Opinion
No. 2:14-cv-02589 AC P
09-30-2016
JAM'BRI SEAN JOHNSON, SR., Plaintiff, v. ERIC ARNOLDS, Defendant.
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 9.
I. Request to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). ECF No. 14. Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
II. Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A claim "is [legally] frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). "[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless." Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. Id.
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. (citations omitted). "[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (alteration in original) //// (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
"[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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 570). "A claim has facial 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. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
III. Allegations of the Complaint
Plaintiff initiated this action by filing a petition for writ of habeas corpus, ECF No. 1, which was dismissed without prejudice to the filing of a civil rights action, see ECF No. 10. Plaintiff thereafter filed a civil rights complaint, ECF No. 11, followed by an amended complaint, ECF No. 16. Because the amended complaint supersedes the previous complaint, see Loux v. Rhay, 375 F.2d. 55, 57 (9th Cir. 1967), the court proceeds to screen the amended complaint, ECF No. 16.
Plaintiff is currently incarcerated at California State Prison-Solano ("CSP-SOL"), where defendant Eric Arnold is the warden. See ECF No. 16 at 1. Plaintiff seeks an injunction compelling defendant and/or CSP-SOL to allow plaintiff to have contact visits with his five biological sons, who are minors. See id.
Plaintiff does not seek damages.
Plaintiff alleges that he is currently serving a sentence of 72 years to life, plus 35 years, for the sexual assault of a minor girl in 2004. Based on the minor status of the victim, prison officials invoked Title 15, § 3173.1(b), of the California Code of Regulations to restrict plaintiff's visits with minors. § 3173.1(b) restricts inmates who have been incarcerated for committing certain sexual offenses from participating in visits with minor children. Specifically, "when the victim is a minor, visitation with any minor who is not the victim of the crime shall be limited to //// non-contact status except as authorized by the Institution Classification Committee." CCR tit. 15 § 3173.1(b).
Plaintiff alleges that the Institutional Classification Committee ("ICC") arbitrarily and unreasonably denied plaintiff contact visitation with his own sons. See id. at 4. Specifically, plaintiff alleges that in evaluating whether plaintiff should be permitted contact visits with minors, the ICC should have focused on the security of the institution and whether plaintiff would be a threat to his specific minor visitors, i.e. his five male sons. Plaintiff alleges that the ICC committee members were repulsed by his commitment offenses, and denied him contact visits with his sons as a form of additional punishment. Id. at 4-6, 14. According to plaintiff, the ICC did not actually consider whether he posed a threat to his own children, and instead claimed that plaintiff was "a liability" because he "[had not] been incarcerated long enough." Id. at 4. Plaintiff contends that because there is no evidence plaintiff is a pedophile, attracted to males, or accused or guilty of incest, there was no basis for the ICC to conclude that plaintiff posed a danger to his male children. See id. at 4. According to plaintiff, he has never displayed inappropriate behavior towards his sons, and there is no reason to believe that any form of sexual misconduct would occur during contact visits with his children. Id. at 5. Plaintiff alleges that the ICC's decision to deny plaintiff contact visits with minors did not further the policy of preventing sexual predators from gaining access to minor victims, and is instead contributing to the dysfunction of plaintiff's family and preventing plaintiff's efforts at rehabilitation. See id. at 4-5. Plaintiff contends that the ICC is acting in an unreasonable and arbitrary manner, "restricting visits with minor[s] over broadly," and is "not adequately critiquing the conduct involved in the conviction." Id. at 4-5.
Plaintiff alleges that the visiting restrictions set forth in § 3173.1(b), the resulting denial of contact visits with his sons, violates plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment, as well as plaintiff's Due Process and Equal Protection rights under the Fourteenth Amendment. Id. at 1. //// ////
IV. Failure to State a Claim
A. ICC Committee Members
Plaintiff's complaint includes numerous references to alleged wrongdoing by members of the ICC committee that elected to deny plaintiff contact visits with minors, yet plaintiff does not name any ICC committee members as defendants. Plaintiff is advised that the Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
It is not clear whether plaintiff intends to bring claims against any specific ICC committee members, or if plaintiff's allegations regarding the actions of the ICC committee were included to provide context for plaintiff's other claims. If plaintiff chooses to file an amended complaint, he should clarify whether he is attempting to state claims against any members of the ICC. If he is attempting to state claims against any ICC committee members, he should clearly explain what each committee member did that violated plaintiff's constitutional rights.
B. Eighth Amendment
"The Eighth Amendment proscribes the infliction of cruel and unusual punishment on prisoners. Whether a particular event or condition in fact constitutes 'cruel and unusual punishment' is gauged against 'the evolving standards of decency that mark the progress of a maturing society.'" Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). "After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986) (alteration in original) (internal quotation marks omitted) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)).
The Ninth Circuit has held that for purposes of the Eighth Amendment, "[d]enial of contact visitation simply does not amount to the infliction of pain." Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986) (citing Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982). Moreover, "[e]ven if denial of contact visitation amounted to an infliction of pain, the Eighth Amendment would not prohibit the denial unless the pain were inflicted wantonly and without penological justification." Id. at 1114 (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). "To the extent that denial of contact visitation is restrictive and even harsh, it is part of the penalty that criminals pay for their offenses against society." Id.
Here, plaintiff asserts that the denial of contact visits with his sons constitutes cruel and unusual punishment, deprives plaintiff of needed human contact, and deprives plaintiff of the rehabilitative benefits of contact visitation. However, this same argument was considered and rejected by the Ninth Circuit in Toussaint. See Toussaint, 801 F.2d at 113 (concluding, despite plaintiffs' contentions that contact visitation has beneficial rehabilitative effects, is vital to inmate health, and affects both physical and mental health, that denial of contact visitation does not amount to the infliction of pain for purposes of the Eighth Amendment). As plaintiff cites no authority for the proposition that denial of contact visits constitutes cruel and unusual punishment, and binding precedent in this circuit holds to the contrary, plaintiff's Eighth Amendment claim must be dismissed.
C. Due Process
The Due Process Clause protects against the deprivation of liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221(2005). In order to invoke the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. See id. Liberty interests may arise from the Due Process Clause itself or from state law. Id.
With respect to visitation, the Ninth Circuit has held that prisoners have no constitutional right of access to a particular visitor. Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996). Moreover, "it is well-settled that prisoners have no constitutional right while incarcerated to contact visits." Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (citing Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)); see Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (holding that prisoners have no constitutional right to contact visitation); Shallowhorn v. Molina, Case No. 1:07-CV-01667-AWI, 2011 WL 846094, at *4-5 (E.D. Cal. Mar. 8, 2011), subsequently aff'd, 572 F. App'x 545 (9th Cir. 2014) (plaintiff's allegations that he was allowed only non-contact visitation with his children failed to state a due process claim for loss of visitation ). Accordingly, to the extent plaintiff alleges that the denial of contact visits with his sons constitutes a violation of his due process rights, plaintiff's allegations fail to state a claim for relief and will be dismissed. See Valdez v. Woodford, 308 F. App'x 181, 182-83 (9th Cir. 2009) ("The district court properly dismissed Valdez's due process claim pursuant to 28 U.S.C. § 1915A because neither federal nor state law has created a protected interest in visitation.").
See Ninth Circuit Rule 36-3 (unpublished Ninth Circuit decisions may be cited not for precedent but to indicate how the Court of Appeals may apply existing precedent).
D. Equal Protection
The Equal Protection Clause requires the State to treat all similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "To state a claim for violation of the Equal Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose to discriminate against him based upon his membership in a protected class." Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Alternatively, a plaintiff may state an Equal Protection claim by showing that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose. Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). If a cognizable class is treated differently, the court must determine under the appropriate level of scrutiny whether the distinction made between the groups is justified. See United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995).
Here, sex offenders are not a suspect class, United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001), and prisoners do not have a fundamental right to contact visits, see Barnett, 31 F.3d at 817. Accordingly, the restrictions on contact visitation with minors for prisoners convicted of committing certain sex offenses set forth in § 3173.1(b) are valid as long as they are reasonably related to a legitimate state purpose.
Plaintiff initially appears to allege that the stated purpose behind the restrictions set forth in § 3173.1(b) is to protect minor visitors from sex offenders. See ECF No. 16 at 10. The provision in § 3173.1(b) that inmates convicted of sexual offenses against minors may not have contact visits with minors without permission from the ICC clearly bears a rational relationship to this purpose. To the extent plaintiff goes on to assert that "sex offender" is an arbitrary category and does not provide a legitimate basis for differential treatment, see ECF No. 16 at 9-14, the court disagrees. With respect to contact visitation with minors, the rationale behind treating sex offenders convicted of assaulting minors differently from the rest of the inmate population is obvious and warrants no further discussion here. The fact that plaintiff is a sex offender who believes he is not a threat to his own minor children does not change this result.
Because plaintiff has failed to sufficiently allege that the differential treatment of sex offenders who committed offenses against minors bears no rational relationship to a legitimate state purpose, the undersigned finds that plaintiff has failed to state an Equal Protection claim. Plaintiff's claim will be dismissed, but, in an abundance of caution, plaintiff will be granted leave to amend.
V. Leave to Amend
If plaintiff chooses to file a second amended complaint, he must demonstrate how the conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named defendant is involved. Arnold v. Int'l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, "[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient." Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).
Plaintiff is also informed that the court cannot refer to a prior pleading in order to make his first amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 929 (9th Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent amended complaint to preserve appeal). Once plaintiff files a second amended complaint, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
VI. Conclusion
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 14) is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.
3. Plaintiff's complaint is dismissed with leave to amend.
4. Within thirty days from the date of service of this order, plaintiff may file an amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint." Plaintiff must file an original and two copies of the amended complaint. Failure to file an amended complaint in accordance with this order will result in dismissal of this action.
5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form used in this district. DATED: September 30, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE