The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed October 29, 2009 (Dkt. No. 9 ("Cmplt.").) On May 13, 2010, the previously assigned magistrate judge ruled that the complaint stated a cognizable claim for relief under section 1983 and arising under the Equal Protection Clause of the Fourteenth Amendment against defendant Mike Evans, then the warden at Folsom State Prison. (Dkt. No. 10.) By order issued October 19, 2010, defendant Rick Hill, the current warden at FSP, was substituted for defendant Evans under Federal Rule of Civil Procedure 25(d); however, the order instructed that defendant Evans would remain in the action "for any remaining claims against him in his individual capacity." (Dkt. No. 16.) \\\\
Pending before the court is defendants' March 8, 2010 motion to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 25 ("Mot.").) Plaintiff has filed an opposition to the motion, and defendants have filed a reply. (Dkt. Nos. 27-29.) For the reasons set forth below, the undersigned will recommend that defendants' motion to dismiss be granted.
Plaintiff, an inmate at Folsom State Prison, alleges that defendants are "denying [him] the right to participate in the [overnight] family visiting program, while inmates similarly situated are being granted an opportunity to participate in the program. Thus I am being treated differently and unfairly, which violates my right to equal protection under the Fourteenth Amendment." (Cmplt. at 3.) Plaintiff cites California Code of Regulations, Title 15 section 3177, which states in part:
Institution heads shall maintain family visiting policies and procedures. Family visits are extended overnight visits, provided for eligible inmates and their immediate family members, commensurate with institution security, space availability, and pursuant to these regulations. (Id.) Section 3177 further provides:
(b) (1) Family visits shall not be permitted for inmates convicted of a violent offense involving a minor or family member or any sex offense . . .
(A) Inmates may be prohibited from family visiting where substantial documented evidence or information of the misconduct described in section 3177(b)(1) exists, without a criminal conviction. . . .
(B) Family visiting shall be restricted as necessary to maintain order, the safety of persons, the security of the institution/facility, and required prison activities and operations[.]
Attachments to the amended complaint indicate that, in October 2006, plaintiff filed an administrative appeal while housed at the Sierra Conservation Center in Jamestown, California, in which he sought approval for overnight family visits. (Cmplt. at 4*fn1 .) In December 2006, a correctional counselor, M. Cooper, issued a first-level response to plaintiff's appeal that stated in part:
A review of your central file and case factors reflect the following: . . . [T]he [Classification] Committee temporarily denied family visiting privileges pending arrest report review for a January 10, 1997, arrest for PC 422, threatening crime with intent to terrorize and PC 243(E) battery on non-cohabitant former spouse, noting both counts were dismissed. [In September 2006], . . . the Committee reviewed arrest report information for aforementioned charges.
The report reflects that you slapped, choked and threatened to kill your ex-girlfriend. Based on this information Committee elected to continue denial of family visiting privileges.
(Cmplt. at 11.) Cooper's response cited CCR section 3177 (b)(1)(A), providing that inmates may be denied family visitation "where substantial documented evidence exists, without a criminal conviction," that the inmate committed a violent offense involving a minor or family member. (Id. (emphasis in Cooper's original).) The response also noted that the "personal ...