Ortiz v. Secretary for the Department of Corrections , 156 F. App'x 132 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12843
November 16, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-22057-CV-WMH
RODOLFO G. ORTIZ,
Plaintiff-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 16, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Rodolfo G. Ortiz, proceeding pro se, appeals the district court’s dismissal of
his 42 U.S.C. § 1983 action against James V. Crosby, Jr., Secretary of the Florida
Department of Corrections (“FDOC”), for failure to state a claim upon which relief
could be granted. On appeal, he argues that his complaint stated a violation of his
constitutional right to be free from cruel and unusual punishment in the form of
physical and mental torture. More specifically, Ortiz asserts that the following
FDOC policies constitute such torture: depriving inmates who serve a long period
of incarceration of conjugal visits or other forms of sexual contact; prohibiting
nude magazines and photographs; and allowing guards of the opposite sex to
supervise him. We affirm.
Section 1915(e) provides, among other things, that a district court may
dismiss any in forma pauperis action if the court finds that the action fails to state a
claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). We
review dismissals under § 1915(e)(2)(B)(ii) de novo, viewing the allegations in the
complaint as true. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To
prevail in a civil rights action brought pursuant to § 1983, a plaintiff must show
that he was deprived of a federal right by a person acting under color of state law.
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
The Eighth Amendment, which is applicable to states through the Fourteenth
Amendment, forbids cruel and unusual punishment. See U.S. Const. Amend. VIII;
Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir. 1999). The cruel-and-unusual-
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punishment standard applies to the conditions of a prisoner’s confinement.
Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004). Specifically, the
Eighth Amendment prohibits punishments “which are incompatible with the
evolving standards of decency that mark the progress of a maturing society,” or
“which involve the unnecessary and wanton infliction of pain.” Estelle v. Gamble,
429 U.S. 97, 102-103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). Pro se
complaints are held to “less stringent standards than formal pleadings drafted by
lawyers and can only be dismissed for failure to state a claim if it appears beyond a
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Id. at 106, S. Ct. at 292 (internal quotations omitted).
“Failure to permit conjugal visits does not deny an inmate a federal
constitutional right.” McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975).
“Visitation privileges are a matter subject to the discretion of prison officials.” Id.Moreover, the Supreme Court, has held that the prohibition of contact visits was
reasonably related to legitimate governmental objectives and that the Constitution
does not require a detention facility to allow contact visits when experienced jail
administrators determined, in their sound discretion, that such visits pose a security
threat to the facility. Block v. Rutherford, 468 U.S. 576, 589, 104 S. Ct. 3227,
3234, 82 L. Ed. 2d 438 (1984).
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Here, the district court did not err in dismissing Ortiz’s action for failure to
state a claim because his allegations fail to establish that he was denied a federal
right. An inmate does not have a constitutional right to conjugal visits.
Furthermore, an inmates’ federal rights are not violated by the denial or limitation
of contact visits when jail administrators determine that such visits pose security
risks. Accordingly, we affirm.
AFFIRMED.
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