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United States District Court, Southern District of California

May 27, 1999


The opinion of the court was delivered by: Burns, U.S. Magistrate Judge.

  No. 11]

Pending before this Court is defendants Motion to Dismiss the Complaint against Rosie Garcia, O'Donnell, and J. Nettles under Federal Rule of Civil Procedure Rules 12(b), 12(b)(1), and 12(b)(6). [Doc. No. 11.]*fn1 Plaintiff in pro per, Frederick A. Cooper, did not file an Opposition to the motion. Moving parties did not request any oral argument. The matter was taken under submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). Upon careful consideration of the facts and the law and with good cause appearing, defendants' motion to dismiss is GRANTED; however, plaintiff shall be granted 60 days leave to amend his Eighth Amendment (Count 1) claim for relief only. All other claims for relief are DISMISSED as set forth below.


Plaintiff, an inmate at Centinela State Prison, has filed a pro se complaint seeking damages and injunctive relief pursuant to 42 U.S.C. § 1983 alleging two constitutional claims. First, plaintiff claims his Eighth Amendment right to be free from cruel and unusual punishment is being violated by defendants because prison officials have denied plaintiff family visitation privileges. Presumably, although it is far from clear, plaintiff claims he is being denied family visitation because the prison has classified him with an "R-suffix," signifying a history of sex offenses.*fn2 Plaintiff claims the denial of family visitation is inappropriate because he has never been convicted of a sex offense although he concedes he has been arrested for one. Second, plaintiff contends that his Fourteenth Amendment right to procedural due process was violated when prison officials decided to classify him as an "R" suffix prisoner without conducting an "individualized assessment" of his risk to others.

It appears from the complaint and its attachments that plaintiff has only exhausted his administrative remedies with respect to his procedural due process claim (Count 2). See Compl., Exhibits A & B. Although plaintiff attached a page to his "Director's Level" appeal mentioning the denial of family visits which presumably resulted from his "R" suffix, the gravamen of his administrative grievance is that he should never have been "R" classified in the first place. Plaintiff also attached a "Family Visitation Application" which was denied by prison officials on June 17, 1998, because plaintiffs "C-file indicates an offense that does not permit conjugal visits." Id. However, plaintiff has not provided any evidence that he filed a separate CDC 602 form related to the June 17, 1998, visitation denial. In fact, the CDC 602 form which has been exhausted was originally filed on April 30, 1998 — almost two months before plaintiffs request for a family visit was denied. In sum, it appears that plaintiff never administratively appealed his first claim for relief that the denial of family visits was cruel and unusual punishment in violation of the Eighth Amendment (Count 1); however, he has exhausted his procedural due process cause of action (Count 2).

Defendants maintain that because plaintiff failed to exhaust his administrative remedies as to the Eighth Amendment claim (as it relates to the denial of family visits) as required by 42 U.S.C. § 1997e(a), that the Court is without jurisdiction to hear any of plaintiffs claims. Defendants also allege that plaintiffs claims do not state a cause of action under 42 U.S.C. § 1983, that plaintiff has not demonstrated any injury, and that defendants are entitled to qualified immunity.


Defendants move to dismiss plaintiffs complaint under FED.R.CIV.P. 12 arguing that this Court lacks subject matter jurisdiction over his section 1983 claims because he has not exhausted available administrative remedies pursuant to 42 U.S.C. § 1997e(a). Mot. at 4-6. 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The civil rights statutes, including section 1983, do not independently create a basis of jurisdiction. Rather, separate jurisdictional counterparts exist in Title 28. See, e.g., 28 U.S.C. § 1343 (a)(3) (the jurisdictional counterpart to 42 U.S.C. § 1983, giving district courts original jurisdiction over civil actions to "redress the deprivation, under color of state law, . . . [of] any right, privilege or immunity secured by the Constitution of the United States"); id. § 1331 (conferring federal question jurisdiction). Section 1997e(a) does not explicitly state that the failure to exhaust divests the Court of the power conferred under sections 1343 and 1331 to hear and decide civil right cases filed by prisoners.

