Griego v. Allenby, et al.

Filing 6

FIRST SCREENING ORDER DISMISSING FOURTH AMENDMENT CLAIM with Prejudice and Granting Leave to Amend Remaining Claims; Amended Complaint due by 11/5/2012, signed by Magistrate Judge Sheila K. Oberto on 10/02/2012. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD JOSE GRIEGO,

CASE NO. 1:11-cv-01676-SKO PC

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Plaintiff,

FIRST SCREENING ORDER DISMISSING
FOURTH AMENDMENT CLAIM WITH
PREJUDICE AND GRANTING LEAVE TO
AMEND REMAINING CLAIMS

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v.
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CLIFF ALLENBY, et al.,
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(Doc. 1)
Defendants.

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THIRTY-DAY DEADLINE
/

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First Screening Order
I.

Screening Requirement and Standard

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Plaintiff Leonard Jose Griego, a civil detainee proceeding pro se and in forma pauperis, filed

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this civil rights action pursuant to 42 U.S.C. § 1983 on October 4, 2011. The Court is required to

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screen Plaintiff’s complaint and dismiss the case, in whole or in part, if the Court determines it fails

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to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.
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Under section 1983, Plaintiff must demonstrate that each defendant personally participated

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in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires

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the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S.

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at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of

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misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d

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at 969.

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II.

Discussion

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A.

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Plaintiff, a civil commitment patient at Coalinga State Hospital (CSH) in Coalinga,

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California, alleges that Defendants Cliff Allenby, Acting Executive Director of the Department of

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Mental Health; Pam Ahlin, Executive Director of CSH; Ron Harmon, Chief of Hospital Police at

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CSH; and Sergeant Jerry Duvall violated his rights under the federal and state constitutions.

Summary of Allegations

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On September 16, 2011, six hospital police officers and a psychiatric technician, under the

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direction of Defendant Duvall, entered Plaintiff’s room, informed him that they suspected he may

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have an internet device, searched his room, and videotaped the search – all without his permission.

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Defendant Duvall confiscated Plaintiff’s Portable Playstation, power cord, DVDs, and a USB storage

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device that had been given to Plaintiff minutes earlier by another patient. Defendant Duvall

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informed Plaintiff that they would return the property that day, but it continues to be held under the

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guise of an investigation.

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Plaintiff alleges claims based on an unreasonable search and seizure under the Fourth

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Amendment, the denial of due process and equal protection under the Fourteenth Amendment, and

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the invasion of privacy, which also falls within the protection of the Fourteenth Amendment.

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Plaintiff seeks damages and injunctive relief.

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B.

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Under section 1983, Plaintiff must link the named defendants to the participation in the

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violation at issue. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011,

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1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297

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F.3d at 934. Liability may not be imposed on supervisory personnel under the theory of respondeat

Defendants Allenby, Ahlin, and Harmon

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superior, Iqbal, 556 U.S. at 676-77; Ewing, 588 F.3d at 1235, and as executives, administrators, or

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supervisors, Defendants Allenby, Ahlin, and Harmon may only be held liable if they “participated

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in or directed the violations, or knew of the violations and failed to act to prevent them,” Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir.

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2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School

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Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204

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(9th Cir. 1997). Some culpable action or inaction must be attributable to Defendants. Starr, 652

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F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County of San

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Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

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Plaintiff’s complaint is devoid of any factual allegations linking Defendants Allenby, Ahlin,

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and Harmon to the violation of his federal rights. Therefore, Plaintiff fails to state a claim against

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them under section 1983.

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B.

Defendant Duvall
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Fourth Amendment Claim

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The Fourth Amendment prohibits unreasonable searches. Bell v. Wolfish, 441 U.S. 520, 558,

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99 S.Ct. 1861 (1979); Byrd v. Maricopa County Sheriff’s Office, 629 F.3d 1135, 1140 (9th Cir.

