

plaintiff menial tasks while assigning more difficult tasks to

others less qualified than he, refusing to verify the hours

plaintiff worked so plaintiff would be replaced by a white

prisoner, replacing plaintiff with a white prisoner, and

excluding plaintiff from a list of “critical workers” released

from lock-down to perform essential prison tasks. These

allegations state a claim for the denial of equal protection

under the law. See City of Cleburne, Tex. v . Cleburne Living

Center, 473 U.S. 432 (1985; Barren v. Harrington, 152 F.3d 1193,

1194 (1998).

Plaintiff’s complaint also alleges defendant Teer fired

plaintiff in retaliation for plaintiff filing an appeal about

Teer’s conduct. This allegation states a claim for retaliation. 

See Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005).

////

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For these reasons, I find plaintiff states a claim upon 

which relief may be granted. Defendant’s December 20, 2004,

motion should be denied and defendant should be directed to file

and serve an answer within 30 days.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: August 17, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

\holm1308.f&r mtd fsc

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