Declouette v. People of the State of Calfornia

Filing 6

ORDER OF DISMISSAL, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 2/15/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 2/14/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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MICAH D. DECLOUETTE,
Plaintiff,

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vs.

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ORDER OF DISMISSAL

PEOPLE OF THE STATE OF
CALIFORNIA,

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For the Northern District of California

United States District Court

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No. C 12-5316 PJH (PR)

Defendant.
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Plaintiff, a detainee at San Bruno Jail, has filed a pro se civil rights complaint under

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42 U.S.C. § 1983. The original complaint was dismissed with leave to amend and plaintiff

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has filed an amended complaint.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at

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1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police

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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of

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the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;

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the statement need only '"give the defendant fair notice of what the . . . . claim is and the

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grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations

allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief

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above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is

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plausible on its face." Id. at 570. The United States Supreme Court has recently explained

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the “plausible on its face” standard of Twombly: “While legal conclusions can provide the

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framework of a complaint, they must be supported by factual allegations. When there are

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well-pleaded factual allegations, a court should assume their veracity and then determine

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For the Northern District of California

omitted). Although in order to state a claim a complaint “does not need detailed factual

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United States District Court

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whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1950 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Legal Claims

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Plaintiff states he was denied visits with his child while at San Bruno Jail. Jail

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officials allege that plaintiff has been uncooperative, aggressive and making death threats

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against staff, thus his visits must be behind glass until his behavior improves and he begins

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to act in ways that are safe for all people. Plaintiff disputes these allegations.

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Yet, plaintiff is informed that he does not have a due process or Eighth Amendment

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constitutional right to visitation rights. See generally Ky. Dep't of Corr. v. Thompson, 490

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U.S. 454 (1989) (considering the denial of visitation rights under the Due Process Clause of

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the Fourteenth Amendment); Keenan v. Hall, 83 F.3d 1083 (9th Cir.1996) (considering the

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denial of visitation rights under the Eight Amendment). In addition, “there is no

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constitutional right of ‘access to a particular visitor.’ ” Keenan, 83 F.3d at 1092 (quoting Ky.

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Dep't of Corr., 490 U.S. at 460–61); see also Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir.
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1994); Toussaint v. McCarthy, 801 F.2d 1080, 1113-14 (9th Cir. 1986). If plaintiff is a pre-

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trial detainee he still does not have an absolute right to contact visitation. See Block v.

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Rutherford, 468 U.S. 576, 585–89 (1984) (upholding a blanket prohibition on contact

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visitation for pretrial criminal detainees as reasonably related to a legitimate government

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interest in security).

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Thus, plaintiff’s amended complaint will be dismissed and as it is clear that no

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amount of amendment would cure the deficiencies noted above, this case is dismissed with

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prejudice. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000).

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The complaint will be DISMISSED and as plaintiff has already been provided an

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For the Northern District of California

United States District Court

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CONCLUSION

opportunity to amend and as it is clear no amount of amendment would cure the

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deficiencies of this action, the case is DISMISSED with prejudice.

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IT IS SO ORDERED.
Dated: February 14, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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