848 F2d 1242 Forkum v. Claywell

848 F.2d 1242

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Kenneth C. FORKUM, Plaintiff-Appellant,
v.
Li CLAYWELL, et al., Defendants-Appellees.

No. 87-1587.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 10, 1988.*
Decided June 2, 1988.

Before MERRILL, REINHARDT and CYNTHIA HOLCOMB HALL, Circuit Judges.

1

MEMORANDUM**

2

Kenneth Forkum appeals pro se and in forma pauperis the district court's dismissal of his 42 U.S.C. Sec. 1983 claim. The district court dismissed Forkum's claim pursuant to 28 U.S.C. Sec. 1915(d) (1982 & Supp. III 1985) which provides that "[t]he court ... may dismiss the case ... if satisfied that the action is frivolous or malicious."

3

Forkum is incarcerated at the Maricopa County Jail in Arizona. On October 4, 1986, two men, Reyes and Delgado, came to visit Forkum. Defendant Claywell, a prison detention officer permitted Delgado to visit Forkum, but denied Reyes, allegedly because he lacked proper identification. Forkum argues that Reyes did show proper identification, and further argues that Claywell's denial was discriminatory.

4

Forkum brought this section 1983 claim against Officer Claywell, and Maricopa County Sheriff, Dick Godbehere, alleging that he was denied his constitutional right to be visited by Reyes.

5

The district court may dismiss an in forma pauperis complaint as frivolous under 28 U.S.C. Sec. 1915(d) if the complaint has "no arguable substance in law or fact." Rizzo v. Dawson, 778 F.2d 527 (9th Cir.1985). Pro se plaintiffs proceeding in forma pauperis, however, "must also be given an opportunity to amend their complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Tripati v. First National Bank & Trust, 821 F.2d 1368, 1370 (9th Cir.1987) (quoting Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir.1984)).

6

Although it is clear that there is no inherent constitutional right to visitation, see Thompson v. Commonwealth of Kentucky Department of Corrections, 833 F.2d 614, 617 (6th Cir.1987); Evans v. Johnson, 808 F.2d 1427, 1428 (11th Cir.1987), a state may create a liberty interest in visitation by enacting a statute or regulation. Thompson, 833 F.2d at 618; cf. Hewitt v. Helms, 459 U.S. 460 (1983) (though there is no inherent constitutional right to be placed in a particular section within a prison, Pennsylvania statutes and regulations setting forth procedures for segregation of inmates created a liberty interest in remaining in the general prison population).

7

The record does not indicate that Forkum's claim lacks arguable substance in law or fact. It is unclear whether the state of Arizona has created a protected liberty interest in visitation. See Thompson, supra. If the state has created a liberty interest in visitation, it is unclear whether Forkum was denied that interest without due process of law. Even if visitation is only a privilege, it cannot be denied for an improper reason. See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973). Forkum appears to claim that Reyes was denied visitation on the basis of alienage. This claim raises a colorable constitutional claim. See Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).

8

We conclude that Forkum should have been granted leave to amend.

9

The district court's dismissal of Forkum's claim as frivolous is therefore reversed and the case is remanded for further proceedings consistent with this opinion.

*

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3