White v. Pazin
| Decision Date | 19 October 2016 |
| Docket Number | 1:12-cv-00917-BAM (PC) |
| Parties | JAMES E. WHITE, Plaintiff, v. MARK N. PAZIN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO ACTION
FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART DEFENDANTS' 12(b)(6) MOTION TO DISMISS
Plaintiff James E. White ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On December 6, 2013, the Court dismissed Plaintiff's first amended complaint for failure to state a claim upon which relief may be granted under §1983. (ECF No. 13.) Judgment was entered accordingly. (ECF No. 14.) Plaintiff appealed the dismissal, (ECF No. 15), and the Ninth Circuit Court of Appeals vacated and remanded the case for further proceedings, finding the dismissal premature. (ECF No. 21).
The Ninth Circuit held that Plaintiff's allegations "that he could not see his children because the jail did not permit visitation by minors under age 12" when liberally construed, were "sufficient to warrant ordering [defendants] to file an answer." White v. Pazin, 587 F. App'x 366, 367 (9th Cir. 2014) (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1116, 1123 (9th Cir. 2012)). Consequently, this Court ordered Plaintiff's first amended complaint be served on the Defendants. As a result, this action currently proceeds on Plaintiff's first amended complaint against Defendants Pazin, Blake, Cavallero, Scott, Thoreson, Blodgett, and the Merced County Sheriff's Administration, for the denial of visitation with his minor children, in violation of the First, Fifth, Eighth and Fourteenth Amendments. (ECF No. 12.)
On June 23, 2015, Defendants filed a motion to dismiss Plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 30.) Plaintiff filed an opposition, (ECF No. 34), which he supplemented with a memorandum of points and authorities in support, (ECF No. 36).1 Defendants filed a reply to Plaintiff's opposition. (ECF No. 38). The motion is deemed submitted. Local Rule 230(l).
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999).
In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). Nevertheless, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). A claimupon which the court can grant relief must have facial plausibility. Id. 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff is currently a state prisoner housed at Ironwood State Prison in Blythe, California. At the time of the events alleged in the complaint, Plaintiff was detained in the Merced County Jail, following his arrest on March 12, 2007. Plaintiff was housed as a pre-trial detainee in the Merced County Jail from March 12, 2007 until September 1, 2011.
About five months following Plaintiff's arrest, he learned that he could not visit with his minor children under the age of 12 years. On May 20, 2008, Plaintiff's visitation rights were suspended due to a rules violation matter. On June 8, 2008, Plaintiff filed a grievance form questioning the removal of his visitation rights. On June 11, 2008, a sergeant confirmed that Plaintiff's visitation privileges should not have been suspended.
On January 26, 2009, Plaintiff received a court order from the Merced County Superior Court to receive visits from his minor children. The visit was never given, although it was possibly denied due to the rules violation issue. Plaintiff filed a grievance on July 20, 2010 regarding the denial of his visitation rights that went unanswered; it was not forwarded by the officer who received it. A writ regarding Plaintiff's complaint of violations of his due process rights, Fifth Amendment right to family support, and right not to be subjected to cruel and unusual punishments, was denied by the Superior Court of California, County of Merced, for the failure to exhaust administrative remedies.
On March 23, 2011, Plaintiff received a reply to one or more of his grievances, written by a non-party sergeant, stating that Plaintiff should seek a more-recent court order to see his children. On April 7, 2011, Plaintiff sent a grievance to Defendant Cavallero questioning the right of his minor children to visit and the policies being used to deny a detainee his right to be a father to his children. Plaintiff did not receive a reply to this grievance.
/// On April 11, 2011, Plaintiff received a second court order from the Merced County Superior Court to receive a visit from his minor children. Later, on May 11, 2011, Plaintiff received a memo from the desk of Defendant Pazin (authored by a Sergeant Lopez, a non-party) stating that the court order for visitation might not be adhered to because of a Merced County Jail rule that prohibited children under the age of 12. On May 12, 2011, Defendant Blodgett, Defendant Pazin, and Sergeant Lopez denied Plaintiff's minor children the visit authorized and ordered by the Merced County Superior Court. The stated reason for the denial was the safety and security of the institution and the safety of the children. The Merced County Jail does not allow contact visits of any kind and all visits are behind glass partitions.
Plaintiff claims a violation of the First, Fifth, Eighth and Fourteenth Amendments. Each Defendant is sued in their individual and official capacity. Plaintiff seeks declaratory and injunctive relief and damages.
Defendants argue that Plaintiff has not alleged sufficient facts to constitute a cognizable claim, because Supreme Court and Ninth Circuit precedent clearly established at the time of the events at issue that inmates do not enjoy an absolute right to receive visits while incarcerated, even from family members. Defendants further argue that the policy imposed in this case is reasonably related to legitimate penological interests, as Plaintiff pleaded that the purpose of the policy disallowing visits with children under 12 is for the safety and security of the institution and the children's safety. Thus, Plaintiff's First Amendment right of association claim must fail.
Defendants also argue that because Plaintiff was a pre-trial detainee at the time of the events at issue here, his claims are not analyzed under the Eighth Amendment, but arise from the Fourteenth Amendment. Defendants contend that Plaintiff's Fourteenth Amendment due process claim must fail because he has no protected liberty interest in visitations with his minor children. Regardless, Plaintiff also cannot meet the standards for an Eighth Amendment claim, since the visitation restrictions do not amount to "the denial of the minimal civilized measure of life's necessities." (ECF No. 30-1, p. 15 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).) Therefore, the imposition of the restriction is not cruel and unusual punishment.
Next, Defendants argue that the claims against the individual Defendants in their official capacities must be dismissed and the County of Merced be substituted, pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Also, Defendants argue that the individual Defendants sued in their individual capacities are entitled to qualified immunity, as Plaintiff has not alleged a constitutional violation, and there was no clearly established right to visits with children under 12 at the time of the events at issue. As to Defendant Merced County Sherriff's Department, erroneously sued as Merced County Sherriff's Administration, Defendants argue that this entity is not a "person" subject to suit under section 1983 as a matter of law. Thus, that Defendant must be dismissed.
Regarding the relief Plaintiff seeks, Defendants argue that Plaintiff's claim for injunctive relief is moot, since he is no longer housed at the Merced County Jail. Also, Defendants assert Plaintiff should not be granted leave to amend, because the defects in the first amended complaint cannot be cured.
Plaintiff opposes the motion to dismiss, and in the alternative, seeks leave to amend. In support, he argues that he states a claim for the violation of his First and Fourteenth Amendment rights, because the ban on child visitations alleged in his first amended complaint is an excessive response to the limited risks presented by such visitations. The ban causes a serious deprivation of an inmate's ability to maintain a relationship with his child, and it is in the interest of the state to promote the relationship between parent and child. Plaintiff further argues that a parent-child relationship is a fundamental right, and thus the loss of visitation rights as a pretrial detainee violates his rights. Plaintiff...
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