Villalobos v. Faulkner, et al.

Filing 20

FINDINGS and RECOMMENDATIONS to Dismiss Action with Prejudice for Failure/Inability to State a Claim; The Clerk of Court is Directed to Assign a District Judge, signed by Magistrate Judge Sheila K. Oberto on 11/29/17. Twenty-One Day Objection Deadline. This Case is Assigned to District Judge Dale A. Drozd and Magistrate Judge Sheila K. Oberto. The New Case No. is: 1:17-cv-01109-DAD-SKO. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARDO VILLALOBOS, Jr,

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Case No. 1:17-cv-01109-SKO (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITH PREJUDICE FOR
FAILURE/INABILITY TO STATE A CLAIM

Plaintiff,

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v.

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HATTON, et al.,

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(Doc. 1)
TWENTY-ONE (21) DAY DEADLINE

Defendants.

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THE CLERK OF THE COURT IS DIRECTED TO
ASSIGN A DISTRICT JUDGE

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FINDINGS

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A.

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Plaintiff, Ricardo Villalobos, Jr, is a prisoner in the custody of the California Department

Background

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of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s Complaint is before

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the Court for screening. (Doc. 1.) Because Plaintiff seeks to proceed on a claim for which he has

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no constitutional right, it is recommended that this action be DISMISSED with prejudice.

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B.

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

Screening Requirement

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C.
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§ 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma

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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source

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of substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A complaint

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will be dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts under a

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cognizable legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th

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Cir. 1990).

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C.

Summary of the Complaint

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Plaintiff complains of acts that relate back to his initial incarceration in the early 2000’s.

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At that time, Plaintiff was classified as a “R” suffix, High risk Sex Offender because of his 1991

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juvenile arrest record. This resulted in restricting his contact visits with minors. Although

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Plaintiff has repeatedly objected and appealed, every subsequent classification committee has

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included his “R” suffix classification. Plaintiff alleges that the “R” suffix classification violates

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his right to have contact visits with his children, and that the “R” suffix classification is wrongly

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based on an incident in his juvenile arrest record, which cannot be used against him as an adult.

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As discussed below, Plaintiff has no constitutional right to contact visitation with his minor

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children. Thus, this action should be dismissed with prejudice.

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D.

Pleading Requirements
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Federal Rule of Civil Procedure 8(a)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much.

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Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e

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have never held -- and we know of no authority supporting the proposition -- that a pleading may

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be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also

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McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8,

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and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”).

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is

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plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal, at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
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However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights

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complaint may not supply essential elements of the claim that were not initially pled,” Bruns v.

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Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents,

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673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences,

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Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and

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citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient,

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and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).
DISCUSSION

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Plaintiff Has No Right to Contact Visitation With His Children1

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A.

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It is well settled that a parent has a “fundamental liberty interest” in “the companionship

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and society of his or her child” outside of prison. Lee v. City of Los Angeles, 250 F.3d 668, 685

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(9th Cir. 2001). And “a parent’s right to participate in his child’s care, custody, and

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management” has been acknowledged as a clearly established broad general proposition. James

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v. Rowlands, 606 F.3d 646, 652-53 (9th Cir. 2010).
However, “[d]uring the period of confinement in prison, the right of intimate association,

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‘a fundamental element of personal liberty,’ is necessarily abridged.” Gerber v. Hickman, 291

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F.3d 617, 621 (9th Cir. 2002) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618, 104

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S.Ct. 3244, 82 L.Ed.2d 462 (1984). “Intimate association protects the kinds of relationships ‘that

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attend the creation and sustenance of a family -- marriage, childbirth, the raising and education of

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The Court notes that Plaintiff is allowed non-contact visitation with minors. (See Doc. 1, p. 12.)

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children, and cohabitation with one’s relatives. . . .’” Id. at 619, 104 S.Ct. 3244 (citations

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omitted). “The denial of prison access to a particular visitor is well within the terms of

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

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protected by the Due Process Clause.” Kentucky Department of Corrections v. Thompson, 490

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U.S. 454, 461, 109 S.Ct. 1904 (1989) (internal citation and quotation marks omitted). “The loss

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of the right to intimate association is simply part and parcel of being imprisoned for conviction of

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a crime.” Gerber, 291 F.3d at 621.

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It is likewise “well-settled that prisoners have no constitutional right while incarcerated to

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contact visits.” Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (en banc); see also Keenan

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v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (affirming dismissal of prisoner’s claim challenging

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regulation that denied him visits from persons other than his immediate family); Barnett v.

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Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (per curiam) (holding that prisoners do not have a

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constitutional right to contact visitation privileges); Toussaint v. McCarthy, 801 F.2d 1080, 1114

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(9th Cir. 1986) (“To the extent that denial of contact visitation is restrictive and even harsh, it is

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part of the penalty that criminals pay for their offenses against society.”), abrogated in part on

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other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995). Thus, it matters not

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whether prison officials are wrongly using Plaintiff’s 1991 juvenile arrest record to classify

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Plaintiff as a “R Suffix High Risk Sex Offender.” Plaintiff has no constitutionally protected right

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to have contact visits with his minor children while incarcerated. Thus, he is unable to state a

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cognizable claim under § 1983 and this action should be dismissed.
RECOMMENDATION

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Plaintiff’s Complaint fails to state a cognizable claim against any of the named

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Defendants. Given that Plaintiff has no constitutionally protected right to contact visits

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with his children, the defects in his pleading are not capable of being cured through

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amendment. Amendment thus need not be granted since futile. Akhtar v. Mesa, 698 F.3d

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1202, 1212-13 (9th Cir. 2012).

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Accordingly, it is HEREBY RECOMMENDED that this action be dismissed
with prejudice. The Clerk of the Court is directed to assign a district judge to this action.
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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. '

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636(b)(l). Within twenty-one (21) days of service of these Findings and

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Recommendations, Plaintiff may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in

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the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov.

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18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

November 29, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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