Although the Ninth Circuit has yet to decide whether failure to exhaust under the Prison Litigation Reform Act of 1995 ("PLRA") impliedly deprives the district court of subject matter jurisdiction, this Court relies on the Sixth Circuit opinion Wright v. Morris, 111 F.3d 414, 421 (6th Cir.), cert denied, ___ U.S. ___, 118 S.Ct. 263, 139 L.Ed.2d 190 (1997), and concludes that it does not. In Wright, the Sixth Circuit held that 42 U.S.C. § 1997e(a)'s exhaustion requirement was not jurisdictional for purposes of deciding whether the statute may be applied to cases pending at the time of enactment. Id. at 420. Wright distinguished section 1997e(a) from "jurisdictional" statutes — those that "'speak to the power of the court rather that to the rights or the obligations of the parties,'" id. (quoting Landgraf v. USI Film Products., 511 U.S. 244, 274, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)), and found that "[s]ection 1997e(a), in contrast, addresses a party's right to bring suit in court and does not speak in terms of jurisdiction or the power of the court; it is merely an exhaustion requirement." Wright 111 F.3d at 420.

Wright further rejected the argument that section 1997e(a)'s new exhaustion requirement could be construed as "jurisdictional" under Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Wright, 111 F.3d at 421-22. In Weinberger, the Supreme Court held specifically that a statute requiring administrative exhaustion may be classified as jurisdictional only if it is "more than a codified requirement of administrative exhaustion." Id. at 757, 95 S.Ct. 2457. The Court held that only "sweeping and direct" statutory language which "states that 'no' action shall be brought," "not merely that only those actions shall be brought in which administrative remedies have been exhausted," bars district court federal question jurisdiction over suits. Id.

Wright held that section 1997e(a) contains no "sweeping and direct language" barring district court jurisdiction over federal question suits brought pursuant to the Civil Rights Act; rather, it "indicates 'merely that only those actions shall be brought in which administrative remedies have been exhausted.'" Wright, 111 F.3d at 421 (quoting Weinberger, 422 U.S. at 757, 95 S.Ct. 2457).*fn3 Accordingly, any failure by the plaintiff to administratively exhaust his claims does not deprive this Court of subject matter jurisdiction over this case.


The PLRA, amended 42 U.S.C. § 1997e to provide that "no action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." See 42 U.S.C. § 1997e(a). Plaintiff, accordingly, must exhaust his federal claims by proceeding with a prison appeal all the way through the final Director's level of review. See Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D.Cal. 1997) (citing CAL.CODE REGS., tit. 15, § 3084.5).

It is clear from the complaint that plaintiff has exhausted his administrative remedies to the highest level with regard to his claim that the "R" suffix placed in plaintiffs prison records violates his right to procedural due process. See Compl., Exhibits A & B. Both the Second Level Response and the Director Level Decision of the California Department of Corrections considered plaintiffs request to remove the "R" suffix from his prison records, and determined that the Unit Classification Committee was justified in affixing an "R" suffix to plaintiffs file. Id.

It appears that defendants have erroneously relied on the notion that even if a prisoner has exhausted his administrative remedies to the California Department of Corrections "Director's Level" with respect to some claims, unless he has alleged full exhaustion of all of claims, then the entire action should be dismissed. See Mot. at 4. This erroneous argument appears to stem from habeas jurisprudence which requires complete exhaustion of state judicial remedies. "Mixed" habeas petitions, i.e., those including both exhausted and unexhausted claims, must be dismissed in their entirety. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Nothing in the language or legislative history of the PLRA's amendments to section 1997e(a) supports a "total" exhaustion requirement, and defendants have failed to explain how or why habeas law is or should be applicable in section 1983 litigation. "Post conviction relief [under 28 U.S.C. § 2254] and prisoner civil rights relief [under 42 U.S.C. § 1983] are analytically very different." Martin v. United States, 96 F.3d 853, 855 (7th Cir. 1996); see also Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) (finding that the PLRA's filing fee provisions are inapplicable to section 2254 or 2255 proceedings).

