United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
DONATO United States District Judge.
a state prisoner proceeding pro se, proceeds with a civil
rights action under 42 U.S.C. § 1983. On November 15,
2016, defendants filed a motion to dismiss for failure to
state a claim. Plaintiff was repeatedly informed that he
needed to file an opposition but only a filed a few sentence
response. The Court has still looked to the merits and the
motion is granted.
case proceeds pursuant to the amended complaint with respect
to plaintiff's claim that he was improperly classified as
a sex offender. He states that an “R” suffix,
which denotes an underlying sex related offense, was
improperly added to his custody designation.
Plaintiff‘s commitment offense involved an incident
where he was an accomplice while another defendant forced the
victim to perform sex acts and the other defendant assaulted
her. Plaintiff pled guilty to the assault, but the
sex-related charges were dismissed. At a Unit Classification
Committee (“UCC”) hearing, the UCC noted that
plaintiff had not participated in the sexual acts of the
commitment offense, but the UCC added the “R”
suffix because plaintiff had an opportunity to intercede in
the sexual assault but did not.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests for the legal sufficiency of the claims
alleged in the complaint. Ileto v. Glock,
Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). All
allegations of material fact are taken as true. Erickson
v. Pardus, 551 U.S. 89, 94 (2007). However, legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009) (courts are not bound
to accept as true “a legal conclusion couched as a
factual allegation”). “A plaintiff's
obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration in original) (internal
quotation marks omitted). Rather, the allegations in the
complaint “must be enough to raise a right to relief
above the speculative level.” Id.
motion to dismiss should be granted if the complaint does not
proffer enough facts to state a claim for relief that is
plausible on its face. See id. at 558-59, 574.
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged- but it has not ‘show[n]'-
‘that the pleader is entitled to relief.'”
Iqbal, 556 U.S. at 679 (citation omitted).
is limited to the contents of the complaint, see Clegg v.
Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
1994), including documents physically attached to the
complaint or documents the complaint necessarily relies on
and whose authenticity is not contested. See Lee v.
County of Los Angeles, 250 F.3d 668, 688 (9th Cir.
2001). In addition, the court may take judicial notice of
facts that are not subject to reasonable dispute. See
id. at 688 (discussing Fed.R.Evid. 201(b)).
Process Clause protects against the deprivation of liberty
without due process of law. Wilkinson v. Austin, 545
U.S. 209, 221 (2005). In order to invoke the protection of
the Due Process Clause, a plaintiff must first establish the
existence of a liberty interest for which the protection is
sought. Id. Liberty interests may arise from the Due
Process Clause itself, or from an expectation or interest
created by prison regulations. Id. The Due Process
Clause itself does not confer on inmates a liberty interest
in avoiding “more adverse conditions of
confinement.” Id. The existence of a liberty
interest created by prison regulations is determined by
focusing on the nature of the deprivation. Sandin v.
Conner, 515 U.S. 472, 481-84 (1995). Such liberty
interests are “generally limited to freedom from
restraint which . . . imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life.” Id. at 484 (interal citations
omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th
in conditions relating to classification and reclassification
do not implicate the Due Process Clause itself. See
Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.
1987) (citing Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976)) (no constitutional right to particular
classification). Yet, the classification of an inmate as a
sex offender may be the type of atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life that the Supreme Court held created a
protected liberty interest in Sandin. See Neal
v. Shimoda, 131 F.3d 818, 827-30 (9th Cir. 1997). While
such a liberty interest is not created merely by the
requirement that sex offenders participate in a specified
treatment program, see id. at 830, in Neal
the Ninth Circuit found that “the stigmatizing
consequences of the attachment of the ‘sex
offender' label coupled with the subjection of the
targeted inmate to a mandatory treatment program whose
successful completion is a precondition for parole
eligibility create the kind of deprivations of liberty that
require procedural protections, ” id. Under
these circumstances, inmates are entitled to procedural due
process before being classified as sex offenders. See
id. at 830-31 (inmates entitled to procedural
protections of Wolff v. McDonnell, 418 U.S. 539
(1974), including notice of reasons for classification as sex
offender and a hearing at which the inmate may call witnesses
and present documentary evidence in his defense).
amended complaint plaintiff argues that he has suffered an
atypical and significant hardship with respect to the sex
offender classification. He argues that he was not allowed
overnight visits to consummate his marriage and his ability
to acquire his bachelor degree was disrupted. Yet, prisoners
have no constitutional right to contact or conjugal
visitation. See Barnett v. Centoni, 31 F.3d 813, 817
(9th Cir. 1994); Toussaint v. McCarthy, 801 F.2d
1080, 1113-14 (9th Cir. 1986). Nor is California's
regulatory language regarding such visits sufficiently
mandatory to meet the standard set forth above in
Sandin. See Cal. Code Regs. tit. 15, §
3174(e) (any contact or conjugal visit is a “privilege,
” not a right). Nor do prisoners have a liberty
interest in prison education. Hernandez v. Johnston,
833 F.2d 1316, 1319 (9th Cir. 1987); see also Rizzo v.
Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (Due Process
clause does not create property interest in vocational
the Ninth Circuit found in Neal that the
stigmatizing consequences of the sex offender label combined
with mandatory treatment programs could affect parole
eligibility and, therefore, prisoners are entitled to
procedural due process protections, none of those factors are
present in this case. Plaintiff's allegations regarding
conjugal visits and disruptions to his education do not
demonstrate atypical and significant hardships or any other
liberty interest. To the extent that plaintiff argues
defendants violated prison regulations, this fails to state a
claim for a federal constitutional violation. Moreover, as
there was no liberty interest at issue, the Court need not
address the procedural protections that were allegedly denied
at the UCC hearing.
motion to dismiss is granted because plaintiff has failed to
allege a violation of the Due Process Clause itself, or from
an interest created by the prison regulations. Because
plaintiff has already been granted leave to amend and because
he failed to file a ...