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2011); Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). For the Fourth Amendment to

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apply, there must be a “reasonable expectation of privacy in the area invaded.” Espinosa v. City and

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County of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010); Hudson v. Palmer, 468 U.S. 517, 525,

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104 S.Ct. 3194 (1984); Bell v. Wolfish, 441 U.S. 520, 556-57, 99 S.Ct. 1861 (1979).

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In this instance, Plaintiff’s room at CSH was searched based on the suspicion that he had

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contraband, although none was found. Plaintiff contends that because a search warrant for his room

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was not obtained, his rights under the Fourth Amendment were violated.

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While Plaintiff is not a convicted criminal, he is involuntarily serving a civil commitment

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term at a secure facility; he is not a free individual with a full panoply of rights. Civil detainees are

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entitled to more considerate treatment and conditions of confinement than criminals whose

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conditions of confinement are designed to punish, Youngberg v. Romeo, 457 U.S. 307, 322, 102

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S.Ct. 2452 (1982) (quotation marks omitted), but maintaining facility security and effectively
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managing the facility are unquestionably legitimate, non-punitive government interests, Jones v.

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Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (quotation marks omitted).

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The contours of an involuntarily confined civil detainee’s right to privacy in his room in a

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secure treatment facility are unclear, but assuming Plaintiff retains any reasonable expectation of

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privacy at all in his room at CSH, it would necessarily be of a diminished scope given Plaintiff’s

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civil confinement. See Bell, 441 U.S. at 556-57 (discussing detainee’s expectation of privacy in cell

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or room at detention facility). Here, Plaintiff’s claim arises from a room search which was initiated

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based on the suspicion that Plaintiff had contraband. Whatever diminished expectation of privacy

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Plaintiff may have in his room at CSH, it cannot extend so far as to encompass an expectation of

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privacy in remaining free from suspicion-based contraband searches. See Bell, 441 U.S. at 557.

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Other courts which have considered the issue have concluded that no Fourth Amendment

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claim lies because civil detainees do not have a reasonable expectation of privacy in their rooms.

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Rainwater v. Bell, No. 2:10-cv-1727 GGH P, 2012 WL 3276966, at *11 (E.D.Cal. Aug. 9, 2012)

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(finding, on summary judgment, that civil detainee did not have a reasonable expectation of privacy

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in his jail cell); Gomez v. Davis, No. 2:10-cv-708-FtM-29DNF, 2011 WL 1058919, at *2-3

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(M.D.Fla. Mar. 21, 2011) (civil detainee’s Fourth Amendment claim dismissed because he did not

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have a reasonable expectation of privacy in his dormitory room); Pyron v. Ludeman, Nos. 10-3759

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(PJS/JJG), 10-4236 (PJS/JJG), 2011 WL 3293523, at *6 (D.Minn. Jun. 6, 2011) (finding motion to

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dismiss should be granted because a search of a civil detainee’s personal items in his cell does not

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violate the Fourth Amendment), report and recommendation adopted in full, 2012 WL 1597305

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(D.Minn. Jul. 29, 2011); Banda v. Corzine, No. 07-4508 (WJM), 2007 WL 3243917, at *7-8 (D.N.J.

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Nov. 1, 2007) (Fourth Amendment “illegal search” claim by civil detainees dismissed with prejudice

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because any expectation of privacy yielded to legitimate governmental interest in keeping facility

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free of controlled substances); Riley v. Doyle, No. 06-C-574-C, 2006 WL 2947453, at *5 (W.D.Wis.

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Oct. 16, 2006) (civil detainee denied leave to proceed on Fourth Amendment claim arising out of

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repeated contraband searches because there is no reasonable expectation of privacy in avoiding

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routine cell inspections and searches); compare Stearns v. Stoddard, No. C11-5422-BHS-JRC, 2012

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WL 1596965, at *3 (W.D.Wash. Apr. 11, 2012) (recognizing that whether a civil detainee housed
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in a secure facility has any expectation of privacy in his room is an open question and finding

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entitlement to summary judgment on Fourth Amendment claim based on qualified immunity), report

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and recommendation adopted in full, 2012 WL 1597305 (WD.Wash. May 7, 2012). Accordingly,

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the Court finds that Plaintiff does not have a reasonable expectation of privacy in his room at CSH

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under the circumstances alleged and his Fourth Amendment claim fails as a matter of law. It shall

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be dismissed, with prejudice.

