Goss v. Ahlin et al

Filing 12

FINDINGS and RECOMMENDATIONS recommending that this action proceed on Plaintiff's complaint, filed January 17, 2018, against Defendants Ahlin and Price in their official capacity on claims alleging punitive conditions of confinement in violation of the Fourteenth Amendment based on the ban on ownership of electronic devices and items and that section 4350 is over broad based on the ban on devices that have no internet connectivity or storage capacity; all other claims be Dismissed for failu re to state a claim; Plaintiff's request for declaratory relief be dismissed; If Plaintiff files an amended complaint within thirty (30) days of service of this findings and recommendation, the Court shall vacate the findings and recommendations re 1 Prisoner Civil Rights Complaint filed by Thomas H. Goss ; referred to Judge O'Neill,signed by Magistrate Judge Stanley A. Boone on 04/24/2018. Objections to F&R due 30-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS H. GOSS,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING CERTAIN
CLAIMS

v.

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Case No. 1:18-cv-00073-LJO-SAB (PC)

(ECF No. 1, 7, 11)

PAM AHLIN, et al.,

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OBJECTIONS DUE WITHIN THIRTY
DAYS

Defendants.

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Plaintiff Thomas H. Goss, a civil detainee, is appearing pro se and in forma pauperis in this

19 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed a complaint in this action on
20 January 17, 2018. The matter was referred to a United States magistrate judge pursuant to 28
21 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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The complaint was screened by a United States magistrate judge and on March 5, 2018, an

23 order issued requiring Plaintiff to either file a first amended complaint or notify the Court that he
24 was willing to proceed on the claims found to be cognizable. Plaintiff was granted an extension of
25 time to file an amended complaint on April 2, 2018. On April 3, 2018, this matter was reassigned
26 to United States Magistrate Judge Stanley A. Boone. On April 12, 2018, Plaintiff filed a response
27 stating that he did not want to file an amended complaint but wished to proceed on the cognizable
28 claims.

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I.

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SCREENING REQUIREMENT

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On March 5, 2018, the complaint in this action was screened and found to state a

4 cognizable substantive due process claim against Defendants Ahlin and Price in their official
5 capacities. (ECF No. 7.) Subsequently the matter was reassigned to the undersigned on April 3,
6 2018.
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Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court

8 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which
9 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
10 relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section
11 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v.
12 Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which
13 seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th
14 Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. §
15 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for
16 failure to state a claim).
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Accordingly, screening and rescreening of a complaint that may result in dismissal of

18 claims or defendants may be done at any time. Based on the reassignment of this action the Court
19 exercises its discretion to screen the plaintiff’s complaint to determine if it “(i) is frivolous or
20 malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
21 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
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In determining whether a complaint fails to state a claim, the Court uses the same pleading

23 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and
24 plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P.
25 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a
26 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
27 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
28 / / /

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In reviewing the pro se complaint, the Court is to liberally construe the pleadings and

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2 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,
3 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a
4 court need not accept a plaintiff’s legal conclusions as true.

Iqbal, 556 U.S. at 678. “[A]

5 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops
6 short of the line between possibility and plausibility of entitlement to relief.’”

Id. (quoting

7 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for
8 the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged.
9 Iqbal, 556 U.S. at 678.
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II.

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COMPLAINT ALLEGATIONS
Plaintiff is a civil detainee at Coalinga State Hospital (“CSH”) as a sexually violent

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13 predator (“SVP”) under California’s Sexually Violent Predator Act (“SVPA”), California Welfare
14 and Institutions Code, section 6600 et seq. (Compl. 5,1 ECF No. 1.) Plaintiff brings three claims
15 in this action. First, Plaintiff alleges that he is being confined in punitive conditions that amount to
16 cruel and unusual punishment in violation of the First, Fourth, Fifth, and Fourteenth Amendments.
17 Second, Plaintiff alleges that he is being denied the right to own and possess a laptop computer to
18 access the internet to view movies, search for daily news, and expressions of others in violation of
19 his rights to freedom of speech and expression under the First and Fourteenth Amendments.
20 Lastly, Plaintiff alleges that he is being denied access to the internet for news gathering,
21 expressions of others, and to buy and shop in violation of the First and Fourteenth Amendments.
22 Plaintiff argues that Title 9, Cal. Code Regs. § 4350 violates expo-facto and double jeopardy
23 regarding Plaintiff’s right to be free from punitive actions.

