United States District Court, E.D. California
RICHARD E. GEORGE, Plaintiff,
M. VOONG, et al., Defendants.
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND FOR
FAILURE TO STATE A CLAIM (ECF NO. 1) ORDER THAT DISMISSAL IS
SUBJECT TO 28 U.S.C. § 1915(G)
Richard E. George is a state prisoner proceeding pro se and
in forma pauperis in this civil action pursuant to 42 U.S.C.
§ 1983. Currently before the Court is Plaintiff's
complaint, filed September 21, 2016. Plaintiff consented to
the jurisdiction of the magistrate judge on September 29,
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
is sentenced to life in prison without the possibility of
parole and is housed at North Kern State Prison. Plaintiff
brings this action challenging section 3177(b)(1)(B)(2) of
Title 15 of the California Code of Regulations which
prohibits inmates serving sentences for life without the
possibility of parole from participating in the Family Visit
Program. Cal. Code Regs. tit. 15, § 3177.
3177 provides for family visits which are extended overnight
visits provided for eligible inmates and their immediate
family members. However, [f]amily visiting is a
privilege” and is limited to only eligible
inmates. Cal. Code Regs. tit. 15, § 3177(b).
Specifically, section 3177 provides that family visits are
not permitted for inmates that are sentenced to life without
the possibility of parole. Cal. Code Regs. tit. 15, §
well settled that “[p]rison walls do not form a barrier
separating prison inmates from the protections of the
Constitution.” Turner v. Safley, 482 U.S. 78,
84 (1987). However, it has also long been recognized that
imprisonment also carries with it the constraint on or loss
of many significant rights. Hudson v. Palmer, 468
U.S. 517, 524 (1984); Price v. Johnston, 334 U.S.
266, 285 (1948); Pell v. Procunier, 417 U.S. 817,
822, (1974); Wolff v. McDonnell, 418 U.S. 539, 555
(1974). Prisoners are to be afforded those rights that are
“not fundamentally inconsistent with imprisonment
itself or incompatible with the objectives of
incarceration.” Hudson, 468 U.S. at 523. In
making this determination, the inquiry is two-fold. First,
the Court must consider if the right at issue is
fundamentally inconsistent with incarceration.
Turner, 482 U.S. at 94-96. If the right is
fundamentally inconsistent with incarceration the inquiry
ends because “[p]risoners cannot claim the protection
of those rights fundamentally inconsistent with their status
as prisoners.” Gerber v. Hickman, 291 F.3d
617, 620 (9th Cir. 2002). If the right is not fundamentally
inconsistent with incarceration, the Court then considers
whether the regulation abridging the right is reasonably
related to a legitimate penological interest.
Turner, 482 U.S. at 96-99.
Gerber v. Hickman, 291 F.3d 617, 619 (9th Cir.
2002), the Ninth Circuit addressed an inmate's challenge
to section 3177 arguing that it infringed upon his right
to procreate. By its very nature, incarceration removes an
inmate from society. Pell, 417 U.S. 822-23. During
incarceration, the right of intimate association is
necessarily abridged. Gerber, 291 F.3d at 621.
“Intimate association protects the kinds of
relationships ‘that attend the creation and sustenance
of a family-marriage, childbirth, the raising and education
of children, and cohabitation with one's relatives. . .
.' ” Id. (quoting Roberts v. United
States Jaycees, 468 U.S. 609, 618 (1984)). The Ninth
Circuit found that “most of the attributes of
marriage-cohabitation, physical intimacy, and bearing and
raising children-do not” survive incarceration.
Gerber, 291 F.3d at 621 (there is no due process or
Eighth Amendment right to conjugal or contact visits).
the regulation which Plaintiff is challenging does not
prohibit Plaintiff from visiting with his family, but does
not allow him to have extended overnight visits with his
family. It is well settled that prisoners have no rights to
contact or conjugal visits. Gerber, 291 F.3d at 621.
The right to overnight visits with your family members is
fundamentally inconsistent with incarceration. Therefore,
Plaintiff is unable to state a claim that section 3177
violates a fundamental right that he retains as a
prisoner. Jones v. Nichols, 639 F.
App'x 433, 434 (9th Cir. 2016) (“The district court
properly dismissed Jones's due process claim because
Jones failed to allege facts sufficient to show that he had a
constitutionally protected liberty interest in overnight
the Ninth Circuit held in Gerber, that inmates
sentenced to life sentences were not similarly situated to
other inmates and therefore, there is no equal protection