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2.

Equal Protection Claim

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The Equal Protection Clause requires that persons who are similarly situated be treated alike.

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City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249 (1985); Shakur

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v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by

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showing that Defendants intentionally discriminated against Plaintiff based on his membership in

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a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03

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(9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of Los Angeles,

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250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated

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differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon

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Department of Agriculture, 553 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook

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v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F. 3d 580,

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592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

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Although Plaintiff alleges an equal protection claim, his complaint is devoid of any
allegations supporting a claim that Defendant Duvall intentionally discriminated against him.
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Due Process Claims
a.

Property Deprivation

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The Due Process Clause of the Fourteenth Amendment of the United States Constitution

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protects Plaintiff from being deprived of property without due process of law, Wolff v. McDonnell,

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418 U.S. 539, 556, 94 S.Ct. 2963 (1974), and Plaintiff has a protected interest in his personal

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property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations

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of property are actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532,

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n.13, 104 S.Ct. 3194 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), but the Due
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Process Clause is violated only when the agency “prescribes and enforces forfeitures of property

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without underlying statutory authority and competent procedural protections,” Nevada Dept. of

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Corrections v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d 1083,

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1090 (9th Cir. 2003)) (internal quotations omitted).

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In this instance, while Plaintiff alleges that his personal property was confiscated, he fails to
allege any facts supporting a claim that he was denied the procedural due process he was due.

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b.

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Privacy Claim

Finally, Plaintiff alleges that videotaping his person and his bed area during the search of his
room violated his right of privacy.

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“[O]ne aspect of the liberty protected by the Due Process Clause of the Fourteenth

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Amendment is a right of personal privacy or a guarantee of certain areas or zones of privacy.” Marsh

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v. County of San Diego, 680 F.3d 1148, 1153 (9th Cir. 2012) (citing Carey v. Population Servs. Int’l,

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431 U.S. 678, 684, 97 S.Ct. 2010 (1977)) (internal quotation marks omitted). However, “rights

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found in the guarantee of personal privacy are limited to those which are fundamental or implicit in

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the concept of ordered liberty.” Grummett v. Rushen, 779 F.2d 491, 493-94 (9th Cir. 1985) (citing

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Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705 (1973)) (internal quotation marks omitted).

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While Plaintiff retains a limited right of privacy while civilly committed, his complaint is

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devoid of any facts which suggest that videotaping the room search infringed upon that right.

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III.

Conclusion and Order

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In conclusion, Plaintiff’s complaint fails to state any claims under section 1983.1 With the

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exception of Plaintiff’s Fourth Amendment claim, some of the deficiencies may be capable of being

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cured through amendment and therefore, the Court will provide Plaintiff with the opportunity to file

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an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809

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F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new,

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unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Given Plaintiff’s failure to state any claims under federal law, the Court declines to reach whether or not
Plaintiff may have redress available under state law. 28 U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy
Bear, 254 F.3d 802, 805 (9th Cir. 2001).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556

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U.S. at 676-77. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa County,

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Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 2012) (en banc), and it

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must be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s Fourth Amendment search claim is dismissed, with prejudice, for failure
to state a claim;

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2.

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Plaintiff’s equal protection and due process claims are dismissed for failure to state
a claim, with leave to amend;

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3.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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4.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint; and

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5.

If Plaintiff fails to file an amended complaint in compliance with this order, this

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action will be dismissed, with prejudice, for failure to state a claim under section

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1983.

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IT IS SO ORDERED.

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Dated:
ie14hj

October 2, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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