United States District Court, S.D. Indiana, Indianapolis Division
MOTION TO DISMISS AND DIRECTING ENTRY OF FINAL JUDGMENT
LARRY J. McKINNEY, District Judge.
For the reasons explained in this Entry, the defendant's motion to dismiss pursuant to Rule 12(b)(6) [dkt. 14] is granted.
The plaintiff alleges in his complaint that he has been denied contact visitation since August 28, 2012, based on a finding of misconduct which did not involve a violation of the visitation rules. The conduct report was based on disciplinary code: 235 "fleeing or physically resisting a staff member in the performance of his/her duty." He alleges that his non-contact visits were made permanent on August 28, 2012. He alleges the denial of his non-contact visits violates his due process and equal protection rights and the Separation of Powers Clause of the United States Constitution. He seeks injunctive relief in the form of having his full contact visitation rights restored immediately. The plaintiff's claim was allowed to proceed against a single defendant, Superintendent Dushan Zatecky, in his official capacity only.
The defendant filed a motion to dismiss pursuant to Rule 12(b)(6) on January 27, 2014. The plaintiff has opposed the motion.
II. Legal Standard
In considering a motion to dismiss for failure to state a claim, the Court reviews the complaint in light of Rule 8(a) of the Federal Rules of Civil Procedure, which provides: "A pleading that states a claim for relief must contain:... a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 12(b)(6) authorizes dismissal of complaints that state no actionable claim. In conducting an appropriate analysis for this purpose,
[a]ll well-pleaded facts are accepted as true, and all reasonable inferences are drawn in the plaintiff's favor. [ Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)]. The allegations in the complaint "must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level'; if they do not, the plaintiff pleads itself out of court." EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 1973 n.14, 167 L.Ed.2d 929 (2007)).
Hale v. Victor Chu, 614 F.3d 741, 744 (7th Cir. 2010). "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).
Due Process Claim
The defendant argues that restricting an inmate to non-contact visitation does not violate due process. The Court agrees. Inmates do not have a liberty interest in having access to visitors, and therefore they are not entitled to due process before they lose visitation privileges. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461 (1989) (denial of access to a particular visitor is not independently protected by the Due Process Clause); Lekas v. Briley, 405 F.3d 602, 611-12 (7th Cir. 2005) (deprivation of visits is not an atypical and significant hardship sufficient to trigger due process protections); DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir. 2000).
When no recognized liberty or property interest has been taken, which is the case here, the confining authority "is free to use any procedures it chooses, or no procedures at all." Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. ...