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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RICHARDO VILLALOBOS, Jr, 10 Case No. 1:17-cv-01109-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITH PREJUDICE FOR FAILURE/INABILITY TO STATE A CLAIM Plaintiff, 11 v. 12 HATTON, et al., 13 (Doc. 1) TWENTY-ONE (21) DAY DEADLINE Defendants. 14 THE CLERK OF THE COURT IS DIRECTED TO ASSIGN A DISTRICT JUDGE 15 16 FINDINGS 17 A. 18 Plaintiff, Ricardo Villalobos, Jr, is a prisoner in the custody of the California Department Background 19 of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s Complaint is before 21 the Court for screening. (Doc. 1.) Because Plaintiff seeks to proceed on a claim for which he has 22 no constitutional right, it is recommended that this action be DISMISSED with prejudice. 23 B. 24 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 28 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 1 1 § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed 2 per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed 3 as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has 4 not alleged imminent danger of serious physical injury does not qualify to proceed in forma 5 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 6 7 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 8 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 9 of substantive rights, but merely provides a method for vindicating federal rights conferred 10 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 11 12 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 13 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 14 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A complaint 15 will be dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts under a 16 cognizable legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th 17 Cir. 1990). 18 C. Summary of the Complaint 19 Plaintiff complains of acts that relate back to his initial incarceration in the early 2000’s. 20 At that time, Plaintiff was classified as a “R” suffix, High risk Sex Offender because of his 1991 21 juvenile arrest record. This resulted in restricting his contact visits with minors. Although 22 Plaintiff has repeatedly objected and appealed, every subsequent classification committee has 23 included his “R” suffix classification. Plaintiff alleges that the “R” suffix classification violates 24 his right to have contact visits with his children, and that the “R” suffix classification is wrongly 25 based on an incident in his juvenile arrest record, which cannot be used against him as an adult. 26 As discussed below, Plaintiff has no constitutional right to contact visitation with his minor 27 children. Thus, this action should be dismissed with prejudice. 28 /// 2 1 2 D. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 3 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 4 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 5 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 6 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 7 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 8 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 9 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 10 when a pleading says too little -- the baseline threshold of factual and legal allegations required 11 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 12 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 13 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 14 have never held -- and we know of no authority supporting the proposition -- that a pleading may 15 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 16 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 17 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 18 impose unfair burdens on litigants and judges”). 19 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 20 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 22 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 23 plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 24 allegations are accepted as true, but legal conclusions are not. Iqbal, at 678; see also Moss v. U.S. 25 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 26 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 27 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 28 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 3 1 However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,” 2 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 3 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 4 Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 5 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 6 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 7 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 8 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 9 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 10 11 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 12 when the opportunity to correct the pleadings has been afforded and there has been no 13 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 14 2013). DISCUSSION 15 Plaintiff Has No Right to Contact Visitation With His Children1 16 A. 17 It is well settled that a parent has a “fundamental liberty interest” in “the companionship 18 and society of his or her child” outside of prison. Lee v. City of Los Angeles, 250 F.3d 668, 685 19 (9th Cir. 2001). And “a parent’s right to participate in his child’s care, custody, and 20 management” has been acknowledged as a clearly established broad general proposition. James 21 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, 22 23 ‘a fundamental element of personal liberty,’ is necessarily abridged.” Gerber v. Hickman, 291 24 F.3d 617, 621 (9th Cir. 2002) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 25 S.Ct. 3244, 82 L.Ed.2d 462 (1984). “Intimate association protects the kinds of relationships ‘that 26 attend the creation and sustenance of a family -- marriage, childbirth, the raising and education of 27 28 1 The Court notes that Plaintiff is allowed non-contact visitation with minors. (See Doc. 1, p. 12.) 4 1 children, and cohabitation with one’s relatives. . . .’” Id. at 619, 104 S.Ct. 3244 (citations 2 omitted). “The denial of prison access to a particular visitor is well within the terms of 3 confinement ordinarily contemplated by a prison sentence, and therefore is not independently 4 protected by the Due Process Clause.” Kentucky Department of Corrections v. Thompson, 490 5 U.S. 454, 461, 109 S.Ct. 1904 (1989) (internal citation and quotation marks omitted). “The loss 6 of the right to intimate association is simply part and parcel of being imprisoned for conviction of 7 a crime.” Gerber, 291 F.3d at 621. 8 It is likewise “well-settled that prisoners have no constitutional right while incarcerated to 9 contact visits.” Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002) (en banc); see also Keenan 10 v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (affirming dismissal of prisoner’s claim challenging 11 regulation that denied him visits from persons other than his immediate family); Barnett v. 12 Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (per curiam) (holding that prisoners do not have a 13 constitutional right to contact visitation privileges); Toussaint v. McCarthy, 801 F.2d 1080, 1114 14 (9th Cir. 1986) (“To the extent that denial of contact visitation is restrictive and even harsh, it is 15 part of the penalty that criminals pay for their offenses against society.”), abrogated in part on 16 other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995). Thus, it matters not 17 whether prison officials are wrongly using Plaintiff’s 1991 juvenile arrest record to classify 18 Plaintiff as a “R Suffix High Risk Sex Offender.” Plaintiff has no constitutionally protected right 19 to have contact visits with his minor children while incarcerated. Thus, he is unable to state a 20 cognizable claim under § 1983 and this action should be dismissed. RECOMMENDATION 21 22 Plaintiff’s Complaint fails to state a cognizable claim against any of the named 23 Defendants. Given that Plaintiff has no constitutionally protected right to contact visits 24 with his children, the defects in his pleading are not capable of being cured through 25 amendment. Amendment thus need not be granted since futile. Akhtar v. Mesa, 698 F.3d 26 1202, 1212-13 (9th Cir. 2012). 27 28 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. 5 1 These Findings and Recommendations will be submitted to the United States 2 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 3 636(b)(l). Within twenty-one (21) days of service of these Findings and 4 Recommendations, Plaintiff may file written objections with the Court. The document 5 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 6 Plaintiff is advised that failure to file objections within the specified time may result in 7 the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 8 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 11 12 IT IS SO ORDERED. Dated: November 29, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 .

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