Plaintiff’s complaint is mainly

24 comprised of argument which the Court finds has made it difficult to determine what claims are
25 actually being raised in this action.
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All references to pagination of specific documents pertain to those as indicated on the upper right corners via the

28 CM/ECF electronic court docketing system.

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On December 27, 2017, Plaintiff received a copy of Title 9, section 4350 which was going

2 to be implemented as an emergency amendment. (Compl. 6.) Plaintiff contends that by subjecting
3 him to section 880-892 of Title 9 and section 4350, he is now subjected to the same punitive terms
4 of confinement as inmates sent to the Department of State Hospitals (“DSH”) for treatment of a
5 mental health commitment; and therefore, the regulation is punitive in nature. (Compl. 6-7.)
6 Plaintiff states that by implementing and supporting the regulation, Pam Ahlin, Director of State
7 Hospitals, and Brandon Price, Director of CSH, violate the treatment Plaintiff is to receive while
8 civilly committed and also violate expo facto and double jeopardy by being punitive and
9 subjecting him to cruel and unusual punishment. (Compl. 7.) Plaintiff argues that since prisoners
10 are allowed the right to access the internet and games that have the ability to access the internet,
11 denying a SVP identical or similar access violates his rights under the Fifth and Fourteenth
12 Amendments. (Compl. 7-8.)
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Plaintiff also contends that banning electronic devices (computers, games, radios, MP3

14 players, etc.) violates his rights because he has returned to a punitive setting much more restrictive
15 than when he was incarcerated in the California State Prison System which violates his rights
16 under the First, Fourth, Fifth, and Fourteenth Amendments. (Compl. 8.) Plaintiff states that his
17 rights have been violated when Defendants implemented and enforced a computer moratorium
18 preventing him from purchasing approved personal laptop computers and electronic games, and
19 then implementing new regulations, California Code of Regulations, Title 9, section 4350, which
20 allowed the Director of State Hospitals (“DSH”) to pick up electronic games and computers
21 already in Plaintiff’s possession.

(Compl. 8-9.)

The DSH has recognized the therapeutic

22 advantages of allowing patients to own and possess certain types of electronic devices to occupy
23 their time during non-treatment or therapeutic hours at the hospital. (Compl. 9.)
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On March 7, 2006, patients were allowed the right to own and possess personal laptop

25 computers, DVD players, and PlayStations. (Compl. 9.) The employees were allowed to modify
26 the devices so they were determined not to be accessible to the internet up to five miles or more
27 from the hospital grounds. (Compl. 9.) Plaintiff was allowed to purchase a Palm Pilot for his use
28 with the approval of laptop computers, games, and other electronic accessories. (Compl. 9.) The

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1 administrators at the time stated that ownership of these devices would enhance the therapeutic
2 atmosphere of the hospital. (Compl. 9.)
3

In October of 2009, the Director of California Department of State Hospitals took steps to

4 implement section 4350 which prohibited the ownership of desktop computers, laptop computers,
5 cellular phones, electronic gaming devices, personal digital assistants, graphing calculators, and
6 radios (satellite, shortwave, CB, and GPS) by Plaintiff within the DSH. (Compl. 9-10.) This
7 regulation took effect in 2010. (Compl. 10.) Plaintiff contends that this regulation is overbroad,
8 vague, and punitive. (Compl. 10.) As written the regulation does not define or distinguish
9 wireless internet devices that are pre-internet wireless devices, remotes, and electronic devices
10 with no internet capability like a common radio. (Compl. 10.) Section 4350 provides defendants
11 with the right to seize any electronic device as internet capable. (Compl. 10.) This regulation was
12 placed into effect because of supposed violations of hospital policies and state and federal laws.
13 (Compl. 10.) Plaintiff has not violated any hospital policies, or state or federal laws concerning the
14 ownership of his electronic devices. (Compl. 10.)
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On August 16, 2016, Plaintiff learned that defendants planned to implement California