In addition, imposing a total exhaustion requirement would appear to contradict Congress' intent in enacting the PLRA. The clear import of the Prison Litigation Reform Act, Pub.L. No. 104-134, Title VIII, §§ 801-10, 110 Stat. 1321-66 to 1321-77 (1996), as reflected in its title, is to curtail meritless prisoner litigation. Congress intended to discourage "frivolous and abusive prison lawsuits," see H.R.Rep. No. 104-378, 104th Cong., 1st Sess. 166 (1995) (the prison litigation reforms are intended to "discourage frivolous and abusive prison lawsuits"); and to prevent convicted criminals from receiving "preferential treatment" to that of "average law-abiding citizens." 144 Cong.Rec. 575251 daily ed. May 25, 1995 (statement of Sen. Dole); Green v. Nottingham, 90 F.3d 415, 417 (10th Cir. 1996); Schagene v. United States, 37 Fed.Cl. 661, 661 (Fed.Cl. 1997). However, as a purely practical matter, if the Court were to construe section 1997e(a) as imposing a total exhaustion requirement and dismiss the entire action, the prisoner would merely need to file a new suit alleging only his exhausted claims. Thus, because total exhaustion "delays the resolution of claims that are not frivolous . . . and [] tends to increase, rather than alleviate, the caseload burden on . . . [the] federal court[]," Rose, 455 U.S. at 522-23, 102 S.Ct. 1198 (Blackmun, J., concurring), and the plain language of section 1997e(a) does not explicitly require it, this Court has found it in the interests of judicial economy to reach the merits of those section 1983 claims that have been exhausted and dismiss only those that are not.*fn4

Accordingly, because plaintiff has failed to administratively exhaust the allegations of his Eighth Amendment claim for relief (Count I), that claim is DISMISSED without prejudice. Plaintiff shall have 60 days leave to amend his Eighth Amendment claim for relief for the purpose of demonstrating that all available administrative remedies have been exhausted with respect to this claim.*fn5 Should plaintiff fail to satisfactorily amend his complaint within 60 days to cure this deficiency in a new complaint which is complete in itself, the Eighth Amendment claim shall be dismissed by this Court upon motion by defendants or sua sponte by this Court with prejudice and without further leave to amend.


Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992). In giving liberal interpretation to a pro se civil rights complaint, the court may not "supply essential elements of [a] claim that w[as] not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. The court need not accept conclusory allegations in the complaint as true; rather, the court must "examine whether [they] follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted). Where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).

Under 42 U.S.C. § 1983, a plaintiff has a cause of action against anyone who under color of state law deprives the plaintiff of a constitutional right. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Plaintiff contends that defendants violated his constitutional right to due process under the Fourteenth Amendment when they failed to provide him an "individualized assessment of security risks" in deciding to assign him an "R" suffix. Plaintiff contends that the "R" suffix is improper in his case because he was never convicted of a sex offense (i.e., the district attorney never prosecuted the case due to insufficient evidence) and the alleged rape victim lied in giving her statement to the police. Defendants, reading the complaint narrowly, contend that plaintiffs claim is simply that he wants the "R" suffix removed from his file because it is stigmatizing or slanderous; in which case, plaintiff fails to allege the denial of any "life, liberty, or property interest." Defendants also maintain that "the 'R' suffix classification does not result in any restrictions against the inmate." Mot. at 12.

