United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE OR TO AMEND
DAVID W. CHRISTEL, Magistrate Judge.
Plaintiff Tommie Slack, proceeding pro se and in forma pauperis, filed this civil rights Complaint pursuant to 42 U.S.C. § 1983. Having reviewed and screened Plaintiff's Complaint under 28 U.S.C. § 1915A, the Court declines to serve Plaintiff's Complaint but provides Plaintiff leave to file an amended pleading by July 11, 2015, to cure the deficiencies identified herein.
Plaintiff, who is currently incarcerated at Stafford Creak Corrections Center ("SCCC"), alleges Defendants employed at the Washington Corrections Center ("WCC") prohibited Plaintiff from having contact with his wife, despite a state court judge removing a "no contact order." Dkt. 6. Plaintiff maintains these Defendants violated his due process rights to have a hearing before being prohibited from seeing his wife. Id. Additionally, Defendants employed at SCCC allegedly denied Plaintiff phone communication with his wife and sanctioned him with a loss of visitation without a proper hearing. Id. at pp. 18-21. Plaintiff also asserts Defendants Bauer and Hallmark, who are probation officers, and the Department of Corrections ("DOC") forced Plaintiff "in to vagrancy by refusing housing when [P]laintiff could no longer afford" housing. Id. at p. 13. The DOC also allegedly violated Plaintiff's constitutional rights by not allowing him to serve his probation in Seattle, Washington. Id. at p. 14.
Under the Prison Litigation Reform Act of 1995, the 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 the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. at (b); 28 U.S.C. § 1915(e)(2); see Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998).
In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The first step in a § 1983 claim is therefore to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). To satisfy the second prong, a plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).
A. Due Process Violations
Plaintiff contends Defendants Elaine Farr, a unit counselor at WCC, John Doe, a custody unit supervisor at WCC, and Jane Does, counselors at WCC, violated Plaintiff's due process rights by prohibiting him from having contact with his wife, Rev. Ollie Slack, without a proper hearing. Dkt. 6, pp. 9-10. Plaintiff also alleges his due process rights were violated while he was housed at SCCC. Plaintiff maintains Defendant Amanda Thomas, a SCCC counselor, placed an institutional block on Plaintiff's telephone privileges. Dkt. 6, p. 18. Defendant Thomas refused Plaintiff's request to contact the Bellingham Probation Office to "achieve verification of the phone modification" allowing him to speak with Rev. Ollie Slack. Id. Plaintiff contends Defendant Thomas's actions constituted a sanction, and Plaintiff was not given a hearing or allowed to appeal the sanction. Id. at p. 19. The phone restriction was lifted and Plaintiff's wife was approved for visitation on February 25, 2015. Id. at p. 20. Plaintiff alleges he was sanctioned with loss of visitation on April 3, 2015 pursuant to DOC Policy 450.300(IV)(A)(2), and he did not receive proper notice of a hearing or receive a hearing regarding the imposition of the sanction. Id. at p. 21. Plaintiff's allegations essentially present Fourteenth Amendment claims.
The due process guarantees of the Fourteenth Amendment "apply only when a constitutionally protected liberty or property interest is at stake." Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993). In Sandin v. Connor, 515 U.S. 472 (2003), the Supreme Court makes it clear the "focus of the liberty interest inquiry is whether the challenged condition imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003). "A refusal to permit an inmate family visits does not impose an atypical and significant hardship; rather, an inmate's inability to visit with whom he wishes is an ordinary incident of prison life.'" Macedon v. California Dep't of Corrections, 67 Fed.Appx. 407, 408 (9th Cir. 2003) ( quoting Sandin, 515 U.S. at 485). The loss of telephone privileges also does not "present a dramatic departure from the basic conditions" of prison life. Mahon v. Prunty, 87 F.3d. 1320 (9th Cir. 1996) (internal quotations omitted); see Gallagher v. City of Winlock, Wash., 87 Fed.Appx. 568, 576 n. 7 (9th Cir. 2008).
As Plaintiff does not have a liberty interest in visitation and phone privileges, the alleged improper hearings regarding Plaintiff's visitation and phone privileges did not violate his constitutional rights. Accordingly, the Complaint does not state a violation of Plaintiff's due process rights. Plaintiff must show cause why this claim should not be dismissed.
B. Failure to Secure Housing
Plaintiff maintains Defendants Bauer and Hallmark, probation officers, and the DOC forced Plaintiff into "vagrancy" by refusing to provide Plaintiff with housing when he could no longer afford to live in motels. Dkt. 6, pp. 11-13. There is no constitutional right to housing. See Lindsey v. Normet, 405 U.S.56, 74 (1972). Thus, Plaintiff has not alleged a violation of his constitutional rights against Defendants Bauer, Hallmark, and the DOC for "forcing" Plaintiff into "vagrancy." Plaintiff has also not alleged how these Defendants' actions caused Plaintiff to become a vagrant. Plaintiff has therefore failed to state a claim under § 1983.
Further, § 1983 applies to the actions of "persons" acting under the color of state law. The DOC, as an arm of the state of Washington, is not a "person" for purposes of a § 1983 civil rights action. See Will v. Michigan Dep't. of State Police, 491 U.S. 58, 65, 71 (1989). Additionally, there is no evidence the state of Washington has waived its Eleventh Amendment ...