16 Code of Regulations, Title 9, section 4350-Contraband Electronic Devices with Communication
17 and Internet Capabilities. (Compl. 10.) Plaintiff contends that this is a prison regulation. (Compl.
18 10.) Plaintiff contends that the regulation applies to the California Department of Corrections and
19 Rehabilitations (“CDCR”) and applying it to civilly committed individuals places the civil detainee
20 in the category of a prisoner subject to punishment. (Compl. 10.) Plaintiff states that prisons and
21 other local penal institutions are allowed to have the electronic devices that he is being prevented
22 from owning. (Compl. 10.)
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The CDCR is currently allowing the advancement of technology within the prison industry

24 by purchasing 500 tablets to be used by inmates at the California Men’s Colony as a tool for
25 educational and vocational training.

(Compl. 10.) These wireless devices allow inmates to

26 communicate work assignments and tests via wireless communication to the prison instructor
27 without the need of a classroom. (Compl. 10-11.) For entertainment purposes, the CDCR allows
28 X-Boxes and PlayStations as long as the wireless devices are inoperable and disconnected.

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1 (Compl. 11.) State prisoners are allowed to purchase and own computer tablets, PlayStations, and
2 X-Boxes without security concerns as long as the internet devices are disconnected. (Compl. 11.)
3 Plaintiff contends that he is being subjected to punitive conditions by not being allowed to own the
4 same items. (Compl. 11.)
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On December 23, 2017, Plaintiff received a copy of the proposed regulation that Pam Ahlin

6 is implementing to now include electronic devices other than Wi-Fi. (Compl. 11.) Brandon Price
7 will be enforcing this new regulation. (Compl. 11.) This amended regulation will remove from
8 Plaintiff the ability to own all media devices which have the capability to store data: including
9 Plaintiff’s MP3 player which stores music for entertainment; flash drives used to store legal
10 materials, letters, and briefs; hard drives used to store legal data, music, and television series, and
11 storage of current court decisions and opinions. (Compl. 11.) Since 2014, patients have been
12 allowed to scan their legal work to digital copies and stored these copies on personal hard drives to
13 remove excess storage of paperwork which was considered a fire hazard. (Compl. 11-12.) The
14 DSH now is going to declare these electronics that Plaintiff has been allowed to have since 2008 to
15 be contraband. (Compl. 12.)
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Plaintiff has invested over one thousand dollars on DVD movies and has collected many

17 series on hard drives for his personal use and viewing. (Compl. 12.) Plaintiff has been advised
18 that pursuant to this new regulation he will only be allowed a combination of 30 music CD and
19 DVDs. (Compl. 12.) Plaintiff contends this is punitive because CD and DVDs do not constitute a
20 security threat to the institution. (Compl. 12.) Plaintiff was previously allowed to purchase blank
21 DVD and readers/writers with the knowledge that they would be used to copy movies and music.
22 (Compl. 12.) Sony, MGM, and Blu-Ray give permission to download movies on your personal
23 media players to view, as well as streaming for series produced by Netflix, Disney, etc. (Compl.
24 12.) Plaintiff contends that taking copies of movies from patients who do not have money to buy
25 the original movies amounts to cruel and unusual punishment. (Compl. 12.) Plaintiff contends
26 that he bought his movies and series as originals and he should not have to send them home which
27 he was previously allowed to possess without restriction just to satisfy a false security concern.
28 (Compl. 12.)

