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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MICAH D. DECLOUETTE, Plaintiff, 8 vs. 9 ORDER OF DISMISSAL PEOPLE OF THE STATE OF CALIFORNIA, 11 For the Northern District of California United States District Court 10 No. C 12-5316 PJH (PR) Defendant. 12 / 13 Plaintiff, a detainee at San Bruno Jail, has filed a pro se civil rights complaint under 14 42 U.S.C. § 1983. The original complaint was dismissed with leave to amend and plaintiff 15 has filed an amended complaint. 16 17 18 DISCUSSION A. Standard of Review Federal courts must engage in a preliminary screening of cases in which prisoners 19 seek redress from a governmental entity or officer or employee of a governmental entity. 20 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 21 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may 22 be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 23 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police 24 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of 26 the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; 27 the statement need only '"give the defendant fair notice of what the . . . . claim is and the 28 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' 3 requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief 5 above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 6 (citations omitted). A complaint must proffer "enough facts to state a claim to relief that is 7 plausible on its face." Id. at 570. The United States Supreme Court has recently explained 8 the “plausible on its face” standard of Twombly: “While legal conclusions can provide the 9 framework of a complaint, they must be supported by factual allegations. When there are 10 well-pleaded factual allegations, a court should assume their veracity and then determine 11 For the Northern District of California omitted). Although in order to state a claim a complaint “does not need detailed factual 2 United States District Court 1 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct. 12 1937, 1950 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 14 elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged deprivation was committed by a person acting under the 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 17 B. Legal Claims 18 Plaintiff states he was denied visits with his child while at San Bruno Jail. Jail 19 officials allege that plaintiff has been uncooperative, aggressive and making death threats 20 against staff, thus his visits must be behind glass until his behavior improves and he begins 21 to act in ways that are safe for all people. Plaintiff disputes these allegations. 22 Yet, plaintiff is informed that he does not have a due process or Eighth Amendment 23 constitutional right to visitation rights. See generally Ky. Dep't of Corr. v. Thompson, 490 24 U.S. 454 (1989) (considering the denial of visitation rights under the Due Process Clause of 25 the Fourteenth Amendment); Keenan v. Hall, 83 F.3d 1083 (9th Cir.1996) (considering the 26 denial of visitation rights under the Eight Amendment). In addition, “there is no 27 constitutional right of ‘access to a particular visitor.’ ” Keenan, 83 F.3d at 1092 (quoting Ky. 28 Dep't of Corr., 490 U.S. at 460–61); see also Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 2 1 1994); Toussaint v. McCarthy, 801 F.2d 1080, 1113-14 (9th Cir. 1986). If plaintiff is a pre- 2 trial detainee he still does not have an absolute right to contact visitation. See Block v. 3 Rutherford, 468 U.S. 576, 585–89 (1984) (upholding a blanket prohibition on contact 4 visitation for pretrial criminal detainees as reasonably related to a legitimate government 5 interest in security). 6 Thus, plaintiff’s amended complaint will be dismissed and as it is clear that no 7 amount of amendment would cure the deficiencies noted above, this case is dismissed with 8 prejudice. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). 9 The complaint will be DISMISSED and as plaintiff has already been provided an 11 For the Northern District of California United States District Court 10 CONCLUSION opportunity to amend and as it is clear no amount of amendment would cure the 12 deficiencies of this action, the case is DISMISSED with prejudice. 13 14 IT IS SO ORDERED. Dated: February 14, 2013. PHYLLIS J. HAMILTON United States District Judge 15 16 G:\PRO-SE\PJH\CR.12\Declouette5316.dsm.wpd 17 18 19 20 21 22 23 24 25 26 27 28 3

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