However, construing plaintiffs complaint liberally, as this Court must do in a civil rights case filed by a pro se plaintiff (see Karim-Panahi, supra, and Ferdik, supra) it appears that plaintiffs complaint, which incorporates the administrative appeal and attachments, contends that the "R" suffix served as the basis for defendants' decision to deny plaintiff "family visitation" at the prison; in which case, the "R" suffix classification did result in a "restriction" against the inmate. Accordingly, plaintiff appears to allege that the "R" suffix affects his "liberty" interest in visiting his wife and children.*fn6 Should plaintiff prevail on his claim that he has been deprived of a liberty interest, defendants allege that plaintiff received all the process he was due by virtue of having received "an individualized assessment in two separate classification committee hearings at which he was present," thus, he was not denied "due process." Mot. at 9, citing to Ex. to Compl. at 3. Defendants contend that plaintiff received due process by virtue of two classification committee hearings, the first on August 1, 1996, and another on April 28, 1998, when he returned to prison for violating parole.

To plead a procedural due process violation, a plaintiff must allege: (1) a life, liberty or property interest exists and has been subject to an interference by the state; and (2) the procedures attendant upon the deprivation of an existing interest were constitutionally insufficient. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In addition to liberty interests which arise directly from the Due Process Clause of the Fourteenth Amendment to the Constitution,*fn7 courts have long recognized that state prison regulations may give rise to liberty interests that are protected by the Fourteenth Amendment. See Meachum v. Fano, 427 U.S. 215, 223-227, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (inmate had an unjustifiable expectation to be free from transfer as long as no misbehavior on file; no liberty interest to be free from transfers from one prison to another notwithstanding no misbehavior); Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (state-created right to good time credits, which could be forfeited only for serious misbehavior, constituted liberty interest).

Traditionally, the Due Process Clause has been particularly protective of the minimal liberty interests granted to prisoners. In Wolff the prison inmate argued that Nebraska granted him a liberty interest in good time credits that by statute could not be taken away except in specific instances. The Supreme Court agreed stating:

  But the State having created the right to good time
  and itself recognizing that its deprivation is a
  sanction authorized for major misconduct, the
  prisoner's interest has real substance and is
  sufficiently embraced within Fourteenth Amendment
  'liberty' to entitled him to those minimum procedures
  appropriate under the circumstances and required by
  the Due Process Clause to insure that the
  state-created right is not arbitrarily abrogated.

Wolff 418 U.S. at 557, 94 S.Ct. 2963 (internal citation omitted).

Following Wolff many lower courts have found protected liberty interests of prisoners in state statutes and regulations. See e.g., Allen v. Board of Pardons, 792 F.2d 1404, 1408 (9th Cir. 1986) (finding the Montana statute created liberty interest in parole); McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986) (holding that Arizona statute created liberty interest in good time credits). Such liberty interests cannot be eviscerated, absent penal authorities meeting specific substantive preconditions. Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). In Helms, the Court noted that the adoption of procedural guidelines alone would not implicate the Fourteenth Amendment, but the "repeated use of explicitly mandatory language in connection with requiring" that specific preconditions be met before removing a prisoner from the general population "demands a conclusion that the State has created a protected liberty interest." Id. at 472, 103 S.Ct. 864. The Ninth Circuit has likewise used the mandatory language test to determine that state statutes or regulations have created a liberty interest within the meaning of the Fourteenth Amendment. See Mendoza v. Blodgett, 960 F.2d 1425 (9th Cir. 1992) (as amended), cert. denied, 506 U.S. 1071, 113 S.Ct. 1027, 122 L.Ed.2d 173 (1993) (state regulation that provided prisoner could "be placed on Feces Watch only upon determination that there is a reasonable suspicion that [the prisoner] is currently secreting contraband" created a liberty interest within the meaning of the Fourteenth Amendment; the regulation contained particularized standards and criteria, and used "explicitly mandatory" language). Id. at 1429 (internal citation omitted).