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Finally, Plaintiff contends that the child pornography which the defendants are using to

2 justify removing the memory storage devices was introduced into the hospital by state employees.
3 (Compl. 12.) The state court records reflect that between nine months to one year ago, a state
4 employee was apprehended bringing child pornography into the institution. (Compl. 12.) Cell
5 phones, pornography, wireless devices, alcohol, drugs, and tobacco have been and continue to be
6 introduced into the hospital by patients willing to pay for the contraband material to staff. (Compl.
7 12-13.) Plaintiff alleges that he should not be punished for the actions of other individuals.
8 (Compl. 13.)
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Plaintiff has been allowed to purchase these items for 4 to 5 years and then after some

10 patients started misusing approved items, the DSH issues a blanket ruling declaring the items to be
11 contraband thus punishing the innocent with the guilty. (Compl. 13.) Now all the money Plaintiff
12 has spent purchasing the items at one and a half times their actual cost will be lost. (Compl. 13.)
13 Plaintiff works as a janitor making $52.50 per month and it takes him more than six months to save
14 the money to purchase an X-Box or tablet. (Compl. 13.) Plaintiff contends that taking away the
15 items will make the institution more dangerous because the detainees will have no way to entertain
16 themselves and it will open the door to violence. (Compl. 13.) Plaintiff argues that the least
17 restrictive way to address the security concerns would be to stop allowing blank CDs and DVDs as
18 well as DVD burners. (Compl. 13.) If defendants start to police their own employees (for
19 example, Kory G. Cooper (child porn, etc.), Carla K. Magdaleno (tobacco, cell phones, etc.)) the
20 criminal acts of the staff members and patients will cease. (Compl. 13.)
21

Plaintiff contends that Pam Ahlin and Brandon Price violate his rights under the First and

22 Fourteenth Amendments by denying him access to the internet. (Compl. 15.) Plaintiff is not
23 allowed any electronic devices or any internet access, yet in San Francisco County Jail more than
24 200 adult inmates acquire skills and earn high school credits using tables provided by the
25 American Prison Data Systems.

(Compl. 15.)

Eight states, Ohio, North Dakota, Georgia,

26 Louisiana, Virginia, Michigan, Washington, and Colorado, now regularly allow their prison
27 inmates to possess tablets. (Compl. 15.) A prison in North Dakota addressed the security concerns
28 by limiting the electronics provided to one tablet that can be remotely and cheaply monitored by

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1 professionals off site. (Compl. 16.) Defendants have not explained why this or any other less
2 drastic alternative was not considered prior to institution of a total ban. (Compl. 16.)
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Plaintiff seeks a declaration of his rights with regards to his games and electronic devices

4 which connect to the internet and an order preventing the DSH from implementing the regulation
5 declaring his memory devices, DVDs, CDs and related non-wireless devices as contraband.
6 (Compl. 18.)
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III.

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DISCUSSION

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Plaintiff is detained as a SVP pursuant to the SVPA. An SVP is defined as “a person who

10 has been convicted of a sexually violent offense against one or more victims and who has a
11 diagnosed mental disorder that makes the person a danger to the health and safety of others in that
12 it is likely that he or she will engage in sexually violent criminal behavior.” Cal. Welf. & Inst.
13 Code § 6600(a)(1). The SVPA authorizes the involuntary civil commitment of a person who has
14 completed a prison term, but has been given a “full evaluation” and found to be a SVP. Reilly v.
15 Superior Court, 57 Cal.4th 641, 646 (2013). “[SVPs] are involuntarily committed because their
16 mental disease makes them dangerous to others.” Seaton v. Mayberg, 610 F.3d 530, 540 (9th Cir.
17 2010).
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A.

Nature of Action against Defendants

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Here, Plaintiff does not specify whether he is bringing claims against the defendants in

20 their individual or official capacity. The court looks to the basis of the claims asserted and the
21 nature of the relief sought to determine if the claims are asserted against the defendants in their
22 individual or official capacity. Cent. Reserve Life of N. Am. Ins. Co. v. Struve, 852 F.2d 1158,
23 1161 (9th Cir. 1988).
24

Personal capacity suits seek to impose individual liability on the government official for

25 actions taken under the color of state law. Hafer v. Melo, 502 U.S. 21, 25 (1991). To state an
26 individual capacity claim, the plaintiff must show that the actions of the defendant caused the
27 deprivation of a federal rights. Id.
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1

An official capacity suit on the other hand is equivalent to a suit against the state itself

2 alleging that the agency’s policy or custom played a part in the violation of federal law. Hafer,
3 502 U.S. at 25. Further, “[t]he Eleventh Amendment bars suits for money damages in federal
4 court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v.
5 Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007).
6

The complaint filed here does not contain any allegations that the named defendants

7 engaged in any individual wrongdoing. Plaintiff alleges that the named defendants are responsible
8 for implementing a policy that prohibits him from possessing certain electronic devices and
9 accessing the internet. Plaintiff is attempting to hold the defendants liable for official policies and
10 procedures that are implemented by DSH.

Additionally, Plaintiff does not seek monetary

11 damages, but is seeking declaratory and injunctive relief. The nature of the suit clearly indicates
12 that Plaintiff is bringing this action against the defendants in their official capacities. Accordingly,
13 if any claims are stated in this action, they shall proceed as official capacity claims.
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B.

Fourteenth Amendment

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1.

Punitive Nature of Section 4350

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Plaintiff’s first cause of action alleges that on December 27, 2017, Plaintiff received a copy

17 of a proposed revision to section 4350 of Title 9 of the California Code of Regulations. (Compl.
18 6.) Plaintiff contends that he is being subjected to a regulation that is intended to apply to
19 prisoners serving a punitive term of commitment. Plaintiff argues that he is entitled to receive
20 more considerate treatment than those serving a punitive sentence and subjecting a civil detainee to
21 a regulation under Title 9 violates his rights under the First, Fourth, Fifth, and Fourteenth
22 Amendments.
23

To determine whether conditions of confinement of civilly committed individuals have

24 been violated, courts look to the substantive due process clause of the Fourteenth Amendment.
25 Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982); Jones v. Blanas, 393 F.3d 918, 931-32 (9th
26 Cir. 2004). States are thus required “to provide civilly-committed persons with access to mental
27 health treatment that gives them a realistic opportunity to be cured and released,” and to provide
28 “more considerate treatment and conditions of confinement than criminals whose conditions of

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1 confinement are designed to punish.” Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000)
2 (citations omitted).
3

Although civilly detained persons must be afforded more considerate treatment and

4 conditions of confinement than criminals, where specific standards are lacking, courts may look to
5 decisions defining the constitutional rights of prisoners, to establish a floor for the constitutional
6 rights of persons detained under a civil commitment scheme, Padilla v. Yoo, 678 F.3d 748, 759
7 (9th Cir. 2012) (citing Hydrick v. Hunter, 500 F.3d 978, 989 (9th Cir. 2007), vacated and
8 remanded on other grounds by 556 U.S. 1256 (2009), and may borrow Eighth Amendment
9 standards to do so, Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); Redman v. County of San
10 Diego, 942 F.2d 1435, 1441 (9th Cir. 1991), abrogated on other grounds by 511 U.S. 825 (1994).
11 But the conditions under which civil detainees are held cannot be harsher than those under which
12 prisoners are detained except where the statute itself creates a relevant difference. Hydrick, 500
13 F.3d at 989 n.7.
14

The Due Process Clause requires that the nature and duration of the civil commitment must

15 bear some reasonable relation to the purpose for with the individual is committed. Jones, 393 F.3d
16 at 931. However, civilly detained individuals can be subject to restrictions that have a legitimate,
17 non-punitive government purpose and that do not appear to be excessive in relation to that
18 purpose. Bell v. Wolfish, 441 U.S. 520, 535 (1979). “A reasonable relationship between the
19 governmental interest and the challenged restriction does not require an exact fit, nor does it
20 require showing a ‘least restrictive alternative.’ ” Valdez v. Rosenbalm, 302 F.3d 1039, 1046 (9th
21 Cir. 2002) (citations omitted). The only question is whether the defendants might reasonably have
22 thought that the policy would advance its interests. Id.
23

Under Ninth Circuit precedent, “a restriction is ‘punitive’ where it is intended to punish, or

24 where it is ‘excessive in relation to [its non-punitive] purpose,’ or is ‘employed to achieve
25 objectives that could be accomplished in so many alternative and less harsh methods[.]” Jones,
26 393 F.3d at 934 (citations omitted). “[A] presumption of punitive conditions arises where the
27 individual is detained under conditions identical to, similar to, or more restrictive than those under
28 which pretrial criminal detainees are held, or where the individual is detained under conditions

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1 more restrictive than those he or she would face upon commitment.” Id. This presumption can be
2 rebutted by the defendants explaining a legitimate, non-punitive purpose for the conditions
3 imposed. Id.
4

Plaintiff alleges that he is being subjected to a regulation that is designed for prisoners

5 serving a sentence for penal commitment at the DSH for mental illness. Further, Plaintiff contends
6 that the conditions under which he is being detained are more restrictive than the conditions of
7 prisoners in the custody of the California State Prison. Plaintiff also contends that there are less
8 restrictive alternatives that could be imposed and he is being punished for the wrongdoing of other
9 individuals although he has never violated any hospital policy, or state or federal law concerning
10 the ownership of his electronic devices. Here, the Court finds that Plaintiff has alleged sufficient
11 facts to state a plausible claim that section 4350 is punitive in nature.
12

Additionally, Plaintiff alleges that Defendants have implemented proposed changes further

13 restricting his ability to own and possess storage devices. The Court takes judicial notice that the
14 proposed changes to section 4359 were operative on January 12, 2018. See History Notes for Cal.
15 Code Regs. tit. 9, § 4350.
16

Defendants may be able to provide reasonable justification for the ban on the relevant

17 devices, but at the pleading stage, Plaintiff’s allegations are sufficient to state a cognizable
18 conditions of confinement claim based on the ban on ownership of electronic devices and items.
19
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2.

Prohibition Regarding Items that Cannot Connect to Internet nor Have Memory
Storage Capacity

Plaintiff contends that the regulation is over broad because it does not distinguish between

22 electronic items that are internet capable, and devices that have no internet capability like a
23 common radio. Plaintiff contends that section 4350 allows Defendants to seize any electronic
24 device as internet capable. Since the purpose of section 4350 and the amendments are alleged to
25 be to control the introduction of child pornography and contraband into the facility, it is unclear
26 how prohibiting devices that have no ability to connect to the internet or storage capacity would
27 further this goal. Liberally construed, Plaintiff’s allegation that the regulation prohibits devices
28 that are incapable of connecting to the internet and have no storage capacity states a cognizable

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1 claim.
2

Plaintiff also alleges that he is being deprived of his legal files and the previous order found

3 that this claim could proceed, however this Court respectfully disagrees. Plaintiff alleges that he
4 has been allowed to scan his legal work to digital copies and stored these copies on personal hard
5 drives to remove excess storage of paperwork which was considered a fire hazard. (Compl. 116 12.) However, these hard drives allow for copying of digital material which would include the
7 illegal child pornography which has been introduced into the facility and that the regulation has
8 been enacted to address. Although Plaintiff contends that he will no longer be allowed to keep
9 digital copies of his legal material, there are no allegations that patients are restricted from
10 maintaining paper copies of their legal files and documents. While electronic copies may be more
11 convenient to maintain, due process does not require the institution to provide the most convenient
12 manner in which to access legal files. Plaintiff has failed to state a claim that prohibiting devices
13 that provide for memory storage is over broad or excessive in relation to a non-punitive purpose.
14

3.

