United States District Court, E.D. California
ROBERT C. TURNER, Plaintiff
JENNIFER BARRETTO, , Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, seeks relief pursuant to
42 U.S.C. § 1983 and has requested appointment of
counsel and leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This proceeding was referred to this
court by Local Rule 302 pursuant to 28 U.S.C. §
Application to Proceed In Forma Pauperis
has requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis, though he has not submitted a
certified copy of his prison trust account statement for the
six-month period immediately preceding the filing of the
complaint. See 28 U.S.C. § 1915(a)(2). However,
the court will not assess a filing fee at this time. Instead,
the undersigned will recommend that the complaint be
Statutory Screening of Prisoner Complaints
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 fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief, ’ in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). However, in order to survive dismissal for
failure to state a claim, a complaint must contain more than
“a formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure Â§
1216 (3d ed. 2004)).
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976),
as well as construe the pleading in the light most favorable
to the plaintiff and resolve all doubts in the
plaintiff’s favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
alleges that defendants Barretto, Herndon, and Lewis violated
his Eighth and Fourteenth Amendment rights when they
suspended his visitation with Dolores Johnson, whom some of
the attachments identify as plaintiff’s fiancée.
ECF No. 1 at 3-4, 16, 39, 41. The complaint alleges that
prior to a visit with Ms. Johnson, plaintiff forgot to remove
two photographs from his wheelchair and visitation staff
mistakenly believed that Ms. Johnson had given plaintiff the
photographs during the visit to bring back into the prison.
Id. at 3-4. As a result, plaintiff’s
visitation with Ms. Johnson was suspended for six months even
though plaintiff was never charged with a disciplinary
Failure to State a Claim
the ordinary course, a litigant must assert his or her own
legal rights and interests, and cannot rest a claim to relief
on the legal rights or interests of third parties.”
Powers v. Ohio, 499 U.S. 400, 411 (1991) (citing
Dep’t of Labor v. Triplett, 494 U.S. 715, 720
(1990); Singleton v. Wulff, 428 U.S. 106 (1976)).
provides documentation that shows that Ms. Johnson was
notified that her visitation privileges had been
suspended and that she had the right to appeal the
suspension, which she did. ECF No. 1 at 7, 9-13. The
documents further show that after the period of suspension
expired, Ms. Johnson had to be reapproved to visit plaintiff.
Id. at 7, 21-22. The lack of disciplinary charges
against plaintiff also demonstrates that Ms. Johnson was the
one determined to have violated the rules, not plaintiff.
Id. at 3-4. In this instance, it is clear from both
the circumstances alleged in the complaint and the documents
plaintiff has attached to the complaint that it was Ms.
Johnson’s visitation privileges that were suspended,
not plaintiff’s visitation privileges. Id. at
3-4, 7, 21-22. Plaintiff does not have standing to challenge
the suspension of Ms. Johnson’s visitation privileges.
Mendoza v. Blodgett, 960 F.2d 1425, ...