Recently, however, the Supreme Court altered the relevant test. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Court reconsidered the question of under what circumstances a state statute grants prisoners a liberty interest recognized by the Due Process Clause. The Court began its analysis by criticizing the practice of examining the language in state statutes and regulations to determine whether a liberty interest was created. This practice, according to the Court, "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges." Sandin, 515 U.S. at 481, 115 S.Ct. 2293. The Court expressed two policy concerns with this approach: first, it "creates disincentives for States to codify prison management procedures in the interest of uniform treatment," id.; second, it also "has led to the involvement of federal courts in the day-to-day management of prisons," contrary to cases affording state officials appropriate deference and flexibility in prison management. Id.

The Sandin Court held that states may still create liberty interests that afford prisoners due process protections, but explained:

  These interests will be generally limited to freedom
  from restraint which, while not exceeding the sentence
  in such an unexpected manner as to give rise to
  protection by the Due Process Clause of its own force
  . . ., nonetheless imposes atypical and significant
  hardship on the inmate in relation to the ordinary
  incidents of prison life.

Id. at 482, 115 S.Ct. 2293 (internal citations omitted).

In Sandin, the prisoner claimed that Hawaii prison regulations created a liberty interest in remaining free from disciplinary segregation. Applying this new standard to the situation in Sandin, the Court concluded that disciplining a prisoner for thirty days in segregated confinement "did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at 486, 115 S.Ct. 2293.

A. Family Visitation

Under Sandin, Cooper lacks a constitutionally-derived*fn8 or a state-created liberty interest in California's "Family Visitation Program" because such a program is not an "ordinary incident of prison life." 515 U.S. at 482, 115 S.Ct. 2293. In fact, according to Title 15 CAL.CODE REGS. § 3174, "Family visiting is a privilege" which has many limitations, for example, eligibility is "limited by the assignment of the inmate to a work/training incentive group as outlined in section 3044." Further, family visits are not permitted "for inmates convicted of a violent offense involving a minor or family member or any sex offense, which includes but is not limited to the following Penal Code Sections: 187 (when the victim is a family member or minor); 192 (when the victim is a family member or minor); 261; 261.5; 262, 264.1; 266c; 266j; 273a; 273d; 273.5; 273.6; 285; 286; 288; 288a; 288.2; 288.5; 289; 289.5; 311.1; 311.2; 311.3; 311.4; 313.1; 314; or 647.6." Id. (emphasis added). Neither are visits permitted for inmates who are in any of the following categories: "sentenced to life without the possibility of parole; sentenced to life, without a parole date established by the Board of Prison Terms; designated Close A or Close B custody; designated a condemned inmate; assigned to a reception center; assigned to an administrative segregation unit; assigned to a security housing unit; designated 'C' status; guilty of one or more Division A or Division B offenses within the last twelve months; or guilty of narcotics trafficking while incarcerated in a state prison."

Even if this Court were to apply the Helms test's "mandatory language" to the facts of this case, it is clear that California regulations state that family visitation is a privilege. CAL.CODE REGS. tit. 15, § 3174(e). While the regulations direct prison officials to extend family visiting to "as many inmates as is possible commensurate with institution security," id. § 3174, the regulations do not specify the relevant criteria to use in deciding which prisoners should be granted family visitation privileges. The California regulations thus do not mandate particular outcomes based on substantive predicates as required to create a state liberty interest protected by the Fourteenth Amendment. See Thompson, 490 U.S. at 463, 109 S.Ct. 1904.

Although the Ninth Circuit has never squarely addressed whether the deprivation of family visitation privileges implicates a "liberty interest" subject to the Due Process Clause of the Fourteenth Amendment, the Ninth Circuit has held, in the context of an Eighth Amendment claim, that the denial of family visitation privileges does not constitute cruel and unusual punishment. See Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir. 1986) (citing Ramos v. Lamm, 639 F.2d 559, 580 n. 26 (10th Cir. 1980) ("weight of present authority clearly establishes that there is no constitutional right to contact visitation. . . We agree with this view."), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Lynott v. Henderson, 610 F.2d 340, 342 (5th Cir. 1980) ("convicted prisoners have no absolute constitutional right to visitation"); Feeley v. Sampson, 570 F.2d 364, 372-73 (1st Cir. 1978) ("we can discover no constitutional guarantee that [contact visits] may take place."); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) ("[prisoner] has no constitutional right to physical contact with his family."); Smith v. Coughlin, 748 F.2d 783, 788 (2d Cir. 1984) (contact visits with persons other than priest, lawyer, and doctor could disrupt prison administration, create security risks, and allow smuggling of contraband; denial of contact visits did not violate prisoners' first amendment rights); O'Bryan v. County of Saginaw, 741 F.2d 283, 284-85 (6th Cir. 1984) (denial of contact visits for pretrial detainees did not violate constitution); and Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 758-60 (3d Cir. 1979) (ban on contact visits does not violate due process rights of prisoners)).