Procedural Due Process

15

It is unclear if Plaintiff is attempting to allege a procedural due process claim. The Due

16 Process Clause of the Fourteenth Amendment of the United States Constitution protects Plaintiff
17 from being deprived of property without due process of law, Wolff v. McDonnell, 418 U.S. 539,
18 563 (1974), and Plaintiff has a protected interest in his personal property, Hansen v. May, 502 F.2d
19 728, 730 (9th Cir. 1974). Authorized, intentional deprivations of property are actionable under the
20 Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984); Quick v. Jones, 754
21 F.2d 1521, 1524 (9th Cir. 1985). However, the Due Process Clause is not violated by the random,
22 unauthorized deprivation of property so long as the state provides an adequate post-deprivation
23 remedy. Hudson, 468 U.S. at 533; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).
24

To have a property interest, Plaintiff must demonstrate “more than an abstract need or

25 desire for it. . . . He must, instead, have a legitimate claim of entitlement to it” under state or
26 federal law. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). As previously found in the prior
27 screening order, the question is whether an individual awaiting civil commitment has a property
28 right to items in his possession that were once, but no longer, authorized, where Plaintiff is allowed

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1 to transfer those items to a third party of his choosing outside the institution.
2

While the Ninth Circuit has not yet reached this issue, other courts have found that “while

3 an inmate’s ownership of property is a protected property interest that may not be infringed upon
4 without due process, there is a difference between the right to own property and the right to
5 possess property while in prison.” Searcy v. Simmons, 299 F.3d 1220, 1229 (10th Cir. 2002)
6 (quoting Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002)). Thus, courts have found that
7 when property policies are revised to prohibit items but inmates and detainees are allowed to store
8 the items outside of the institution, no property interest is implicated and no process is due. See
9 e.g., Graham v. Sharp, No. 10-5563 (SRC), 2011 WL 2491374, at *15-16 (D.N.J. June 20, 2011)
10 (finding no constitutionally-recognized property interest for civil detainees in the continued
11 ownership of previously authorized electronic devices in the face of newly implemented
12 regulations that would prohibit and confiscate these devices); Davis v. Powers, No. C08-5751
13 FDB/KLS, 2010 WL 2163134, at *10-11 (W.D. Wash. Apr. 16, 2010) (finding no property interest
14 when a television had to be returned because it was in conflict with regulations); Trenton v.
15 Schriro, No. CIV 06-2905-PHX-MHM (DKD), 2007 WL 2572345, at 1-2 (D. Ariz. Sept. 74,
16 2007) (no property right for previously allowed typewriter where plaintiff had the option to mail it
17 home rather than have it confiscated); Dunbar v. A.D.O.C., No. CV 08-420-PHX-SMM (MEA),
18 2008 WL 2038026, at *4 (D. Ariz. May 12, 2008) (finding no property right deprivation for
19 confiscation of a television pursuant to prison regulations); see also Knight v. Yarborough, No. CV
20 03-01210-AG (VBK), 2011 WL 4550190, at *18 (C.D. Cal. Aug. 22, 2011) (noting that “[i]nmates
21 do not have a constitutional right to keep, or to dispose of contraband materials as they wish.”)
22

Section 4350 provides that if an inmate consents to search of the property that was in their

23 possession at the time that the regulation was implemented such property will be mailed to a
24 location designated by the patient if no contraband is found following the search. Cal. Code Regs.
25 tit. 9, § 4350(e). This Court agrees that since Plaintiff can mail his property to a location of his
26 choice as long as it does not contain any illegal material, he will retain ownership of the items. As
27 Plaintiff retains ownership of the items that are free of illicit materials, no deprivation will have
28 occurred and no protected property rights will be implicated; therefore, there is no process due.

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1 See Valdez, 302 F.3d at 1045 (where there is no state created property interest the procedural due
2 process claim fails).
3

Further, any procedural due process requirements appear to have been met in this case.

