James White v. Pazin et al

Filing 13

ORDER DISMISSING Action With Prejudice for Failure to State a Claim 12 , signed by Magistrate Judge Barbara A. McAuliffe on 12/5/13: This terminates the action in its entirety. (CASE CLOSED)(Hellings, J)

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EASTERN DISTRICT OF CALIFORNIA

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JAMES E. WHITE,

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Plaintiff,

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v.
MARK N. PAZIN, et al.,

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Defendants.

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I.

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1:12-cv-00917-BAM (PC)
ORDER DISMISSING ACTION WITH
PREJUDICE FOR FAILURE TO STATE A
CLAIM
(ECF No. 12)

Screening Requirement and Standard
Plaintiff James E. White (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis. Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 6, 2012. On

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October 7, 2013, the Court dismissed Plaintiff’s complaint for failure to state a claim and granted

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Plaintiff leave to amend. Plaintiff’s first amended complaint, filed on December 2, 2013, is

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currently before the Court for screening.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at

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1949 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Complaint

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A. Summary of Allegations in First Amended Complaint

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Plaintiff is currently housed at Corcoran State Prison. The events alleged in Plaintiff’s

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complaint occurred while he was a pre-trial detainee housed in the Merced County Jail from

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March 12, 2007 until September 1, 2011. Plaintiff names the following Defendants: (1) Mark N.

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Pazin, Sheriff; (2) Merced County Sheriff’s Administration; (3) Under Sheriff Blake; (4) Under

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Sheriff Tom Cavallero; (5) Commander Joe Scott, Merced County Jail; (6) Commander

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Thoreson, Merced County Jail; and (7) Sergeant Blodgett, Merced County Sheriff’s Department.

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Plaintiff alleges as follows: On March 12, 2007, Plaintiff was arrested and detained in

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the Merced County Jail. Approximately five months later, Plaintiff learned that he would not be

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able to visit with his minor children under the age of 12 years.

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On May 20, 2008, Sergeant Moore, a non-party, allegedly violated Plaintiff’s due process
rights by removing his visiting rights without a rules violation hearing. On May 20, 2008,
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Sergeant Kidd, a non-party, allegedly violated Plaintiff’s due process rights by removing his

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visitation rights without a rules violation hearing.

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On June 8, 2008, Plaintiff filed the equivalent of a grievance form questioning the

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removal of his rights. On June 11, 2008, Sergeant Taylor, a non-party, responded to the

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grievance. In the response, Sergeant Taylor stated that there was a minor infraction that should

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not have led to the removal of Plaintiff’s visiting privileges.

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On January 26, 2009, Plaintiff received an order from the Merced County Superior Court

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to receive visits from his minor children, ages ten and three. A visit was never given and

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possibly denied on February 10, 2009, by Sergeant Johann, for a stated rules violation.

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On July 20, 2010, Plaintiff submitted a grievance regarding the continued violation of his
visiting rights. Officer Lingenfelter, a non-party, received the form, but did not forward it.
On August 18 and August 27, 2010, Plaintiff filed a writ of habeas corpus regarding his

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right to family support. On March 17, 2011, Plaintiff’s writ was denied for failure to exhaust

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administrative remedies.

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On March 23, 2011, Plaintiff received a reply to one or all of his grievances concerning

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the court ordered visit. Sergeant Lopez, a non-party, stated that Plaintiff should seek another

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court order to see his children.

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On April 7, 2011, Plaintiff sent a grievance to Defendant Cavallero questioning the right

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of his minor children to visit and the policies being used to deny a detainee prisoner his right to

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be a father to his children. Plaintiff did not receive a reply to this grievance.

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On April 11, 2011, Plaintiff received another court order from the Merced County
Superior Court to receive a visit from his minor children.

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On May 11, 2011, Plaintiff received a memo from the desk of Defendant Pazin, authored

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by Sergeant Lopez, stating that the court order for visitation might not be adhered to because of a

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Merced County Jail rule that prohibited children under the age of 12.

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On May 12, 2011, Defendant Blodgett, Sergeant Lopez and Defendant Pazin, denied

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Plaintiff’s minor children the visit authorized and ordered by the Court. Plaintiff claims that the

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denial of visitation was a denial of his constitutional rights of association and privacy.
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Plaintiff alleges that the stated reason for the denial was the safety and security of the

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institution and the safety of the children. Plaintiff reports that the Merced County Jail does not

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allow contact visits of any kind and all visits are behind glass partitions.

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Plaintiff claims a violation of the First, Fifth, Eighth and Fourteenth Amendments. He

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seeks declaratory and injunctive relief and damages.