Other courts have similarly held that a prisoner has no liberty interest in unfettered visitations. In Torricellas v. Poole, 954 F, Supp. 1405 (C.D.Cal. 1997), the court held that the loss of one conjugal visit did not deprive the inmate of a liberty interest. Id. at 1414. In so ruling, the court noted that the prisoner had not been subjected to any discipline nor deprived of any good time credits. The court reasoned as follows:

  It is clear that an inmate has no due process right
  under the Fourteenth Amendment to the Constitution to
  unrestricted visitations. Kentucky Dep't of
  Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct.
  1904, 104 L.Ed.2d 506; Keenan v. Hall, 83 F.3d 1083,
  1092 (9th Cir. 1996); Barnett v. Centoni, 31 F.3d 813,
  817 (9th Cir. 1994); Toussaint v. McCarthy, 801 F.2d 1080,
  1113-14 (9th Cir. 1986), cert. denied, 481 U.S. 1069,
  107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). Any due process
  right plaintiff has must, thus, be a state-created
  liberty interest. Since Sandin, a state created
  liberty interest exists only when the loss is an
  'atypical' sanction, which imposes 'significant
  hardship on the inmate in relation to the ordinary
  incidents of prison life.' Sandin, 115 S.Ct. at 2300.

  In California, state regulations provide that prison
  officials can significantly restrict an inmate's
  visitations. See CAL.CODE REGS. tit. 15, §§
  3170-3174. Given the highly regulated and restricted
  nature of prison visitations, the loss of one conjugal
  visit can hardly be considered the type of 'atypical'
  and 'significant' restriction which implicates a
  protected liberty interest. Sandin, 115 S.Ct. at
  2300; see also Kentucky, 490 U.S. at 464, 109 S.Ct.
  1904 ("overall effect of the [visitation] regulation
  is not such that an inmate can reasonably form an
  objective expectation that a visit would necessarily
  be allowed absent the occurrence of one of the listed
  conditions"). The plaintiff, thus, did not have a
  protected liberty interest in her canceled conjugal

Torricellas, 954 F. Supp. at 1414.

The Second Circuit has held that a district court's dismissal of the prisoner's due process claim "was proper because the [New York] state regulations permitting correctional facilities to allow conjugal visits to prisoners did not give [the plaintiff] a liberty interest in such visits." Champion v. Artuz, 76 F.3d 483 (2d Cir. 1996) (citing Hernandez v. Coughlin, 18 F.3d 133, 136-38 (2d Cir.), cert. denied, 513 U.S. 836, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994); and Sandin, supra). See also Giano v. Goord, 9 F. Supp.2d 235, 241 (W.D.N.Y. 1998) (liberty interests were not implicated by suspension of family reunion program visits; "contact visits are a privilege for inmates, not a right" (citing Block v. Rutherford, 468 U.S. 576, 589, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) ("the Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility")); and Wright v. Coughlin, 31 F. Supp.2d 301, 316 (W.D.N.Y. 1998) (claim asserting atypicality on the basis of denial of conjugal visits is "insufficient on its face, as inmates do not have a protected liberty interest in receiving conjugal visits").

