Sheppard v. King et al

Filing 17

FINDINGS and RECOMMENDATIONS to: (1) Dismiss Complaint for Failure to State a Claim; (2) Direct Clerk's Office to Send Habeas Petition Form; and (3) Require Plaintiff to File Habeas Petition for Notice of Voluntary Dismissal Within Thirty Days 1 , signed by Magistrate Judge Michael J. Seng on 2/10/15: Fourteen (14) Day Objection Deadline. (Hellings, J)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

JIMMY SHEPPARD,

13
14
15
16
17
18

Plaintiff,

CASE NO. 1:14-cv-01977-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO:

v.
AUDREY KING, et al.,
Defendants.

(1) DISMISS COMPLAINT FOR FAILURE
TO STATE A CLAIM,
(2) DIRECT CLERK’S OFFICE TO SEND
HABEAS PETITION FORM, AND

20

(3) REQUIRE PLAINTIFF TO FILE
HABEAS PETITION OR NOTICE OF
VOLUNTARY DISMISSAL WITHIN
THIRTY DAYS

21

(ECF NO. 1)

19

22
23
24

FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

25
26
27
28

Plaintiff is a civil detainee proceeding pro se in this civil rights action brought
pursuant to 42 U.S.C. § 1983. His complaint is before the Court for screening.

1

I.

SCREENING REQUIREMENT

2

The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

3

portion thereof, that may have been paid, the court shall dismiss the case at any time if

4

the court determines that . . . the action or appeal . . . fails to state a claim upon which

5

relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

6

II.

PLEADING STANDARD

7

Section 1983 “provides a cause of action for the deprivation of any rights,

8

privileges, or immunities secured by the Constitution and laws of the United States.”

9

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

10

Section 1983 is not itself a source of substantive rights, but merely provides a method for

11

vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

12

(1989).

13

To state a claim under § 1983, a plaintiff must allege two essential elements:

14

(1) that a right secured by the Constitution or laws of the United States was violated and

15

(2) that the alleged violation was committed by a person acting under the color of state

16

law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

17

1243, 1245 (9th Cir. 1987).

18

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

19

the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

20

are not required, but “[t]hreadbare recitals of the elements of a cause of action,

21

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

22

662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

23

Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

24

that is plausible on its face.” Id. Facial plausibility demands more than the mere

25

possibility that a defendant committed misconduct and, while factual allegations are

26

accepted as true, legal conclusions are not. Id. at 677-78.

27
28
2

1

III.

PLAINTIFF’S ALLEGATIONS

2

Plaintiff is detained at Coalinga State Hospital (“CSH”). He names as Defendants

3

the following persons in their official capacities: (1) Audrey King, Executive Director of

4

CSH, (2) Cliff Allenby, Director of California Department of State Hospitals, (3) Tom

5

Voss, Former Executive Director of CSH, (4) Pam Ahlin, Former Executive Director of

6

CSH, and (5) Stephen Mayberg, former Director of California Department of Mental

7

Health.

8

Plaintiff’s allegations may be summarized essentially as follows.

9

The Alameda County District Attorney filed a petition pursuant to California’s

10

Sexually Violent Predator Act (“SVPA”) alleging that Plaintiff required mental health

11

treatment in an inpatient setting because Plaintiff was likely to commit sexually violent

12

predatorial offenses if released into the community. The Alameda County Superior Court

13

adjudicated the petition and ordered Plaintiff be prohibited from taking part in outpatient

14

treatment. Plaintiff is detained at Coalinga State Hospital pursuant to the Superior

15

Court’s order. Plaintiff has been in Defendants’ custody pursuant to this order since

16

2006.

17

Plaintiff alleges that Defendants are aware his confinement is excessively

18

restrictive in relation to the purposes of the SVPA and that he has been irrationally

19

denied the benefits of outpatient treatment. Plaintiff contends that Defendants’

20

assessments of whether Plaintiff was likely to commit sexually violent predatorial

21

offenses if released into the community were based on an irrational and fraudulent

22

assessment scheme. He points to various research studies and other articles purporting

23

to demonstrate that recidivism rates for sexually violent predators are lower than

24

perceived, that the assessment tools used by the State of California are unreliable, and

25

that supervised release and outpatient treatment of sex offenders are as effective as, if

26

not more effective than, civil detention in ensuring such offenders do not recidivate.

27
28
3

1

Plaintiff alleges that the assessment scheme and denial of outpatient treatment

2

violate his Fourteenth Amendment rights to procedural and substantive due process,

3

adequate treatment, equal protection, and to be free from conditions that are excessively

4

restrictive in relation to their purported purposes.

5

Plaintiff seeks preliminary and permanent injunctive relief preventing Defendants

6

from maintaining custody of individuals detained pursuant to the SVPA until Defendants

7

are able to provide them with outpatient treatment, as well as a declaration that the

8

assessment methodology used is “irrational contrary to the Procedural Due Process

9

rights within the Constitution’s Fourteenth Amendment.”

