United States District Court, E.D. California
SCREENING ORDER DISMISSING COMPLAINT FOR THE FAILURE
TO STATE A COGNIZABLE CLAIM, WITH LEAVE TO AMEND (ECF NO.
Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE.
Warren Fredrickson (“Plaintiff”) is a state
prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff has consented to the jurisdiction of a United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
(ECF No. 5.)
complaint, filed on November 3, 2016, is currently before the
Court for screening. (ECF No. 1.)
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity and/or against
an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1),
(2); 28 U.S.C. § 1915(e)(2)(B)(ii).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a
plaintiff's allegations are taken as true, courts
“are not required to indulge unwarranted
inferences.” Doe I v. Wal-Mart Stores, Inc.,
572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
and citation omitted).
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (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, 129
S.Ct. at 1949 (quotation marks omitted); Moss v. United
States Secret Service, 572 F.3d 962, 969 (9th Cir.
2009). The sheer possibility that a defendant acted
unlawfully is not sufficient, and mere consistency with
liability falls short of satisfying the plausibility
standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(quotation marks omitted); Moss, 572 F.3d at 969.
is currently housed at the California Correctional
Institution in Tehachapi, California, where the events at
issue occurred. Plaintiff names the California Department of
Corrections and Rehabilitation (“CDCR”), and the
Director of CDCR Kathleen Allison as defendants.
Plaintiff's allegations are as follows:
complaint includes detailed allegations regarding his
criminal plea agreement, no contest plea to Penal Code
section 288(a), and an unsuccessful attempt to change his
plea. The Court notes that Plaintiff states that he does not
intend to bring this as a habeas action, and thus considers
these allegations to be providing background information
related to his civil rights claim in this case. (See
ECF No. 1, p. 9.) Specifically, Plaintiff claims that he has
been wrongfully denied family visitation as a result of his
conviction, as discussed further below.
allegations are not entirely clear, but it appears that he
claims that the denial of the family visitation privilege to
him violates his right to Due Process and Equal Protection
under state and federal law. Plaintiff contends that CDCR has
compromised his rights to family visitation under California
Code of Regulations Title 15 section 3177 and 3177(b)(1).
Plaintiff further contends that the “blanket
exclusion” of the privilege violates due process and
the sanctity of marriage. Plaintiff also alleges that the
visitation denial is not neutral because it is devoid of
individual scrutiny, and does not take into account any
case-by case factors. A committee action uses no discretion,
which suggests that a blanket policy exists, which wrongly
denies the sanctity of marriage. Plaintiff asserts that his
privilege exclusion is based solely on his conviction.
further alleges that the family visitation privilege would
only extend to Plaintiff's wife of over twenty (20)
years; no minors nor other persons. On this basis, the
regulation is not neutral. Plaintiff emphasizes that there
are no security issues, and the visitation would be between
two consenting adults. There is no fiscal expenditure to any
CDCR budget, let alone employee, because it would be
extending a policy/ privilege already in place to thousands
provides several examples of inmates who have gone through
the classification committee he references above. Plaintiff
asserts that each of these inmates are being denied
visitation on account of the nature of their convictions.
Furthermore, Plaintiff identifies factors that he contends
are not being properly considered by the classification
committee when determining whether they will be allowed
family visitations, such as victims who recanted or cases
that have been dismissed.
alleges that Defendant Allison has the power and authority to
correct the constitutional violation ...