Although this Court finds that plaintiff has not been deprived of a liberty interest by the state's classification system, the Court is nevertheless sympathetic to plaintiffs plight. Because plaintiff has never been convicted of a sex offense, it seems unreasonable for the state prison officials to classify him as a sex offender and deny him family visits.*fn9 But federal courts are not authorized by law to second-guess the policies of prison administrators in a general sense. Rather, the limited question for this Court is whether plaintiff has a liberty interest in having physical contact with his family, such that under the Fourteenth Amendment he was entitled to due process of law before that privilege could be revoked. This Court is constrained to find that the threshold test articulated in Sandin precludes finding a liberty interest and bars the relief plaintiff seeks.

As in Sandin, the state's action here did not in any way affect the duration of plaintiffs state sentence. Additionally, by plaintiffs own admission,*fn10 the deprivation of family visits subjects him to conditions no different from those ordinarily experienced by large numbers of other inmates serving their sentences in customary fashion.

B. Sex Offender Classification

The Ninth Circuit has stated that the "classification of an inmate as a sex offender is precisely the type of 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life' that the Supreme Court held created a protected liberty interest." Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (citing Sandin, 515 U.S. at 482, 115 S.Ct. 2293). Neal involved the classification of a prisoner as a sex offender coupled with mandatory participation in Hawaii's Sex Offender Treatment Program ("SOTP"), the successful completion of which was a precondition to parole eligibility (the latter reflecting a clear liberty interest because it affected the prisoner's release date). Although the Neal court acknowledged that the due process analysis set forth in Thompson, supra, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) had likely been disapproved by the Sandin Court's new test, i.e., the court should determine whether there has been an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," the Neal court seems to have applied a hybrid Sandin-Vitek-Thompson test.

First, relying upon Sandin, the Neal court stated that due to its stigmatizing effects, a sex offender classification "is precisely the type of 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life that the Supreme Court held created a protected liberty interest.'" Neal, 131 F.3d at 829. Although this statement standing alone seems to indicate that a mere "sex offender" classification, with nothing more, creates a liberty interest, the court's discussion throughout the remainder of the opinion indicates that more of a deprivation must be present to effect a prisoner's liberty interests. The court reasoned that because Hawaii's "regulations render the inmate completely ineligible for parole if the [SOTP] is not satisfactorily completed, the attachment of the 'sex offender' label to the targeted inmate has a practical and inevitable coercive effect on the inmate's conduct." Id. (emphasis added). The Neal court concluded that the "coercive component" of the SOTP was "functionally equivalent to the psychiatric treatment required by the statute at issue in Vitek that followed inexorably from the inmate being labeled as mentally ill." Id. In Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), the Court found the prisoner plaintiffs liberty interest was affected by virtue of him being classified as mentally ill which mandated that he be transferred to a mental hospital for involuntary psychiatric treatment (mandatory behavior modification).

Turning first to the Supreme Court's pre-Sandin test, as articulated in Thompson, supra, the Neal court stated: "We will discuss this approach, however, because our conclusion is sound under this analysis as well." Thompson stated:

  We have also articulated a requirement, implicit in
  our earlier decisions, that the regulations contain
  "explicitly mandatory language," i.e., specific
  directives to the decision-maker that if the
  regulations' substantive predicates are present, a
  particular outcome must follow, in order to create a
  liberty interest. . . . In sum, the use of "explicitly
  mandatory language," in connection with the
  establishment of "specified substantive predicates" to
  limit discretion, forces a conclusion that the State
  has created a liberty interest.

Neal, 131 F.3d at 829.

The Neal court then reasoned:

  In this case, the substantive predicate is the
  labeling of the targeted inmate as a sex offender.
  Once that is done, it is mandatory [under Hawaii's Sex
  Offender Treatment Program ("SOTP")] that the labeled
  inmate successfully complete the specified treatment
  program in order to become eligible for parole. There
  is no room for prison officials' discretion once an
  inmate has been labeled a sex offender.