10

IV.

ANALYSIS

11

A.

Overview of Sexually Violent Predator Act

12

The SVPA, Cal. Welf. & Inst. Code §§ 6600 et seq., provides for the civil

13

commitment of “a person who has been convicted of a sexually violent offense against

14

one or more victims and who has a diagnosed mental disorder that makes the person a

15

danger to the health and safety of others in that it is likely that he or she will engage in

16

sexually violent criminal behavior.” Cal. Welf. & Inst. Code § 6600(a)(1). The SVPA

17

codifies a process involving several administrative and judicial stages to determine

18

whether an individual meets the requirements for civil commitment.

19

First, the California Department of Corrections and Rehabilitation (CDCR) and

20

Board of Parole Hearings (BPH) screens inmates who may be sexually violent predators

21

at least six months prior to their scheduled release dates. Cal. Welf. & Inst. Code

22

§ 6601(a)(1), (b). The screening is conducted in accordance with a structured screening

23

instrument developed by the State Department of State Hospitals (“SDSH”). Cal. Welf. &

24

Inst. Code § 6601(b). If CDCR and BPH determine that an individual “is likely to be a

25

sexually violent predator,” CDCR refers the individual to the SDSH for a full evaluation.

26

Id.

27
28
4

1

The SDSH employs a standardized assessment protocol to determine whether a

2

person is a sexually violent predator under Cal. Welf. & Inst. Code § 6601(c). If two

3

SDSH evaluators, or in some circumstances, two independent evaluators, determine that

4

the person has “a diagnosed mental disorder so that he or she is likely to engage in acts

5

of sexual violence without appropriate treatment and custody,” the Director of SDSH

6

forwards a request for a petition for commitment to the applicable county. Cal. Welf. &

7

Inst. Code § 6601(d)-(h).

8

If the county’s designated counsel agrees with the request, a petition for

9

commitment is filed in Superior Court. Cal. Welf. & Inst. Code § 6601(i). “The filing of the

10

petition triggers a new round of proceedings” under the SVPA. People v. Superior Court

11

(Ghilotti), 27 Cal. 4th 888, 904 (Cal. 2002). The petition is reviewed by a superior court

12

judge to determine whether the petition “states or contains sufficient facts that, if true,

13

would constitute probable cause to believe that the individual named in the petition is

14

likely to engage in sexually violent predatory criminal behavior upon his or her release.”

15

Cal. Welf. & Inst. Code § 6601.5. If so found, a probable cause hearing is conducted, at

16

which the alleged predator is entitled to the assistance of counsel. Cal. Welf. & Inst.

17

Code §§ 6601.5, 6602(a). If, at the hearing, no probable cause is found, the petition is

18

dismissed. Id. However, if probable cause is found, a trial is conducted. Id.

19

At trial, the individual is entitled to the assistance of counsel, to retain experts or

20

other professionals to perform an examination on his or her behalf, and to access all

21

relevant medical and psychological records and reports. Cal. Welf. & Inst. Code

22

§ 6603(a). Either party may demand a jury trial. Cal. Welf. & Inst. Code § 6603(a)-(b).

23

The trier of fact must determine whether the person is a sexually violent predator beyond

24

a reasonable doubt. Cal. Welf. & Inst. Code § 6604. “If the court or jury determines that

25

the person is a sexually violent predator, the person shall be committed for an

26

indeterminate term to the custody of [SDSH] for appropriate treatment and confinement

27

in a secure facility designated by the Director of State Hospitals.” Id.

28
5

1

Once committed, sexually violent predators must be reevaluated at least annually.

2

Cal. Welf. & Inst. Code § 6604.9(a). The annual report must include consideration of

3

whether the person “currently meets the definition of a sexually violent predator and

4

whether conditional release to a less restrictive alternative, pursuant to Section 6608, or

5

an unconditional discharge, pursuant to 6605, is in the best interest of the person and

6

conditions can be imposed that would adequately protect the community.” Cal. Welf. &

7

Inst. Code § 6604.9(b). If SDSH has reason to believe the person is no longer a sexually

8

violent predator, it shall seek judicial review of the commitment. Cal. Welf. & Inst. Code

9

§ 6605(c). If SDSH determines that conditional release or unconditional discharge is

10

appropriate, it shall authorize the committed person to petition the court for conditional

11

release or unconditional discharge. Cal. Welf. & Inst. Code § 6604.9(d). The committed

12

person also may petition the court for conditional release without the recommendation or

13

concurrence of SDSH. Cal. Welf. & Inst. Code § 6608(a).

