Turner v. Barretto

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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. § 636(b)(1).

         I. Application to Proceed In Forma Pauperis

         Plaintiff 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 summarily dismissed.

         II. Statutory Screening of Prisoner Complaints

         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 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. § 1915A(b)(1), (2).

         A claim “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 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at 327.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 basis. Id.

         “Federal 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 § 1216 (3d ed. 2004)).

         “[A] 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).

         III. Complaint

         Plaintiff 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 infraction. Id.

         IV. Failure to State a Claim

         “In 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)).

         Plaintiff 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, ...