Opinion
1:05-cv-01340-AWI-LJO-P.
August 28, 2006
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 26) ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS (Doc. 22)
Plaintiff Garrison S. Johnson ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On July 14, 2006, the Magistrate Judge filed a Findings and Recommendations herein which was served on plaintiff and which contained notice to plaintiff that any objection to the Findings and Recommendations was to be filed within twenty days. On July 26, 2006, plaintiff filed an objection to the Magistrate Judge's Findings and Recommendations.
By order filed May 22, 2006, plaintiff was given the option to either file a second amended complaint or notify the Magistrate Judge of his voluntary willingness to proceed only on the claims found to be cognizable by the Magistrate Judge in his order. On June 1, 2006, plaintiff notified the Magistrate Judge that he did not wish to amend and wished to proceed only on the claims found to be cognizable. As a result of plaintiff's notice, on July 14, 2006, the Magistrate Judge issued an order finding service of plaintiff's amended complaint appropriate and directing plaintiff to complete and return USM-285 forms and summonses for service of process, and a Findings and Recommendations recommending dismissal of certain claims and defendants. Despite having opted not to file a second amended complaint and agreeing to proceed only on his cognizable claims, plaintiff now objects to the dismissal of his equal protection claim.
In his objection, plaintiff argues that he may bring an equal protection claim against prison officials based on their discriminatory hiring policy. Plaintiff contends that the hiring policy limits employment opportunities for African American guards and results in the overwhelming employment of Hispanic and Caucasian guards, thereby subjecting plaintiff to discrimination. The Magistrate Judge explained to plaintiff that he may bring an equal protection claim based on intentional discrimination against plaintiff but that he has no standing to challenge the hiring policy. Because plaintiff fails to allege any facts supporting a claim that he was intentionally discriminated against by staff on the basis of his race, plaintiff fails to state a claim. The facts alleged in plaintiff's amended complaint relating to the hiring policy do not support a claim that plaintiff was discriminated against and plaintiff sets forth no additional facts in his objection supporting such a claim. Plaintiff's citation toJohnson v. California, 543 U.S. 499, 125 S.Ct. 1141 (2005), a case in which plaintiff was the petitioner, is inapposite as it involved a racial segregation policy applied to and directly affecting inmates. Plaintiff's objection to the dismissal of his equal protection claims is without merit and this claim shall be dismissed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed July 14, 2006, is ADOPTED IN FULL;
2. This action shall proceed on plaintiff's amended complaint, filed January 31, 2006, against defendants Hart, Bonilla, Smith, Davis, Kellog, Scribner, Andrews, Schwarzenegger, Hickman, and Woodford for excessive force, and against defendant Amaya for deliberate indifference to plaintiff's medical needs, in violation of the Eighth Amendment;
3. Plaintiff's section 1983 retaliation and equal protection claims are DISMISSED, with prejudice, for failure to state a claim upon which relief may be granted;
4. Plaintiff's section 1985(3) claim is DISMISSED, with prejudice, for failure to state a claim upon which relief may be granted; and,
5. Defendants Kavanaugh and Moran are DISMISSED from this action based on plaintiff's failure to state any claims upon which relief may be granted against them.
IT IS SO ORDERED.