Klein v. Longwell et al

Filing 10

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 6/26/2015. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AARON KLEIN,

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Plaintiff,

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CASE NO. 1:15-cv-00830-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF NO. 1)
KATHLEEN LONGWELL, et al.,

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Defendants.

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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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.

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PLEADING STANDARD
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 a Sexually Violent Predator (“SVP”) at Coalinga State

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Hospital (“CSH”). He names as Defendants the following persons in their individual

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capacities: (1) Kathleen Longwell, Ph.D., Psychologist for the Department of State

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Hospitals (“DSH”); and (2) Michael Musacco, Ph.D., Psychologist for DSH.

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Plaintiff’s allegations may be summarized essentially as follows.

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Defendant Musacco evaluated Plaintiff in 2012 and 2013. During the course of his

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evaluations, Defendant Musacco requested and relied upon information concerning

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Plaintiff’s juvenile offenses. The information was erroneous and the offenses were not

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qualifying offenses under the applicable provisions of the California Welfare and

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Institutions Code. Defendant Musacco testified that he would not have diagnosed

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Plaintiff with pedophilia had he not seen information concerning Plaintiff’s juvenile

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offenses. Defendant Longwell also referred to Plaintiff’s juvenile police reports in her

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evaluations. Although not entirely clear from the complaint, Plaintiff apparently was

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adjudicated a SVP based at least in part on these evaluations.

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Plaintiff claims that reliance on his juvenile offenses violated his rights to Equal
Protection and Due Process, and violated the California Welfare and Institutions Code.

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Plaintiff seeks to have Defendants removed from his case and requests

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independent evaluations and a new probable cause hearing.

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IV.

ANALYSIS
Plaintiff’s Prior Related Case

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A.

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This is not Plaintiff’s first case challenging the assessments used in adjudicating

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him a SVP. The Court takes judicial notice of Klein v. King, No. 14-cv-1440-MJS, in

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which Plaintiff raised a similar, although more generalized, challenge. In that action,

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Plaintiff was advised that his claims were cognizable only in habeas corpus and that, in

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any event, his allegations failed to state a due process claim. (ECF No. 12, in Case No.

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14-cv-1440-MJS.) Thereafter, Plaintiff filed a notice of voluntary dismissal, and the action

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was closed pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

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The same legal standards are applicable to the present action. Accordingly, the
Court reiterates herein much of its ruling in Case No. 14-cv-1440-MJS.

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B.

Overview of Sexually Violent Predator Act

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The Sexually Violent Predator Act (“SVPA”), California Welfare and Institutions

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Code §§ 6600 et seq., provides for the civil commitment of “a person who has been

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convicted of a sexually violent offense against one or more victims and who has a

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diagnosed mental disorder that makes the person a danger to the health and safety of

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others in that it is likely that he or she will engage in sexually violent criminal behavior.”

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Cal. Welf. & Inst. Code § 6600(a)(1). The SVPA codifies a process involving several

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administrative and judicial stages to determine whether an individual meets the

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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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C.

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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

Claims Cognizable Only in Habeas Corpus

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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 request for new, independent evaluations and a new probable cause

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hearing attacks the very proceedings that led to his detention. He cannot be granted

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relief on this claim without invalidating his detention. He may not bring these claims in a

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section 1983 action. Wilkinson, 544 U.S. at 78.

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Plaintiff’s claim that reliance on his juvenile offenses violated his Due Process and

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Equal Protection rights is barred on the same ground. See Huftile, 410 F.3d at 1141

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(concluding that challenge to SVPA assessments would imply invalidity of civil

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commitment and therefore could only be brought in habeas corpus). To the extent his

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claims are based on the use of the assessments in his civil commitment proceedings,

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they present a direct challenge to the validity of his confinement, and may not be brought

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in this action. Wilkinson, 544 U.S. at 81. To the extent he attempts to assert due process

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or equal protection rights in this assessment process itself, any claim as to the propriety

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of the assessments is so related to the civil commitment proceeding that success

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thereon would imply the invalidity of Plaintiff’s confinement: absent the allegedly deficient

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assessments, no petition for commitment would have been filed, and there would have

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been no basis for the Superior Court to proceed on the petition to civilly commit Plaintiff

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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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D.

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Edwards v. Balisok, 520 U.S. 641, 648 (1997), leaves open the possibility for

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Plaintiff to bring a section 1983 action seeking prospective relief that does not call into

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question the validity of his confinement. Plaintiff’s request that Defendants be removed

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from his case arguably brings the case into this category. Still, Plaintiff’s current

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allegations fail to state a cognizable claim.

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Removal of Defendants from Plaintiff’s Case

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Due Process

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Plaintiff may wish to allege that Defendants’ future assessments will violate his

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

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the SVPA or otherwise, that will be denied by Defendants’ continued participation in the

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assessment process. Significantly, the assessments are not determinative of whether

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Plaintiff’s detention should continue. Rather, Plaintiff may petition the court for

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conditional release without the recommendation or concurrence of SDSH. Cal. Welf. &

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Inst. Code § 6608(a). Plaintiff’s continued detention is determined by a judge at a

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hearing in which Plaintiff has the right to counsel and to retain experts to rebut the

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State’s assessments. Cal. Welf. & Inst. Code § 6608. His ultimate release from

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commitment is determined by a judge or jury in a proceeding in which Plaintiff maintains

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the right to counsel and to retain experts, and the State bears the burden of proof

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beyond a reasonable doubt. Cal. Welf. & Inst. Code § 6605. The SVPA provides

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sufficient procedural mechanisms for Plaintiff to challenge the assessments, and to

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demonstrate that he no longer qualifies for civil detention. These protections are such

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that any flaws in the assessment process do not rise to a due process violation.

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Equal Protection

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Plaintiff also may wish to allege that Defendants’ future assessments will violate

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his right to Equal Protection. The Equal Protection Clause requires that persons who are

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similarly situated be treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473

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U.S. 432, 439 (1985). An equal protection claim may be established by showing that the

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defendant intentionally discriminated against the plaintiff based on the plaintiff's

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membership in a protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir.

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2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly

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situated individuals were intentionally treated differently without a rational relationship to

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a legitimate state purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);

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see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North

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Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). Plaintiff has not

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alleged that he is a member of a protected class or that Defendants’ intentionally treat

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Plaintiff differently than others similarly situated. Accordingly, he fails to state an Equal

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Protection claim.

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3.

Violations of the SVPA

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Plaintiff alleges Defendants’ reliance on Plaintiff’s juvenile offenses violates the

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SVPA. The existence of the SVPA does not necessarily entitle a detainee to sue civilly

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for its violation. The Court has found no authority to support a finding of an implied

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private right of action under the SVPA, and Plaintiff has provided none.

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Even if such a private right of action exists, the Court will not exercise

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supplemental jurisdiction over any state law claim absent a cognizable federal claim. 28

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U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805

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(9th Cir. 2001); see also Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th

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Cir. 1994). “When . . . the court dismisses the federal claim leaving only state claims for

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resolution, the court should decline jurisdiction over the state claims and dismiss them

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without prejudice.” Les Shockley Racing v. National Hot Rod Ass’n, 884 F.2d 504, 509

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(9th Cir. 1989).

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Because Plaintiff has not alleged any cognizable federal claims, the Court will not

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exercise supplemental jurisdiction over his state law claim. Plaintiff may amend his state

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law claim, but if he fails to allege a viable federal claim in his amended complaint, the

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Court will not exercise supplemental jurisdiction over his state law claims. 28 U.S.C.

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§ 1367(a); Herman Family Revocable Trust, 254 F.3d at 805.

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Accordingly, the Court concludes that this allegation fails to state a cognizable

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claim.

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V.

CONCLUSION AND ORDER

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Plaintiff’s claims for new assessments and a new due process hearing challenge

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the validity of his confinement and may be brought only in a petition for a writ of habeas

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corpus. To the extent Plaintiff seeks prospective relief from future assessments, he has

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failed to state a cognizable claim. These deficiencies likely cannot be cured through

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amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). Nevertheless,

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Plaintiff will be given leave to amend his section 1983 claims. If he chooses to do so, he

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must allege facts to show that future assessments will violate his rights under the

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standards set forth above, and that relief in this action will not call into question the

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validity of his current confinement, either directly or indirectly. Plaintiff should note that

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although he has been given the opportunity to amend, it is not for the purposes of adding

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new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully

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read this Screening Order and focus his efforts on curing the deficiencies set forth

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above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). 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

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1. The Clerk’s Office shall send Plaintiff (1) a blank civil rights complaint form and

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(2) a copy of his complaint, filed June 1, 2015;
2. Plaintiff’s complaint (ECF No. 1) is dismissed for failure to state a claim upon

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which relief may be granted;

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3. Plaintiff shall file an amended complaint within thirty (30) days; and

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

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Court will dismiss this action, with prejudice, for failure to state a claim and

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failure to comply with a court order.

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IT IS SO ORDERED.
Dated:

June 26, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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