United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE.
sued Defendants based on their denial of his parole. The
Court dismissed upon screening. The Court of Appeals affirmed
insofar as the claims were based on the denial of parole but
remanded for the Court to renter judgment on those claims
without prejudice (because the claims could potentially be
brought in habeas corpus) and to consider in the first
instance whether Plaintiff had stated a claim based on the
denial of contact with his wife, also a prisoner, but who had
received parole on the condition that she not associate with
Plaintiff. See Overton v. Bazzetta, 539 U.S. 126,
131 (2003); Bd. of Dirs. of Rotary Int'l v. Rotary
Club of Duarte, 481 U.S. 537, 545 (1987).
courts must screen any case in which a prisoner seeks redress
from a governmental entity or its officers or employees. 28
U.S.C. § 1915A(a). The court must identify cognizable
claims and dismiss claims that are frivolous, malicious, fail
to state a claim, or seek monetary relief from an immune
defendant. See 28 U.S.C. § 1915A(b). This
includes claims based on fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Also, when a prisoner seeks to proceed without prepayment of
fees, a court must dismiss if “the allegation of
poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A).
screening claims for failure to state a claim, a court uses
the same standards as under Rule 12(b)(6). Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Federal
Rule of Civil Procedure 8(a)(2) requires “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.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss
under Rule 12(b)(6) tests the complaint's sufficiency,
see N. Star Int'l v. Ariz. Corp. Comm'n, 720
F.2d 578, 581 (9th Cir. 1983), and dismissal is appropriate
only when the complaint does not give the defendant fair
notice of a legally cognizable claim and the grounds on which
it rests. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
treats factual allegations as true and construes them in the
light most favorable to the plaintiff, NL Indus., Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not
accept as true “legal conclusions . . . cast in the
form of factual allegations.” Paulsen v. CNF
Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A plaintiff
must plead facts pertaining to his case making a violation
“plausible, ” not just “possible.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) (“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.”). That is, a plaintiff must not only specify
or imply a cognizable legal theory (Conley review),
he must also allege the facts of his case so that the court
can determine whether he has any basis for relief under the
legal theory he has specified or implied, assuming the facts
are as he alleges (Twombly-Iqbal review).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Also, under Federal Rule of
Evidence 201, a court may take judicial notice of
“matters of public record” if not “subject
to reasonable dispute.” United States v. Corinthian
Colls., 655 F.3d 984, 999 (9th Cir. 2011). Otherwise, if
the district court considers materials outside of the
pleadings, the motion to dismiss is converted into a motion
for summary judgment. See Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege (1) violation of a right secured by the Constitution
or laws of the United States (2) by a person acting under
color of state law. See West v. Atkins, 487 U.S. 42,
alleges that his wife's parole officer has denied her
contact with him. As the Court of Appeals noted, there is a
First Amendment right of freedom of association that is not
entirely lost when incarcerated, Overton v.
Bazzetta, 539 U.S. 126, 131 (2003), and familial
relationships generally have enhanced protection in First
Amendment contexts, Bd. Of Dirs. of Rotary Int'l v.
Rotary Club of Duarte, 481 U.S. 537, 545 (1987). But
even assuming there was no justification for the denial-and
there likely was, i.e., the commonplace prohibition against
parolees associating with prisoners and/or known
felons-Plaintiff has no standing to assert a claim here.
See, e.g., Chambliss-Partee v. Knapp, No.
5:15-cv-435, 2015 WL 13019616, at *3 (N.D.N.Y. May 7, 2015)
(holding that a plaintiff had no standing to challenge her
husband's parole officer's denial of permission to
reside with her). Plaintiff's wife must bring such a
claim, if she wishes to. Plaintiff does not allege that he
has had any conditions restricting contact with his wife put
onto him for which he might be punished if he violates them.
The Court will give Plaintiff leave to amend to make such
allegations if he can.
is granted leave to file an amended complaint to cure the
deficiencies of the First Amendment claim. If Plaintiff
chooses to file an amended complaint he is advised that an
amended complaint supersedes (replaces) the original
Complaint and, thus, the amended complaint must be complete
in itself. See, e.g., Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th
Cir. 1989). Plaintiff must file the amended complaint on this
Court's approved prisoner civil rights form and it must
be entitled “First Amended Complaint.”
Court notes that if Plaintiff chooses to file an amended
complaint curing the deficiencies in the First Amendment
claim as outlined in this order, Plaintiff shall file it
within 28 days from the date of this Order. If Plaintiff
fails to timely file an amended complaint curing the ...