The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (ECF No. 1)
Plaintiff Curtis Epperson, Jr. is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is the complaint, filed July 15, 2010. (ECF No. 1.)
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is housed at Avenal State Prison ("ASP"). According to records from 1996, Plaintiff was denied visits from his ex-wife while he was housed at California Mens' Colony for threatening to kill his her and her children and attacking her with a hammer. Plaintiff is currently serving a thirteen year sentence following his entering into a plea agreement for Corporal Injury to Spouse and Criminal Threats. Plaintiff was arrested on October 15, 2005, for forcible rape, forcible oral copulation, and criminal threats. (Compl. 25,*fn1 ECF No. 1.)
On March 20, 2008, Plaintiff was advised that his ex-wife was denied visiting privileges at ASP based upon the restriction that was set in place following his conviction in 1996. Plaintiff filed an inmate appeal because he and his ex-wife have now reconciled and want to remarry while Plaintiff is in prison. Plaintiff brings this action against Defendants James D. Hartley, A. Guzman, and T. Emigh for Cruel and Unusual Punishment in violation of the Eighth and violations of the Due Process Clause and Equal Protection under the Fourteenth Amendments. Plaintiff alleges that he is being denied visits with his ex-wife in violation of California Code of Regulations, Title 15 Sections 3176.4(e),*fn2 3291(a),*fn3 and 3380(a),*fn4 and the DOM relating to visiting procedures.
Plaintiff alleges that Defendant Hartley should have knowledge because his staff at ASP review all inmate appeals. Defendants Hartley, Guzman and Emigh failed to enforce the visiting procedures. Plaintiff is seeking declaratory judgment, and punitive and compensatory damages.
For the reasons set forth below Plaintiff has failed to state a cognizable claim for relief. Plaintiff shall be given the opportunity to file an amended complaint curing the deficiencies described by the Court in this order. In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to his claims. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable.