(PC) Solomon v. Torres ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAXINE M. SOLOMON, No. 1:18-cv-00615-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 S. TORRES, Guard at Central California ACTION FOR FAILURE TO STATE A Women’s Facility, CLAIM 15 Defendant. (Doc. Nos. 12, 15) 16 17 18 Plaintiff Maxine M. Solomon is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 27, 2019, the assigned magistrate judge issued findings and 22 recommendations, recommending that this action be dismissed due to plaintiff’s failure to state a 23 cognizable § 1983 claim. (Doc. No. 15.) The findings and recommendations were served on 24 both parties and contained notice that any objections thereto were to be filed within fourteen (14) 25 days of service. (Id. at 4.) Following the granting of an extension of time, plaintiff timely filed 26 objections on January 7, 2020. (Doc. No. 18.) 27 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 28 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 1 objections, the court concludes that the findings and recommendations are supported by the 2 record and proper analysis. 3 Plaintiff’s objections appear to reiterate the allegations of her complaint that defendant 4 violated her Fourteenth Amendment rights by “filing [a] false report against her . . . based solely 5 on her sexual orientation as a lesbian female.” (Doc. No. 18 at 2.) These objections do not 6 address the analysis set forth in the pending findings and recommendations. 7 To survive dismissal, a claim “must contain sufficient factual matter, accepted as true, to 8 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 9 (citation omitted); see also Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th 10 Cir. 1998) (noting that Section “1983 claims based on Equal Protection violations must plead 11 intentional unlawful discrimination or allege facts that are at least susceptible of an inference of 12 discriminatory intent.”). 13 Although plaintiff asserts that defendant “had no reason for filing the false report” and 14 that he must have done so because of his “reputation for his strong dislike towards transgenders 15 and homosexuals” (Doc. No. 12 at 3–4), she has not alleged any facts to support her conclusory 16 allegation that the defendant acted with “with an intent or purpose to discriminate against the 17 plaintiff based upon membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 18 1194–95 (9th Cir. 1998); see also Low v. Bartolotti, No. CV 18-00283 JMS-KJM, 2018 WL 19 4354294, at *3 (D. Haw. Sept. 12, 2018) (citing United States v. Windsor, 570 U.S. 744, 774 20 (2013) (“Discrimination on the basis of sexual orientation violates the Equal Protection Clause.”). 21 To put it another way, plaintiff must allege facts that, if true, would allow the court to infer that 22 defendant is homophobic and that he acted with such intent. Cf. Lateef v. City of Madera, No. 23 1:16-cv-01488-DAD-SKO, 2017 WL 1079789, at *4 (E.D. Cal. Mar. 21, 2017) (noting that the 24 court could infer animus towards Pakistani Muslims when it was alleged that the defendant had 25 stated that “your kind of people” would face difficulties in opening business in the area). An 26 unsupported and conclusory allegation that defendant has a reputation for homophobia, however, 27 is insufficient and fails adequately allege such a claim. 28 ///// 1 Accordingly, 2 1. The findings and recommendations (Doc. No. 15) issued on November 27, 2019 3 are adopted; 4 2. This action is dismissed due to plaintiff's failure to state a claim upon which relief 5 may be granted; and 6 3. The Clerk of the Court is directed to close this case. 7 | ITIS SO ORDERED. a 8 /}/ fP A; Dated: _ February 24, 2020 Sea 1" S098 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28