    The liberty interest implicated by the establishment
  of the SOTP is not merely the requirement that sex
  offenders complete the specified treatment program. If
  that were all that was at stake, we could probably not
  say that

  a liberty interest had been created, given the fact
  that prisons frequently maintain treatment and
  behavioral modification programs (such as anger
  management or alcohol abuse classes) that have long
  withstood legal challenge. The liberty interest at
  stake in this case is similar in form and scope to the
  interest at stake in Vitek; the stigmatizing
  consequences of the attachment of the "sex offender"
  label coupled with the subjection of the targeted
  inmate to a mandatory treatment program whose
  successful completion is a precondition for parole
  eligibility create the kind of deprivations of liberty
  that require procedural protections. Inmates like Neal
  and Martinez are entitled to the benefits of these
  procedures before being labeled as sex offenders and
  subjected to the requirements of the SOTP.

Id. at 830.

Based on statements by the courts in Vitek and Neal, the liberty at interest at stake must be more than a mere "sex offender" classification or a "mental illness" classification. Rather, that classification must also be "coupled with" some mandatory, coercive treatment which affects a liberty interest, such as parole release as in Neal, or a physical transfer to a mental hospital for involuntary confinement as in Vitek. See also Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (involuntary administration of psychotropic drugs). In this case, however, the sex offender classification is coupled with the denial of family visitation "privileges," the latter not rising to a liberty interest, as discussed supra in Part IV.A. Accordingly, because plaintiff has not been denied a liberty interest, Count 2 of the complaint alleging violation of plaintiffs Fourteenth Amendment right to procedural due process is DISMISSED with prejudice and without leave to amend.*fn11

Because the Court has dismissed all claims as discussed above, the Court need not address defendants' other arguments that plaintiff has not demonstrated any injury and that defendants are entitled to qualified immunity.


After a thorough review of the record in this matter, and based on the forgoing analysis, IT IS HEREBY ORDERED THAT:

1. Count 1 of plaintiffs complaint alleging violation of his Eighth Amendment right to be free of cruel and unusual punishment is DISMISSED without prejudice for failure to exhaust administrative remedies. Plaintiff is granted 60 days leave to amend his complaint from the date of this Order. The amended complaint must be complete in itself and must demonstrate compliance with the exhaustion precondition to filing a lawsuit. Should plaintiff fail to satisfactorily amend his complaint to cure this deficiency within 60 days, the complaint shall be dismissed either upon motion by defendants or sua sponte by the Court with prejudice and without further leave to amend.

2. Count 2 of plaintiffs complaint alleging violation of his Fourteenth Amendment right to procedural due process is DISMISSED with prejudice and without leave to amend for failure to state a claim under 42 U.S.C. § 1983.

3. Plaintiffs conclusory claims for relief against defendants for violation of: "separation of powers" doctrine, "ex post facto" laws, right to "equal protection," the "single subject" rule, and right to privacy are DISMISSED with prejudice for failure to state a claim under 28 U.S.C. § 1915 (e)(2).

4. Given that the Court has dismissed all claims over which it has original jurisdiction, plaintiffs pendant state law claim for slander is DISMISSED without prejudice under 28 U.S.C. § 1367 (c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). However, should plaintiff successfully amend his federal constitutional claim for violation of the Eighth Amendment under 42 U.S.C. § 1983, as delineated in this Order, and should he properly exhausted his slander claim, then the Court will reconsider exercising supplemental jurisdiction over this pendant state law claim.

5. On May 13, 1999, defendants Nichols, Ruiz, and Melching filed a "Motion to Dismiss Complaint" which identical to the subject motion to dismiss. Because the facts, issues, and arguments raised by these defendants are identical to the issues addressed in this Order, the Motion to Dismiss [Doc. No. 16] filed by defendants Nichols, Ruiz, and Melching is GRANTED to the same extent as set forth in Paragraphs 1-4 of this Order. Accordingly, the June 30, 1999 hearing date on that motion is VACATED.

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