Opinion
CAUSE NO. 3:10-CV-41.
March 22, 2010
OPINION AND ORDER
This matter is before the Court sua sponte, pursuant to 28 U.S.C. Section 1915A. For the reasons set forth below, the Court DENIES Plaintiff leave to proceed against Defendant and ORDERS the clerk to DISMISS the complaint pursuant to 28 U.S.C. § 1915A(b)(1).
BACKGROUND
DISCUSSION
42 U.S.C. § 1983 28 U.S.C. § 1915A 28 U.S.C. § 1915A 12See Lagerstrom v. Kingston,463 F.3d 621624
A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). To survive a motion to dismiss:
[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
. . . only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where 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 shown — that the pleader is entitled to relief.
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50; 173 L. Ed. 2d 868, 884 (2009) (quotation marks and citations omitted).
According to the complaint, prison officials charged McKinnon with a violation of the Indiana Department of Correction rules. A disciplinary hearing board ("DHB") found McKinnon guilty of those charges and sanctioned him with a loss of earned credit time and a demotion to a lower credit time earning classification. (DE #1, p. 3.) After the DHB found McKinnon guilty, ISP officials, in a separate administrative action, modified his visiting privileges by taking away his contact visitation. ( Id.) McKinnon alleges that the subsequent imposition of restrictions on his contact visitation privileges "violated the Petitioner's `due process' and double jeopardy rights, both protected under the United States and Indiana State Constitution." ( Id.)
McKinnon brings this action under 42 U.S.C. § 1983, which provides a cause of action to redress the violation of federally secured rights by a person acting under color of state law. See Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004). To state a claim under § 1983, a plaintiff must allege the violation of rights secured by the Constitution and laws of the United States, and must show that a person acting under color of state law committed the alleged deprivation. See West v. Atkins, 487 U.S. 42 (1988). The first inquiry in every § 1983 case is whether the plaintiff has been deprived of a right secured by the Constitution or laws of the United States. See Baker v. McCollan, 443 U.S. 137, 140 (1979). There is no right to visitation secured by the Constitution or laws of the United States. Consequently, McKinnon's claim that the restrictions on his contact visitation violated provisions of the Indiana constitution states no claim upon which relief can be granted under § 1983.
McKinnon also alleges that the imposition of restrictions on his contact visitation in a second action, following the initial prison disciplinary proceeding, violated the Fifth Amendment's double jeopardy clause. The double jeopardy clause, applicable to the states by the Fourteenth Amendment, protects against a second prosecution for the same offense and multiple punishments for the same offense, but its scope is limited to criminal prosecutions. See Middleton v. Jones, 421 U.S. 519 (1975). Prison discipline does not constitute "prosecution" for double jeopardy purposes, even if it delays release from incarceration by depriving the prisoner of good time. See Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir. 1994). Accordingly, being subjected to a disciplinary action and then being deprived of contact visitation in a subsequent administrative action does not violate the Constitution's double jeopardy clause.
Finally, McKinnon asserts that the restriction on his contact visitation in an administrative action under an IDOC policy without proof that he violated a rule while he was in the visiting area denied him due process of law. The Fourteenth Amendment's due process clause, however, does not protect against every change in the conditions of confinement having a substantial adverse impact on a prisoner. See Sandin v. Conner, 515 U.S. 472, 484 (1995). A convicted prisoner is entitled to due process only when the conditions imposed work an atypical and significant hardship on him in relation to the ordinary incidents of prison life or where the discipline imposed infringed on rights protected by the due process clause of its own force. Even transferring a prisoner from the general population to a segregation unit does "not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest," and is "within the expected parameters of the sentence imposed by a court of law." Id. at 485.
There is no Constitutional right to contact visitation, Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985), and inmates have no independent constitutional right to visitation or to particular forms of visitation. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989); Smith v. Shettle, 946 F.2d 1250 (7th Cir. 1991). Moreover, prison officials have considerable discretion in determining the time, place, duration, and conditions of visitation. See Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999); Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998). The restriction Superintendent Levenhagen placed on McKinnon's visitation falls within the discretion the Constitution affords to prison officials, the restriction does not work an atypical and significant hardship on him in relation to the ordinary incidents of prison life, and it is "within the expected parameters of the sentence imposed by a court of law." Sandin v. Conner, 515 U.S. at 485.
CONCLUSION
For the foregoing reasons, pursuant to 28 U.S.C. § 1915A(b)(1), the court DISMISSES this complaint.