Willmes v. Allenby, et al.

Filing 12

FINDINGS and RECOMMENDATIONS to: (1) Dismiss 1 Complaint for Failure to State a Claim, (2) Direct Clerk's Office to Send Habeas Petition Form, and (3) Require Petitioner to File Habeas Petition or Notice of Voluntary Dismissal within Thirty Days; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 2/10/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/2/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HERBERT WILLMES,

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Plaintiff,

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CASE NO. 1:15-cv-00134-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO:

v.
CLIFF ALLENBY, et al.,

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Defendants.

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

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

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(ECF NO. 1)

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FOURTEEN
DEADLINE

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(14)

DAY

OBJECTION

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Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. His complaint is before the Court for

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screening.

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I.

SCREENING REQUIREMENT

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

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

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

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

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II.

PLEADING STANDARD

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

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

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

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

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

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(1989).

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

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

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

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

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1243, 1245 (9th Cir. 1987).

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

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

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

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

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

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

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

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

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

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III.

PLAINTIFF’S ALLEGATIONS

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

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

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

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

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

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Health.

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Plaintiff’s allegations may be summarized essentially as follows.

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

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

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

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predatorial offenses if released into the community. The Santa Clara County Superior

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

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

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

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since 2007.

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Plaintiff alleges that Defendants are aware his confinement is excessively

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

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

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assessments of whether Plaintiff was likely to commit sexually violent predatorial

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

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

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

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

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

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

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Plaintiff alleges that the assessment scheme and denial of outpatient treatment

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

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

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restrictive in relation to their purported purposes.

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Plaintiff seeks a declaration that the assessment methodology used (1) is

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“irrational contrary to the Procedural Due Process rights within the Constitution’s

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Fourteenth Amendment,” (2) causes individuals to be arbitrarily and irrationally deprived

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of treatment compared to similarly situated individuals, and (3) subjects sexually violent

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predators to excessively restrictive conditions of confinement. Plaintiff also seeks

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punitive damages.

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IV.

ANALYSIS

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A.

Overview of Sexually Violent Predator Act

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

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

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

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

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

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codifies a process involving several administrative and judicial stages to determine

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whether an individual meets the requirements for civil commitment.

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

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

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

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

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

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

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

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Id.

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The SDSH employs a standardized assessment protocol to determine whether a

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

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

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

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

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

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Inst. Code § 6601(d)-(h).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Code § 6605(b).

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B.

Claims Cognizable Only in Habeas Corpus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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brought in a section 1983 action. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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512 U.S. at 487.

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C.

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

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

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

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

Prospective Relief from Future Assessments

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Plaintiff alleges the assessments violated his procedural and substantive Due

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

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

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

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Rather,

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

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

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

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

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

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

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

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

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

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due process violation.

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V.

Plaintiff

may

petition

the

court

for

conditional

release

without

the

CONCLUSION AND RECOMMENDATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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upon which relief can be granted;

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

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

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

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these findings and recommendations.

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These Findings and Recommendations are submitted to the United States District

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

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

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

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

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

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

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

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

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

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IT IS SO ORDERED.
Dated:

February 10, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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