14

The court may deny a petition for conditional release without a hearing if it is

15

based on frivolous grounds. Cal. Welf. & Inst. Code § 6608(a). If the petition is not based

16

on frivolous grounds, the court shall hold a hearing to determine “whether the person

17

committed would be a danger to the health and safety of others in that it is likely that he

18

or she will engage in sexually violent criminal behavior due to his or her diagnosed

19

mental disorder if under supervision and treatment in the community.” Cal. Welf. & Inst.

20

Code § 6608(g). The committed person has the right to counsel and the appointment of

21

experts for the hearing. Cal. Welf. & Inst. Code § 6608(a), (g). The committed person

22

bears the burden of proof by a preponderance of the evidence, unless the SDSH’s

23

annual reevaluation determines that conditional release is appropriate, in which case the

24

State bears the burden of proof. Cal. Welf. & Inst. Code § 6608(k). If the court

25

determines that the committed person would not be a danger while under supervision

26

and treatment, the person shall be placed in a conditional release program for one year.

27
28
6

1

Cal. Welf. & Inst. Code § 6608(g). Thereafter, the committed person may petition the

2

court for unconditional discharge. Cal. Welf. & Inst. Code § 6608(m).

3

If, upon receiving a petition for unconditional discharge, the court finds probable

4

cause to believe that the committed person is not a danger to the health and safety of

5

others and is not likely to engage in sexually violent criminal behavior if discharged, a

6

hearing is conducted. Cal. Welf. & Inst. Code § 6605(a)(2). At the hearing, the committed

7

person is entitled to the same constitutional protections afforded at the initial trial. Cal.

8

Welf. & Inst. Code § 6605(a)(3). Either party may demand a jury trial. Id. The state bears

9

the burden of proving, beyond a reasonable doubt, that the committed person remains a

10

danger to the health and safety of others and is likely to engage in sexually violent

11

criminal behavior if discharged. Id. If the petition is resolved in the committed person’s

12

favor, he is unconditionally released and unconditionally discharged. Cal. Welf. & Inst.

13

Code § 6605(b).

14

B.

15

The exclusive method for challenging the fact or duration of Plaintiff’s confinement

16

is by filing a petition for a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78

17

(2005). See 28 U.S.C. § 2254(a). Such claims may not be brought in a section 1983

18

action. Nor may Plaintiff seek to invalidate the fact or duration of his confinement

19

indirectly through a judicial determination that necessarily implies the unlawfulness of the

20

State’s custody. Wilkinson, 544 U.S. at 81. A section 1983 action is barred, no matter the

21

relief sought, if success in that action would necessarily demonstrate the invalidity of

22

confinement or its duration. Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994)

23

(unless and until favorable termination of the conviction or sentence, no cause of action

24

under section 1983 exists); Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir.

25

2005) (applying Heck to SVPA detainees with access to habeas relief).

Claims Cognizable Only in Habeas Corpus

26

Plaintiff’s claims for injunctive relief seek his release from custody so that he may

27

participate in outpatient treatment in lieu of civil detention. While a claim for prospective

28
7

1

relief often does not call into question the validity of a plaintiff’s confinement, see

2

Edwards v. Balisok, 520 U.S. 641, 648 (1997), Plaintiff’s claims here directly challenge

3

his custody. He may not bring these claims in a section 1983 action. Wilkinson, 544 U.S.

4

at 78.

5

Plaintiff’s claim that he is subjected to excessively restrictive conditions in

6

violation of the Due Process clause also is barred. The excessively restrictive condition

7

he challenges is his confinement itself. He cannot be granted relief on this claim without

8

invalidating his detention. Thus, he may not bring this claim in a section 1983 action.

9

Wilkinson, 544 U.S. at 81-82.

10

Likewise, Plaintiff’s allegation that he was denied outpatient treatment in violation

11

of the Due Process and Equal Protection clauses clearly implicates the validity of his

12

confinement. He does not seek outpatient treatment as a stand-alone mental health care

13

claim; rather, he seeks outpatient treatment in lieu of civil detention. Again, success on

14

this claim would invalidate Plaintiff’s confinement, and the claim therefore may not be

15

brought in a section 1983 action. Id.

16

Finally, Plaintiff’s claim that the assessment methodology violated his Due

17

Process rights, and his request for a declaration to that effect, are barred on the same

18

ground. See Huftile, 410 F.3d at 1141 (concluding that challenge to SVPA assessments

19

would imply invalidity of civil commitment and therefore could only be brought in habeas

20

corpus). To the extent his claims are based on the use of the assessments in his civil

21

commitment proceedings, they present a direct challenge to the validity of his

22

confinement, and may not be brought in this action. Wilkinson, 544 U.S. at 81. To the

23

extent he attempts to assert due process rights in this assessment process itself, any

24

claim as to the propriety of the assessments is so related to the civil commitment

25

proceeding that success thereon would imply the invalidity of Plaintiff’s confinement:

26

absent the allegedly deficient assessments, no petition for commitment would have been

27
28
8

1

filed, and there would have been no basis for the Superior Court to proceed on the

2

petition to civilly commit Plaintiff under the SVPA. Huftile, 410 F.3d at 1141.

3

In sum, until Plaintiff’s civil detention has been “reversed on direct appeal,

4

expunged by executive order, declared invalid by a state tribunal authorized to make

5

such determination, or called into question by a federal court's issuance of a writ of

6

habeas corpus,” Plaintiff is barred from bringing his claims under section 1983. Heck,

7

512 U.S. at 487.

8

C.

9

Edwards leaves open the possibility for Plaintiff to seek prospective relief in a

10

section 1983 action to prevent future injury caused by future assessments. 520 U.S. at

11

648. However, Plaintiff has not specifically articulated such a claim. Moreover, even if he

12

wishes to do so, his allegations would fail to state a cognizable claim.

Prospective Relief from Future Assessments

13

Plaintiff alleges the assessments violated his procedural and substantive Due

14

Process rights. However, Plaintiff does not identify any process due to him, under the

15

SVPA or otherwise, that was denied in the assessment process. Significantly, the

16

assessments are not determinative of whether Plaintiff’s detention should continue.

17

Rather,

18

recommendation or concurrence of SDSH. Cal. Welf. & Inst. Code § 6608(a). Plaintiff’s

19

continued detention is determined by a judge at a hearing in which Plaintiff has the right

20

to counsel and to retain experts to rebut the State’s assessments. Cal. Welf. & Inst.

21

Code § 6608. His ultimate release from commitment is determined by a judge or jury in a

22

proceeding in which Plaintiff maintains the right to counsel and to retain experts, and the

23

State bears the burden of proof beyond a reasonable doubt. Cal. Welf. & Inst. Code

24

§ 6605. The SVPA provides sufficient procedural mechanisms for Plaintiff to challenge

25

the assessments, and to demonstrate that he no longer qualifies for civil detention.

26

These protections are such that any flaws in the assessment process do not rise to a

27

due process violation.

Plaintiff

may

petition

the

court

28
9

for

conditional

release

without

the

1

V.

CONCLUSION AND RECOMMENDATION

2

Plaintiff’s claims, either directly or indirectly, challenge the validity of his

3

confinement, a challenge which may be brought only in a petition for a writ of habeas

4

corpus. Thus, Plaintiff has failed to state any claims that are cognizable under section

5

1983. To the extent Plaintiff could amend to seek relief that is not no so barred, his

6

allegations fail to state a cognizable claim for the reason stated. These deficiencies are

7

not capable of being cured through amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212-

8

13 (9th Cir. 2012). Plaintiff should not be given leave to amend his section 1983 claims.

9

It is recommended that the Court direct the Clerk’s Office to provide Plaintiff with a

10

habeas petition form, and that Plaintiff be permitted to file a habeas petition setting forth

11

facts supporting his challenge to the fact and/or the duration of his confinement.1

12

Alternatively, if Plaintiff no longer wishes to pursue this action, he may file a notice of

13

voluntary dismissal. Fed. R. Civ. P. 41(a)(1)(A)(i).

14

Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Plaintiff’s complaint (ECF No. 1) be dismissed for failure to state a claim

15
16

upon which relief can be granted;

17

2. The Clerk’s Office be directed to send Plaintiff a habeas petition form; and

18

3. Plaintiff be required to file a habeas petition or a notice of voluntary

19

dismissal within thirty (30) days of the date of service of the order adopting

20

these findings and recommendations.

21

These Findings and Recommendations are submitted to the United States District

22

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

23

fourteen (14) days after being served with these Findings and Recommendations, any

24

party may file written objections with the Court and serve a copy on all parties. Such a

25
1

26
27
28

On December 31, 2014, the Court ordered Plaintiff to submit, within thirty days, an application to proceed
in forma pauperis on the appropriate form, or the $400 civil filing fee in full. (ECF No. 7.) Plaintiff has not
complied. Plaintiff is advised that, if he wishes to proceed in this action, he must comply with the Court’s
orders, including the December 31, 2014 order to submit an application to proceed in forma pauperis on
the appropriate form. Failure to do so will result in a recommendation to dismiss Plaintiff’s action for failure
to obey a court order and failure to prosecute.

10

1

document should be captioned “Objections to Magistrate Judge’s Findings and

2

Recommendations.” Any reply to the objections shall be served and filed within fourteen

3

(14) days after service of the objections. The parties are advised that failure to file

4

objections within the specified time may result in the waiver of rights on appeal.

5

Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

6

F.2d 1391, 1394 (9th Cir. 1991)).

7
8
9
10

IT IS SO ORDERED.
Dated:

February 10, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11