(PC) Lanear v. Macomber ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK LANEAR, No. 2:23-cv-2963 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JEFF MACOBMER, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF Nos. 2, 5, 8. Accordingly, the request to proceed in forma pauperis will be 22 granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 II. Statutory Screening of Prisoner Complaints 5 The court is required to screen complaints brought by prisoners seeking relief against “a 6 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 7 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 8 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 9 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 10 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 13 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 14 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 15 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 16 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 17 Franklin, 745 F.2d at 1227-28 (citations omitted). 18 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 19 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 20 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 21 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 22 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 23 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 24 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 25 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 26 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 27 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 28 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 1 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 3 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable for the 7 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 8 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 9 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 10 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 11 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 12 III. Complaint 13 The complaint1 alleges that defendant Macomber has violated plaintiff’s First and 14 Fourteenth Amendment rights by implementing section 3177(b)(1) of title 15 of the California 15 Code of Regulations,2 which disqualifies prisoners who have been convicted of sex offenses from 16 being eligible for overnight family visits. ECF No. 4 at 8-30. Plaintiff has requested and been 17 denied the ability to have a family overnight visit because he was previously convicted of a sex 18 offense. Id. Attachments to the complaint show that plaintiff was denied family visiting 19 privileges because he has a conviction for rape (Penal Code § 261). Id. at 198-99. He asserts that 20 the policy excluding sex offenders from having overnight family visits is discriminatory and has 21 no legitimate penological purpose. Id. at 8-30. 22 //// 23 24 1 The original complaint submitted by plaintiff did not contain any allegations and instead referenced an attachment that was not provided. ECF No. 1. Plaintiff subsequently submitted the 25 first amended complaint, which contained the missing attachment, along with an explanation that 26 he had been unable to provide the attachment through the e-filing program and was therefore required to mail a complete copy of his complaint to the court. ECF Nos. 4, 7. 27 2 Section 3177(b)(1) provides that “[f]amily visits shall not be permitted for inmates convicted of . . . any sex offense” and includes a nonexclusive list of applicable penal code sections, including 28 Penal Code § 261. 1 IV. Failure to State a Claim 2 A. Equal Protection 3 The complaint largely argues a violation of plaintiff’s rights under the Equal Protection 4 Clause, which requires the State to treat all similarly situated people equally. See City of 5 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “To state a claim for violation of the 6 Equal Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose 7 to discriminate against him based upon his membership in a protected class.” Serrano v. Francis, 8 345 F.3d 1071, 1082 (9th Cir. 2003) (citation omitted). Alternatively, plaintiff can show “that 9 [he] has been intentionally treated differently from others similarly situated and that there is no 10 rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 11 (2000). “Similarly situated” persons are those “who are in all relevant respects alike.” 12 Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citation omitted). “[A] classification neither 13 involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption 14 of validity” and “cannot run afoul of the Equal Protection Clause if there is a rational relationship 15 between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 16 509 U.S. 312, 319-20 (1993). 17 The Ninth Circuit has held that sex offenders do not constitute a suspect or protected 18 class. United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012) (“We have previously 19 rejected the argument that sex offenders are a suspect or protected class.” (citing United States v. 20 LeMay, 260 F.3d 1018, 1030-31 (9th Cir. 2001))). Moreover, “it is well-settled that prisoners 21 have no constitutional right while incarcerated to contact visits or conjugal visits,” Gerber v. 22 Hickman, 291 F.3d 617, 621 (9th Cir. 2002)) (citations omitted), and restrictions on contact visits, 23 including those based on a prisoner being convicted of a sex offense, have a rational basis. See 24 Block v. Rutherford, 468 U.S. 576, 586-88 (1984) (“That there is a valid, rational connection 25 between a ban on contact visits and internal security of a detention facility is too obvious to 26 warrant extended discussion.”); Shallowhorn v. Molina, 572 F. App’x 545, 547 (9th Cir. 2014) 27 (California had rational basis for promulgating Cal. Code Regs. tit. 15, § 3173.1(d), which 28 restricts visitation with minors for inmates convicted of specified sex offenses). Finally, plaintiff 1 does not allege that he is being treated differently from similarly situated inmates, he alleges that 2 he is being treated differently from inmates who have not committed sex offenses and who are 3 therefore not similarly situated. Because plaintiff cannot state an equal protection claim, the 4 claim should be dismissed. 5 B. Due Process 6 Liberty interests created by state law are “generally limited to freedom from restraint 7 which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary 8 incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). 9 But, as already addressed above, prisoners have no constitutional right to contact or conjugal 10 visits, Gerber, 291 F.3d at 621; Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (prisoners 11 have no constitutional right to contact visits), and “[t]he denial of prison access to a particular 12 visitor ‘is well within the terms of confinement ordinarily contemplated by a prison sentence,’” 13 Ky. Dep’t of Corr. V. Thompson, 490 U.S. 454, 461 (1989) (quoting Hewitt v.Helms, 459 U.S. 14 460, 468 (1983)). The denial of plaintiff’s request for overnight family visits therefore did not 15 violate his due process rights. 16 C. Freedom of Association 17 “An inmate does not retain rights inconsistent with proper incarceration.” Overton v. 18 Bazzetta, 539 U.S. 126, 131 (2003) (citations omitted). “[F]reedom of association is among the 19 rights least compatible with incarceration.” Id. (citations omitted). It is not necessary to 20 determine the extent to which freedom of association survives incarceration if the regulation at 21 issue bears a rational relationship to legitimate penological interests. Id. at 132-33 (“We need not 22 attempt to explore or define the asserted right of association at any length or determine the extent 23 to which it survives incarceration because the challenged regulations bear a rational relation to 24 legitimate penological interests.”). As addressed above, there is a rational basis for the regulation 25 making prisoners ineligible for family overnight visits if they have been convicted of a sex 26 offense and plaintiff therefore cannot state a claim for violation of his rights to free association. 27 D. No Leave to Amend 28 Leave to amend should be granted if it appears possible that the defects in the complaint 1 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 2 (9th Cir. 2000) (en banc). However, if, after careful consideration, it is clear that a complaint 3 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 4 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). 5 The undersigned finds that, as set forth above, the complaint fails to state a claim upon 6 which relief may be granted and that given the nature of the claims, amendment would be futile. 7 The complaint should therefore be dismissed without leave to amend. 8 E. Plain Language Summary of this Order for a Pro Se Litigant 9 Your request to proceed in forma pauperis is granted. That means you do not have to pay 10 the entire filing fee now. You will pay it over time, out of your trust account. 11 It is being recommended that your complaint be dismissed without leave to amend 12 because there is no constitutional right to family overnight visits and the denial of your request 13 because you were convicted of a sex offense is rationally related to legitimate government 14 interests. 15 CONCLUSION 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s requests for leave to proceed in forma pauperis (ECF Nos. 2, 5) are 18 GRANTED. 19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 20 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 21 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 22 appropriate agency filed concurrently herewith. 23 3. The Clerk of the Court shall randomly assign a United States District Judge to this 24 action. 25 IT IS FURTHER RECOMMENDED that the complaint be dismissed without leave to 26 amend for failure to state a claim. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 1 | after being served with these findings and recommendations, plaintiff may file written objections 2 || with the court. Such a document should be captioned “Objections to Magistrate Judges Findings 3 || and Recommendations.” Plaintiff advised that failure to file objections within the specified 4 | time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 5 | (th Cir. 1991). 6 | DATED: May 6, 2024 ~ Lhar—e_ 8 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28