The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT [Dkt No. 12]
This 42 U.S.C. § 1983 prisoner civil rights matter is before the court on defendant Counselor Robles' ("Defendant") Motion To Dismiss plaintiff Christopher Stevens, Sr.'s ("Stevens") First Amended Complaint ("FAC") for failure to state a claim ("Motion"). Stevens is a state prisoner proceeding pro se with a 42 U.S.C. § 1983 civil rights action. He challenges denial of family visitations, and the fact and process of imposing an "R" suffix custody classification he alleges caused the deprivation of his family visitation rights, as infringing his Fourteenth Amendment liberty interests and Due Process rights. Stevens filed no opposition to the Motion. Under Civil Local Rules, failure to object to a Motion may be construed as consent to the granting of the motion. CIV. L. R. 7.1(f)(3)(c). Magistrate Judge Leo S. Papas entered a Report and Recommendation ("R&R") recommending Defendant's Motion be granted. Stevens filed no Objections to the R&R. For the reasons discussed below, the R&R is ADOPTED and the FAC is DISMISSED in its entirety for failure to state a claim.
Stevens alleges the state prison has wrongfully assigned an "R" suffix to his custody classification designating him a sex offender. He contends the "erroneous" placing of the "R" suffix violates his Fourteenth Amendment Due Process rights because it is predicated "on a[n] alleged police report not a[n] arrest or conviction for the said offense." FAC p. 3. The only liberty interest consequence he purports to elaborate in the FAC is elimination of family visitations. He identifies the visitation rights as those set forth in the "policies, procedures, and protocols" of the state's " 'Family Visitation' guidelines." FAC p. 3. Stevens acknowledges "there has to be a liberty int[e]rest created by state regulations" in order for due process requirements to attach to visitation deprivations. FAC p. 3, citing Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974). He argues deprivation of family visitation constitutes "a dramatic departure from the basic conditions [of prison confinement] which [sic] he was never ever arrested, charged, or convicted of a sex offense, that requires a "R suffix," warranting Fourteenth Amendment Due Process protections.*fn1 FAC p. 4.
Defendant construes the FAC as attempting to state two civil rights claims: wrongful denial of family visitations (construed as conjugal visits, applying a formal regulatory definition), and wrongful custody classification. Defendant contends neither theory implicates a protected liberty interest, so both fail to state a Section 1983 claim and must be dismissed. As to the first, "it is well-settled that prisoners have no constitutional rights while incarcerated to contact visits or conjugal visits." Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002), citing Kentucky Dep't of Corrs. v Thompson, 490 U.S. 454, 460, 461 (1989) ("[t]he denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, therefore is not independently protected by the Due Process Clause"); Hernandez v. Coughlin, 18 F.3d 133, 137 (2nd Cir. 1994) (neither the Constitution nor state law created any protected guarantee to conjugal visitation privileges while incarcerated). However, as noted in the R&R, Defendant too narrowly construes Stevens' "family visitation" allegations as referring only to conjugal visits. Mot. 1:13; 3:2, 21-28. The R&R found "unclear" whether Stevens intended to use the term in the conjugal visit context or in a "more colloquial application," properly opting for the broader reading. KarimPanahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). R&R p. 4 n.2, 6:7-9.
This court finds the claim must be construed from the face of the FAC as encompassing all family visitation. Not only does the liberal construction of pro se and civil rights pleadings obligation require the court to accept that broader inference, but also his express language mandates that reading.*fn2 However, this court does not concur with the statement in the R&R that Stevens does not claim "he is in anyway denied regular visiting privileges that are available to the general prison population." R&R 6:9-10. He alleges he is permitted no visitations from relatives, presumably contrary to privileges accorded the general prison population under the "Family Visitation" policies he cites. Nevertheless, to survive Rule 12(b)(6) dismissal, the FAC must substantiate a liberty interest in the visitation deprivation he alleges, absent which he can state no cognizable right to Due Process protections attendant on that consequence of the addition of an "R" suffix custody classification or otherwise.
1. Motions To Dismiss For Failure To State A Claim
A FED. R. CIV. P. ("Rule") 12(b)(6) motion to dismiss tests the sufficiency of the complaint. The Rule 12(b)(6) issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Scheuer v. Rhoades, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). Dismissal is warranted where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). A complaint may also be dismissed where it presents a cognizable legal theory, but fails to plead facts essential to the statement of a claim under that theory. Robertson, 749 F.2d at 534; see Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Leave to amend "shall be freely given when justice so requires." Rule 15(a); see DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (when a Rule 12(b)(6) motion is granted, leave to amend is ordinarily denied only when it is clear that the deficiencies of the complaint cannot be cured by amendment). In civil rights cases, courts must liberally construe the pleadings and resolve doubts in favor of the plaintiff, and "[a] pro se litigant must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Karim-Panahi, 839 F.2d at 623-24 (citation omitted); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations; . . . a plaintiff's obligation to provide "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . .
Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S.Ct. 1955, 1964 (May 21, 2007), quoting and abrogating Conley v. Gibson, 355 U.S. 41, 47 (1957).*fn3
In deciding Rule 12(b)(6) motions, the court assumes the truth of all factual allegations, including all reasonable inferences to be drawn from the facts alleged, and construes them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations, nor need the court accept as true conclusory allegations or unreasonable inferences. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). In construing the pleading, courts also may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of Univ. of ...