ORDER ADOPTING REPORT AND RECOMMENDATION [Doc. No. 38] AND GRANTING DEFENDANTS' MOTION TO DISMISS [Doc. No. 32]

CATHY ANN BENCIVENGO, District Judge.

Plaintiff Mark E. Dorsey, a state prisoner proceeding pro se, filed this civil rights action pursuant to Title 42, United States Code, Section 1983, alleging prison officials at R.J. Donovan Correctional Facility (RJDCF) violated his rights under the United States Constitution. [Doc. No. 3.] On February 27, 2018, Defendants filed a motion to dismiss Counts 2 and 3 of the Complaint for failure to state a claim. [Doc. No. 32.]1 On March 16, 2018, Plaintiff filed an opposition to the motion. [Doc. No. 33.] On July 9, 2018, Magistrate Judge Karen S. Crawford issued a Report and Recommendation ("Report") recommending that the motion to dismiss be granted with leave to amend. [Doc. No. 38.] On July 20, 2018, Plaintiff filed objections to the Report. [Doc. No. 39.] For the reasons set forth below, the Report is ADOPTED and the motion to dismiss is GRANTED with leave to amend.

REVIEW OF REPORT AND RECOMMENDATION

The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). The district court need not review de novo those portions of a report and recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

DISCUSSION

A. Count 2 (Double Celling/Right to Privacy).

As noted by Magistrate Judge Crawford, a prisoner does not have a constitutional right to be housed in a single cell. See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981) (holding that double-celling does not violate Eighth Amendment when it does not involve conditions amounting to unnecessary and wanton pain); Ford v. Ramirez-Palmer, 301 F.3d 1043, 1051 (9th Cir. 2002) ("Double-celling as such is not constitutionally impermissible."). Rather, the Eighth Amendment's proscription of excessive punishment bars conditions of confinement that are incompatible with evolving standards of decency. See Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). The Constitution does not mandate that prison conditions be comfortable, "but neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994). "Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety." Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). "The circumstances, nature, and duration of a deprivation of necessities must be considered in determining whether a constitutional violation has occurred." Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (citing Johnson, 217 F.3d at 731 (alteration omitted)).2

As also noted by Magistrate Judge Crawford, two requirements must be met to establish an Eighth Amendment violation based on jail conditions: (1) the deprivation alleged must objectively have been "sufficiently serious" in that an official's act or omission resulted in the denial of "the minimal civilized measure of life's necessities," and (2) the prison official must have had a "sufficiently culpable state of mind," namely, "deliberate indifference" to the inmate's health or safety. Farmer, 511 U.S. at 834 (citation omitted); see also Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). "Deliberate indifference" is established only when an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847.

Here, Plaintiff fails to allege deprivation of his basic needs or that prison officials ignored an obvious risk to plaintiff's health or safety. In addition, Plaintiff's allegation that he was forced to share a cell with other inmates who had mental health disorders without compatibility screening does not state an Eighth Amendment claim. Allen v. Figueroa, 56 F.3d 70, at *7 (9th Cir. 1995)(unpublished disposition)(no Eighth Amendment or Due Process right to be housed with inmate of one's choice); Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993)(no Due Process right to be housed with compatible inmate); Bjorlin v. Hubbard, No. CIV S-09-1793, 2010 WL 457685, *1 (E.D. Cal. Feb. 4, 2010)(same).

Finally, it appears that Plaintiff may be attempting to state a claim for violation of his right to privacy under the Fourth Amendment when he alleges "the daily violation of his bodily privacy rights." [Doc. No. 3 at 10.] However, as noted by Magistrate Judge Crawford, "`[a] right to privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to insure institutional security and internal order.'" [Doc. No. 38 at 8, citing Hudson v. Palmer, 468 U.S. 517, 526 (1984).] While "incarcerated prisoners retain a limited right to bodily privacy," Michenfelder v. Sumner, 860 F.2d 328, 338 (9th Cir. 1988), a prisoner plaintiff "bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains." Bruce v. Y1st, 351 F.3d 1283, 1289 (9th Cir. 2003). Here, plaintiff has not alleged any facts to indicate that any loss of bodily privacy that results from double celling is unreasonable or unjustified under the circumstances.

Accordingly, the Report is ADOPTED as to Count 2 and the motion to dismiss Count 2 is GRANTED with leave to amend.

B. Count 3 (Equal Protection).

As noted by Magistrate Judge Crawford, to state an equal protection claim, plaintiff must either allege that defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class," Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), or that he has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment," Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff has done neither. Rather he alleges that the policies and procedures in Exhibit G (housing policy memorandum) allow prison officials to "pick and choose" which prisoners are entitled to be housed in "single cells." [Doc. No. 3 at 12.] However, on its face, the policy memorandum is not discriminatory, as it sets forth a long list of legitimate factors to be considered to determine whether single cell status is appropriate for a particular inmate. [Doc. No. 3 at 56-58.] Therefore, Plaintiff fails to state an equal protection claim. Accordingly, the Report is ADOPTED and the motion to dismiss Count 3 is GRANTED with leave to amend.

CONCLUSION

For the reasons set forth above, the Court HEREBY ORDERS: