(PC) Ellis v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDOLPH ELLIS, No. 1:20-cv-00134-NONE-EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. § 1983 ACTION 14 RALPH DIAZ, at al. (Doc. No. 15) 15 Defendants. 16 17 Plaintiff Rudolph Ellis is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action filed under to 42 U.S.C. § 1983. Plaintiff brought this action against three 19 officers working for the California Department of Corrections and Judge Somers of the Kern 20 Superior Court, who denied petitioner’s state habeas petition. (Doc. No. 9 2–4.) In the operative 21 first amended complaint, plaintiff claims the defendant officers denied him visitation from family 22 members in violation of his First and Fourteenth Amendment rights, and that Kern County 23 Superior Court Judge Somers improperly denied his habeas petition asserting plaintiff’s claim 24 based on violation of his “visitation rights.” The matter was referred to a United States 25 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 26 On August 7, 2020, the assigned magistrate judge found that “prisoners have no 27 constitutional right while incarcerated to contact visits or conjugal visits,” Gerber v. Hickman, 28 291 F.3d 617, 621 (9th Cir. 2002), and that defendant Judge Somers was entitled to judicial 1 | immunity. (Doc. No. 15 at 5-9.) As a consequence, the magistrate judge recommended that this 2 | action be dismissed with prejudice for failure to state any cognizable claim. (/d. at 9.) On 3 | October 11, 2020, plaintiff timely filed his objections. (Doc. No. 20.) 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B), this court has conducted a 5 || de novo review of this case. The court notes that plaintiff’s objections fail to cite to any statutory 6 | or constitutional authorities to establish the so-called “visitation rights” that plaintiff seek to 7 | enforce under § 1983, see Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002) (“§ 1983 merely 8 || provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights 9 | independently ‘secured by the Constitution and laws” of the United States. ‘[O]ne cannot go into 10 | court and claim a ‘violation of § 1983’—for § 1983 by itself does not protect anyone against 11 | anything.’”). The court is also unpersuaded by plaintiffs arguments that the caselaw on which 12 || the magistrate judge relied is somehow inapplicable to his case. In sum, the court finds the 13 | pending findings and recommendations to be supported by the record and proper analysis and will 14 | adopt the findings and recommendations. 15 In light of the foregoing, the court orders as follows: 16 1. The findings and recommendations entered on August 7, 2020 (Doc. No. 15) are 17 ADOPTED in full; 18 2. This case is DISMISSED with prejudice for failure to state a claim upon which relief may 19 be granted; and 20 3. The clerk of court is DIRECTED to assign a district judge to this case for the purpose of 21 closing the case and then to close the case. 22 | IT IS SO ORDERED. me □ Dated: _ January 11, 2021 a aL, A 5 anys 24 UNITED STATES DISTRICT JUDGE 25 26 27 28