Gemeny v. Brown et al

Filing 25

ORDER signed by Magistrate Judge Allison Claire on 10/2/13 ORDERING that the 10/16/13 Initial Scheduling Conference is VACATED; IT IS RECOMMENDED that this case be dismissed for failure to state a claim. These Findings and Recommendations are submitted to U.S. District Judge Garland E. Burrell, Jr. Objections to these F&R due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BLAINE B. GEMENY, III,

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Plaintiff,

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v.

No. 2:13-cv-0874 GEB AC

ORDER AND

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EDMUND G. BROWN, et al.,

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Defendants.

FINDINGS AND RECOMMENDATIONS

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Plaintiff is proceeding in this action pro se and in forma pauperis. The federal in forma

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pauperis statute authorizes federal courts to dismiss a case if the action is legally “frivolous or

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

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a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467
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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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In this case, plaintiff, a convicted felon who was released from Logan Correctional Center

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in 2006, complains that he was recently refused visitation with an inmate at High Desert State

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Prison (“HDSP”) in violation of plaintiff’s due process rights. When plaintiff sought approval to

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visit said inmate, plaintiff was denied by the California Department of Corrections and

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Rehabilitation (“CDCR”) on August 31, 2012 pursuant to California Code of Regulations

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(“CCR”), title 15, §3172.1(b)(6)(B) and § 3172.1[b](4). Compl., Attach., ECF No. 1 at 8.

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Plaintiff accuses defendants Edmund G. Brown, Governor of California, Matthew Cate, Secretary

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of CDCR, and Ron Barnes, Warden of HDSP, of racketeering, mail fraud, and conspiring to

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deprive plaintiff of his constitutional rights. Plaintiff seeks $33,000,000 in damages and

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declaratory and injunctive relief.

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Generally, there is no constitutional right to visitation for convicted prisoners, their family

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and spouses. Overton v. Bazzetta, 539 U.S. 126, 136-37 (2003) (upholding prison regulations

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banning visitation privileges entirely for a two-year period for inmates with two substance abuse

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violations and regulating the conditions of visitations by others as not affecting constitutional

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rights that survive incarceration); Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454,

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460-61 (1989) (no liberty interest in visits with “a particular visitor”); Gerber v. Hickman, 291

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F.3d 617, 621 (9th Cir. 2002), cert. denied, 537 U.S. 1039 (“It is well-settled that prisoners have

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no constitutional rights while incarcerated to contact visits or conjugal visits.”); Toussaint v.

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McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986) (denial of contact visitation does not violate

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Eighth Amendment); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d

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1318 (9th Cir. 1998). Because there is no federal or U.S. Constitutional right to a visit with a

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prisoner, plaintiff’s complaint fails to state a claim upon which relief may be granted.
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Moreover, the Supreme Court addressed the issue of whether or not state prison policies

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create a protected liberty interest in Sandin v. Conner, 515 U.S. 472 (1995). In Sandin, the

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Supreme Court was called upon to determine whether Hawaii prison regulations or the Due

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Process Clause afforded Sandin a protected liberty interest that would entitle him to procedural

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protections before transfer into segregation. The Court held that prisoners have liberty interests

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protected by the Due Process Clause only where the contemplated restraint “imposes atypical and

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significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin,

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115 S. Ct. at 2300. In its specific application to inmate Sandin, the Court stated the test another

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way: “Based on a comparison between inmates inside and outside disciplinary segregation, the

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state’s actions in placing [Sandin] there for 30 days did not work a major disruption in his

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environment .” Id. at 2301. The Court rejected its prior test traditionally used to determine

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whether a prison regulation creates a liberty interest, to wit: whether the relevant regulation

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contains language that is mandatory or discretionary. Id. at 2298-2300. The Court in its new

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approach seeks to prevent turning every rule or regulation that establishes a procedure or requires

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the provision of an amenity into a right that implicates a liberty interest.

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Looking at the regulatory language at issue here, 15 CCR § 3170.1 sets forth general

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substantive criteria which must be followed and circumstances under which visitation must be

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approved. However, section 3172.1(b) specifically provides that visitation may be discretionarily

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denied for reasons other than those set forth in the regulations, such as here, where (1) the

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prospective visitor was deemed to have falsified information, 15 CCR §3172(b)(6)(B), and (2) the

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prospective visitor is a former prison inmate who has not received the prior written approval of

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the institution head or designee, id. § 3172.1(b)(4). As to the latter reason, after one year from the

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date of a former inmate’s discharge from an institution/facility, or after discharge from parole or

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outpatient status, the institution head will only deny visiting by a former prison inmate for reasons

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that would apply to any other person as set forth in this article. Id. § 3172.1(b)(4).

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This reservation of the right to allow and disallow visits “is not such that an inmate can

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reasonably form an objective expectation that a visit would necessarily be allowed absent the

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occurrence of one of the listed conditions.” See Thompson, 490 U.S. at 464-65 (finding no
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protected liberty interest in Kentucky regulations). Because a visit may be denied regardless of

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compliance with substantive criteria, this language is not sufficiently mandatory to meet the first

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prong of the Sandin test, and therefore no protected liberty interest requiring constitutional

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protection is created. Because no amendment could remedy the issues identified, the complaint

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should be dismissed with prejudice.

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Accordingly, IT IS HEREBY ORDERED that the October 16, 2013 initial scheduling
conference is vacated; and

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IT IS HEREBY RECOMMENDED that this case be dismissed for failure to state a claim.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Courts order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 2, 2013

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