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III.

Discussion

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A. First Amendment Rights

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Plaintiff contends that the denial of visits by his minor children violated his First

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Amendment right of association. The United States Supreme Court has found that freedom of

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association is among the rights least compatible with incarceration. See Overton v. Bazzetta, 539

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U.S. 126, 131, 123 S.Ct. 2162, 2167 (2003) (upholding prison regulations placing limitations on

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visits with children, including requiring children to be accompanied by a family member or legal

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guardian). “Some curtailment of that freedom must be expected in the prison context.” Id.

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Regulations that curtail the right to freedom of association by restricting family visiting

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privileges are not necessarily unconstitutional. Cf. Dunn v. Castro, 621 F.3d 1196, 1201 (9th

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Cir. 2010) (prisoner’s right to receive visits from his children is not a clearly established

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constitutional right). Indeed, “there is no constitutional right to ‘access to a particular visitor.’”

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Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996) (quoting Kentucky Dep’t of Corr. v.

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Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989) (holding that

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“denial of prison access to a particular visitor is well within the terms of confinement ordinarily

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contemplated by a prison sentence, and therefore is not independently protected by the Due

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Process Clause”)). A denial of visits by a particular visitor, or a temporary denial of all visitation,

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does not raise the same constitutional concerns as withdrawal of all visitation privileges for a

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protracted period. Dunn, 621 F.3d at 1203-05; Overton, 359 U.S. at 137, 123 S.Ct. at 2170 (“If

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the withdrawal of all visitation privileges were permanent or for a much longer period, or if it

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were applied in an arbitrary manner to a particular inmate, the case would present different

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considerations”).

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Here, Plaintiff has not alleged sufficient facts to state a cognizable First Amendment

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claim based on a denial of visitation. Plaintiff does not claim that he was permanently denied

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visiting privileges that were available to all pre-trial detainees or that such visiting privileges

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were withdrawn for an extended period of time. Dunn, 621 F.3d at 1203-05; Overton, 359 U.S.

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at 137, 123 S.Ct. at 2170. Rather, Plaintiff claims denial of visitation specifically with his minor

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children under the age of 12 years. Plaintiff does not have a clearly established constitutional

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right to receive visits from his children. Dunn, 621 F.3d at 1201. According to exhibits attached

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to the first amended complaint, jail policy generally prohibited visits with children under the age

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of 12 years. There is no indication that this jail policy was applied selectively to Plaintiff.

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Overton, 359 U.S. at 137, 123 S.Ct. at 2170.

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B. Due Process: Denial of Visitation

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The Due Process Clause protects prisoners from deprivation of life, liberty or property

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without due process of law. This protection does not extend to access to particular visitors.

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Thompson, 490 U.S. at 461 (“denial of prison access to a particular visitor is well within the

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terms of confinement ordinarily contemplated by a prison sentence, and therefore is not

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independently protected by the Due Process Clause”). Neither federal nor state law has created a

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protected interest in visitation. See Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir.1994) (per

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curiam) (holding that prisoners have no constitutional right to contact visitation); Thompson, 490

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U.S. at 461; Egberto v. McDaniel, 2011 WL 1233358, *9 (D. Nev. Mar. 28, 2011) (“law is clear

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that inmates do not have a right to visitation under the Due Process Clause of the Fourteenth

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Amendment”) (citing Thompson, 490 U.S. at 461.) Accordingly, Plaintiff has no liberty interest

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in visitation with his minor children, and he cannot state a due process claim.

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C. Cruel and Unusual Punishment

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Plaintiff has alleged that denying him visits with his children constitutes cruel and

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unusual punishment. A rule or regulation imposing restrictions regarding who may visit does not

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constitute cruel and unusual punishment. Overton, 539 U.S. at 136 (two-year restriction on

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visitation for certain inmates did not rise to the level of cruel and unusual punishment); Edwards

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v. Carey, 2008 WL 59155, *10 (E.D. Cal. Jan. 3, 2008) (application of family visiting regulation
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did not constitute cruel and unusual punishment). Accordingly, Plaintiff cannot state a

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cognizable claim for cruel and unusual punishment.

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III.

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

Conclusion and Order

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1983. Despite being provided with the standards applicable to his claims, Plaintiff has been

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unable to cure the deficiencies identified by the Court and further leave to amend shall not be

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granted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Accordingly, it is HEREBY ORDERED that Plaintiff’s first amended complaint is
dismissed, with prejudice, for failure to state a claim upon which relief may be granted.
This terminates the action in its entirety.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 5, 2013

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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