Love v. Salinas Valley State Prison

Filing 22

ORDER by Judge James Donato granting 17 Motion to Dismiss. (lrcS, COURT STAFF) (Filed on 6/1/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNARD ISAIAH LOVE,
Plaintiff,

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ORDER GRANTING MOTION TO
DISMISS

v.

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SALINAS VALLEY STATE PRISON, et
al.,

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United States District Court
Northern District of California

Case No. 16-cv-01981-JD

Re: Dkt. No. 17

Defendants.

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Plaintiff, a state prisoner proceeding pro se, proceeds with a civil rights action under 42

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U.S.C. § 1983. On November 15, 2016, defendants filed a motion to dismiss for failure to state a

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claim. Plaintiff was repeatedly informed that he needed to file an opposition but only a filed a few

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sentence response. The Court has still looked to the merits and the motion is granted.

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BACKGROUND
This case proceeds pursuant to the amended complaint with respect to plaintiff’s claim that
he was improperly classified as a sex offender. He states that an “R” suffix, which denotes an
underlying sex related offense, was improperly added to his custody designation. Plaintiff‘s

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commitment offense involved an incident where he was an accomplice while another defendant
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forced the victim to perform sex acts and the other defendant assaulted her. Plaintiff pled guilty to
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the assault, but the sex-related charges were dismissed. At a Unit Classification Committee
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(“UCC”) hearing, the UCC noted that plaintiff had not participated in the sexual acts of the
commitment offense, but the UCC added the “R” suffix because plaintiff had an opportunity to

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intercede in the sexual assault but did not.
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LEGAL STANDARD

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal
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sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200
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(9th Cir. 2003). All allegations of material fact are taken as true. Erickson v. Pardus, 551 U.S.
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89, 94 (2007). However, legally conclusory statements, not supported by actual factual
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allegations, need not be accepted. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (courts are
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not bound to accept as true “a legal conclusion couched as a factual allegation”). “A plaintiff’s

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obligation to provide the grounds of his entitle[ment] to relief requires more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

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United States District Court
Northern District of California

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (internal quotation
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marks omitted). Rather, the allegations in the complaint “must be enough to raise a right to relief
above the speculative level.” Id.

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A motion to dismiss should be granted if the complaint does not proffer enough facts to
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state a claim for relief that is plausible on its face. See id. at 558-59, 574. “[W]here the well-

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pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
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complaint has alleged- but it has not ‘show[n]’- ‘that the pleader is entitled to relief.’” Iqbal, 556

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U.S. at 679 (citation omitted).
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Review is limited to the contents of the complaint, see Clegg v. Cult Awareness Network,
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18 F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to the complaint or
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documents the complaint necessarily relies on and whose authenticity is not contested. See Lee v.
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County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). In addition, the court may take judicial
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notice of facts that are not subject to reasonable dispute. See id. at 688 (discussing Fed. R. Evid.
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201(b)).
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The Due Process Clause protects against the deprivation of liberty without due process of
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law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In order to invoke the protection of the Due
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Process Clause, a plaintiff must first establish the existence of a liberty interest for which the
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protection is sought. Id. Liberty interests may arise from the Due Process Clause itself, or from

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an expectation or interest created by prison regulations. Id. The Due Process Clause itself does

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not confer on inmates a liberty interest in avoiding “more adverse conditions of confinement.” Id.

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The existence of a liberty interest created by prison regulations is determined by focusing on the

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nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995). Such liberty interests

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are “generally limited to freedom from restraint which . . . imposes atypical and significant

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hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484 (interal

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citations omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).

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Changes in conditions relating to classification and reclassification do not implicate the
Due Process Clause itself. See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987)

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United States District Court
Northern District of California

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(citing Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)) (no constitutional right to particular

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classification). Yet, the classification of an inmate as a sex offender may be the type of atypical

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and significant hardship on the inmate in relation to the ordinary incidents of prison life that the

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Supreme Court held created a protected liberty interest in Sandin. See Neal v. Shimoda, 131 F.3d

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818, 827-30 (9th Cir. 1997). While such a liberty interest is not created merely by the requirement

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that sex offenders participate in a specified treatment program, see id. at 830, in Neal the Ninth

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Circuit found that “the stigmatizing consequences of the attachment of the ‘sex offender’ label

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coupled with the subjection of the targeted inmate to a mandatory treatment program whose

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successful completion is a precondition for parole eligibility create the kind of deprivations of

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liberty that require procedural protections,” id. Under these circumstances, inmates are entitled to

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procedural due process before being classified as sex offenders. See id. at 830-31 (inmates

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entitled to procedural protections of Wolff v. McDonnell, 418 U.S. 539 (1974), including notice of

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reasons for classification as sex offender and a hearing at which the inmate may call witnesses and

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present documentary evidence in his defense).

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DISCUSSION

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In the amended complaint plaintiff argues that he has suffered an atypical and significant
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hardship with respect to the sex offender classification. He argues that he was not allowed
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overnight visits to consummate his marriage and his ability to acquire his bachelor degree was

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disrupted. Yet, prisoners have no constitutional right to contact or conjugal visitation. See

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Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994); Toussaint v. McCarthy, 801 F.2d 1080,

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1113-14 (9th Cir. 1986). Nor is California’s regulatory language regarding such visits sufficiently

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mandatory to meet the standard set forth above in Sandin. See Cal. Code Regs. tit. 15, § 3174(e)

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(any contact or conjugal visit is a “privilege,” not a right). Nor do prisoners have a liberty interest

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in prison education. Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987); see also Rizzo

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v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (Due Process clause does not create property

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interest in vocational instruction courses).

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While the Ninth Circuit found in Neal that the stigmatizing consequences of the sex

United States District Court
Northern District of California

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offender label combined with mandatory treatment programs could affect parole eligibility and,

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therefore, prisoners are entitled to procedural due process protections, none of those factors are

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present in this case. Plaintiff’s allegations regarding conjugal visits and disruptions to his

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education do not demonstrate atypical and significant hardships or any other liberty interest. To

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the extent that plaintiff argues defendants violated prison regulations, this fails to state a claim for

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a federal constitutional violation. Moreover, as there was no liberty interest at issue, the Court

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need not address the procedural protections that were allegedly denied at the UCC hearing.

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Defendants’ motion to dismiss is granted because plaintiff has failed to allege a violation

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of the Due Process Clause itself, or from an interest created by the prison regulations. Because

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plaintiff has already been granted leave to amend and because he failed to file a formal opposition

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to the motion to dismiss, the complaint is dismissed with prejudice.

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CONCLUSION

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The motion to dismiss (Docket No. 17) is GRANTED and this action is dismissed. The

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Clerk shall close this case.
IT IS SO ORDERED.
Dated: June 1, 2017

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNARD ISAIAH LOVE,

Case No. 16-cv-01981-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SALINAS VALLEY STATE PRISON, et
al.,

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Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on June 1, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Kennard Isaiah Love ID: AA-7389
California Men's Colony State Prison
P.O. Box 8101
San Luis Obispo, CA 93409

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Dated: June 1, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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