James White v. Pazin et al

Filing 9

ORDER DISMISSING CASE WITH LEAVE TO AMEND; Amended Complaint due by 11/12/2013, signed by Magistrate Judge Barbara A. McAuliffe on 10/07/2013. (Attachments: # 1 Amended Complaint)(Flores, E)

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1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 JAMES E. WHITE, 10 Plaintiff, 11 12 v. MARK N. PAZIN, et al., 13 Defendants. 14 15 16 I. ) ) ) ) ) ) ) ) ) ) 1:12-cv-00917-BAM (PC) ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (ECF No. 1) Screening Requirement and Standard Plaintiff James E. White (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis. Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 6, 2012. 18 Plaintiff’s complaint is currently before the Court for screening. 19 The Court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 21 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 22 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 23 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 24 U.S.C. § 1915(e)(2)(B)(ii). 25 A complaint must contain “a short and plain statement of the claim showing that the 26 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 27 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1 1 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 2 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 3 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 4 (internal quotation marks and citation omitted). 5 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 6 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 7 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially 8 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each 9 named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 10 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The 11 sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with 12 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 13 1949 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Complaint 15 A. Summary of Allegations 16 Plaintiff is currently housed at Corcoran State Prison. The events alleged in Plaintiff’s 17 complaint occurred while he was a pre-trial detainee housed in the Merced County Jail. Plaintiff 18 names the following Defendants: (1) Mark N. Pazin, Sheriff/Coroner; (2) Merced County 19 Sheriff’s Department; (3) Under Sheriff Blake; (4) Under Sheriff Tom Cavallero; (5) 20 Commander Joe Scott, Merced County Sheriff’s Department; (6) Commander Thoreson, Merced 21 County Sheriff’s Department; and (7) Sergeant Blodgett, Merced County Sheriff’s Department. 22 Plaintiff alleges as follows: In 2007, Plaintiff learned that the Merced County Jail 23 prohibited children under the age of 12 years old from visitation. Approximately two years later, 24 on January 26, 2009, Superior Court Judge Carol Ash approved Plaintiff’s visitation with his 25 minor children unless an emergency situation arose. On July 23, 2010, Plaintiff submitted a 26 grievance requesting a copy of the jail’s rules and regulations. 27 28 On December 29, 2010, Plaintiff sought a writ of habeas corpus for visitation with his minor children. 2 1 On March 23, 2011, Plaintiff submitted a grievance regarding the rule barring pretrial 2 detainees from visitation with their minor children. (ECF No. 1, p. 47.) On March 23, 2011, jail 3 staff responded to Plaintiff’s grievance regarding a jail rule stating, “No minor under the age of 4 12 will be allowed to visit.” Staff instructed Plaintiff to obtain a current court order so that his 5 request could be reconsidered. (ECF No. 1, p. 45.) 6 7 On April 7, 2011, Plaintiff submitted another grievance regarding his right of visitation with his minor children. (ECF No. 1, p. 49.) 8 9 On April 11, 2011, Judge Ash issued another court order stating that Plaintiff could have visits with his minor children while in the county jail. (ECF No. 1, p. 46.) 10 Plaintiff claims that the jail’s rules required visitors to be at least 18 years of age, but that 11 California regulations permit visitation with minor children under the age of 17 accompanied by 12 a legal guardian. Plaintiff alleges that these rights were violated by Under Sheriff Blake. 13 Plaintiff was convicted on May 31, 2011. 14 Plaintiff’s petition for writ of habeas corpus was denied on June 15, 2011, for failure to 15 exhaust administrative remedies. (ECF No. 1, p. 51.) 16 17 According to a portion of the jail manual, as of July 1, 2011, the jail required a parent or legal guardian to accompany visitors under the age of 17. (ECF No. 1, p. 66.) 18 Plaintiff claims a violation of his right of association with his minor children in violation 19 of the Fifth Amendment, First Amendment and Due Process Clause of the Fourteenth 20 Amendment. Plaintiff asserts causes of action for “deliberate indifference,” “cruel and unusual 21 punishment,” deprivation of parental rights, and violation of federal and state law. 22 III. Deficiencies of Complaint 23 A. Rule 8 24 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and 25 plaint statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). As 26 noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the 27 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 28 556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as 3 1 true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting 2 Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are 3 not. Id; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969. 4 Plaintiff’s complaint does not set forth a short and plain statement of his claims. 5 Plaintiff’s allegations against the defendants are disjointed and not in chronological order. 6 Plaintiff also has not provided the Court with the basic facts underlying his claim, including, but 7 not limited to, how long he was incarcerated at the Merced County Jail, the ages of his minor 8 children, and when, or if, his children attempted to visit him while in jail. 9 B. Linkage Requirement 10 The Civil Rights Act under which this action was filed provides: 11 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 proceeding for redress. 12 13 14 15 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions 16 of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. 17 Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 18 Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a constitutional 19 right, within the meaning of section 1983, if he does an affirmative act, participates in another's 20 affirmative acts, or omits to perform an act which he is legally required to do that causes the 21 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). 22 In his complaint, Plaintiff fails to identify and clearly link multiple defendants to the 23 causes of action alleged. Plaintiff must link each named defendant with some affirmative act or 24 omission that demonstrates a violation of Plaintiff’s rights. 25 C. First Amendment Rights 26 Plaintiff contends that the denial of visits by his minor children violated his First 27 Amendment right of association. The United States Supreme Court has found that freedom of 28 association is among the rights least compatible with incarceration. See Overton v. Bazzetta, 539 4 1 U.S. 126, 131, 123 S.Ct. 2162, 2167 (2003) (upholding prison regulations placing limitations on 2 visits with children, including requiring children to be accompanied by a family member or legal 3 guardian). “Some curtailment of that freedom must be expected in the prison context.” Id. 4 Regulations that curtail the right to freedom of association by restricting family visiting 5 privileges are not necessarily unconstitutional. Cf. Dunn v. Castro, 621 F.3d 1196, 1201 (9th 6 Cir. 2010) (prisoner’s right to receive visits from his children is not a clearly established 7 constitutional right). Indeed, “there is no constitutional right to ‘access to a particular visitor.’” 8 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996) (quoting Kentucky Dep’t of Corr. v. 9 Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989) (holding that 10 “denial of prison access to a particular visitor is well within the terms of confinement ordinarily 11 contemplated by a prison sentence, and therefore is not independently protected by the Due 12 Process Clause”)). A denial of visits by a particular visitor, or a temporary denial of all visitation, 13 does not raise the same constitutional concerns as withdrawal of all visitation privileges for a 14 protracted period. Dunn, 621 F.3d at 1203-05; Overton, 359 U.S. at 137, 123 S.Ct. at 2170 (“If 15 the withdrawal of all visitation privileges were permanent or for a much longer period, or if it 16 were applied in an arbitrary manner to a particular inmate, the case would present different 17 considerations”). 18 Here, Plaintiff has not alleged sufficient facts to state a cognizable First Amendment 19 claim based on a denial of visitation. It is unclear whether Plaintiff was denied all visitation, 20 whether Plaintiff was entitled to visitation rights with his minor children, whether any of his 21 minor children attempted to visit or if any reasons were given for any denial of visitation with his 22 minor children. Plaintiff also does not identify who was responsible for the decision, if any, to 23 deny him visitation. Accordingly, Plaintiff fails to state First Amendment claim. 24 D. Due Process: Denial of Visitation 25 The Due Process Clause protects prisoners from deprivation of life, liberty or property 26 without due process of law. Thompson, 490 U.S. at 461 (“denial of prison access to a particular 27 visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, and 28 therefore is not independently protected by the Due Process Clause”). Neither federal nor state 5 1 law has created a protected interest in visitation. See Barnett v. Centoni, 31 F.3d 813, 817 (9th 2 Cir.1994) (per curiam) (holding that prisoners have no constitutional right to contact visitation); 3 Thompson, 490 U.S. at 461; Egberto v. McDaniel, 2011 WL 1233358, *9 (D. Nev. Mar. 28, 4 2011) (“law is clear that inmates do not have a right to visitation under the Due Process Clause 5 of the Fourteenth Amendment”) (citing Thompson, 490 U.S. at 461.) Accordingly, Plaintiff has 6 no liberty interest in visitation with his minor children, and he cannot state a due process claim. 7 E. Cruel and Unusual Punishment 8 Plaintiff has alleged that denying him visits with his children constitutes cruel and 9 unusual punishment. A rule or regulation imposing restrictions regarding who may visit does not 10 constitute cruel and unusual punishment. Overton, 539 U.S. at 136 (two-year restriction on 11 visitation for certain inmates did not rise to the level of cruel and unusual punishment); Edwards 12 v. Carey, 2008 WL 59155, *10 (E.D. Cal. Jan. 3, 2008) (application of family visiting regulation 13 did not constitute cruel and unusual punishment). Accordingly, Plaintiff cannot state a 14 cognizable claim for cruel and unusual punishment. 15 F. State Court Orders 16 To the extent that Plaintiff is complaining about Defendants’ purported failure to abide 17 by a State Court order or orders, this Court lacks jurisdiction to enforce an order of the state 18 court. 19 III. 20 Plaintiff’s complaint fails to state a claim upon which relief may be granted under section Conclusion and Order 21 1983. The Court will provide Plaintiff with the opportunity to file a first amended complaint to 22 the extent that he is able. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may 23 not change the nature of this suit by adding new, unrelated claims in his amended complaint. 24 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 25 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 26 the named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 27 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must 28 6 1 be [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 2 555 (citations omitted). 3 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 4 Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s 5 first amended complaint must be “complete in itself without reference to the prior or superseded 6 pleading.” Local Rule 220. 7 Based on the foregoing, it is HEREBY ORDERED that: 8 1. The Clerk’s Office shall send Plaintiff a complaint form; 9 2. Plaintiff’s complaint is dismissed for failure to state a claim upon which relief 10 may be granted; 11 3. 12 13 14 Within thirty (30) days from the date of service of this order, Plaintiff shall file a first amended complaint; and 4. If Plaintiff fails to file a first amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim. 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara October 7, 2013 18 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 7

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