4 “Where the action complained of is legislative in nature, due process is satisfied when the
5 legislative body performs its responsibilities in the normal manner prescribed by law.” Halverson
6 v. Skagit Cty., 42 F.3d 1257, 1260 (9th Cir. 1994), as amended on denial of reh’g (Feb. 9, 1995).
7 The regulation does not target Plaintiff or his property, but applies to all individuals that are
8 detained in the DSH. ‘[G]overnmental decisions which affect large areas and are not directed at
9 one or a few individuals do not give rise to the constitutional procedural due process requirements
10 of individual notice and hearing; general notice as provided by law is sufficient.” Halverson, 42
11 F.3d at 1261 (9th Cir. 1994).
12

As attached to Plaintiff’s original complaint, the CDCR provided notice and an opportunity

13 to comment on December 22, 2017. (Finding of Emergency and Emergency Regulation Text,
14 attached to complaint at pp. 23-36, ECF No. 1.) Plaintiff fails to state a cognizable procedural due
15 process claim based on the amendment to section 4350.
16

C.

Internet Access Claim

17

Plaintiff contends that Defendants Ahlin and Price have violated his rights under the First

18 and Fourteenth Amendment by denying him internet access. Plaintiff contends that he is not
19 allowed any internet access no matter how limited. However, section 4350 states:
20
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22
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24
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Electronic devices with the capability to connect to a wired (for example,
Ethernet, Plain Old Telephone Service (POTS), Fiber Optic) and/or a wireless (for
example, Bluetooth, Cellular, Wi-Fi [802.11a/b/g/n], WiMAX) communications
network to send and/or receive information are prohibited, including devices
without native capabilities that can be modified for network communication. The
modification may or may not be supported by the product vendor and may be a
hardware and/or software configuration change. Some examples of the prohibited
devices include desktop computers, laptop computers, cellular phones, electronic
gaming devices, personal digital assistant (PDA), graphing calculators, and radios
(satellite, shortwave, CB and GPS).
Cal. Code Regs. tit. 9, § 4350.

26
Section 4350 prohibits Plaintiff from possessing certain devices that connect to the internet,
27

but it does not prohibit Plaintiff from accessing the internet. Section 891 provides that “[n]on LPS

28

14

1 patients shall not have access to the internet.” Cal. Code Regs. tit. 9, § 891. “Non-LPS” means
2 that the placement in or commitment to the facility is pursuant to legal authority other than the
3 Lanterman-Petris-Short (LPS) Act, commencing with Section 5000, of Part 1, Division 5 of the
4 Welfare and Institutions Code).”

Cal. Code Regs. tit. 9, § 881(o).

The LPS Act governs

5 involuntary treatment of the mentally ill in California. In re Conservatorship & Estate of George
6 H., 169 Cal.App.4th 157, 159 (2008). In contrast the SVPA targets “a small but extremely
7 dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be
8 identified while they are incarcerated.” Cooley v. Superior Court, 29 Cal. 4th 228, 253 (2002), as
9 modified (Jan. 15, 2003). Further, section 4350 itself provides that while Plaintiff shall not be in
10 personal possession of the electronic devices, the facility has the discretion to make such devices
11 accessible to the patient on a supervised basis. Cal. Code Regs. tit. 9, § 4350(d).
12

Simply because inmates retain certain rights does not mean that their rights are not subject

13 to restrictions and limitations. Wolfish, 441 U.S. at 545. Lawful incarceration brings with it the
14 withdrawal or limitation of many privileges and rights that are justified by considerations of the
15 penal system. Id. at 546. “There must be a “mutual accommodation between institutional needs
16 and objectives and the provisions of the Constitution that are of general application.” Id. (quoting
17 Wolff, 418 U.S. at 556. This principle applies equally to pretrial detainees and pretrial detainees
18 do not possess the full range of freedoms as an unincarcerated individual. Wolfish, 441 U.S. at
19 546. “[M]aintaining institutional security and preserving internal order and discipline are essential
20 goals that may require limitation or retraction of the retained constitutional rights of both convicted
21 prisoners and pretrial detainees.” Id.
22

An inmate does not retain rights inconsistent with proper incarceration.

23 Bazzetta, 539 U.S. 126, 131 (2003).

Overton v.

This includes those First Amendment rights that are

24 inconsistent with status as a prisoner or with the legitimate penological objectives of the
25 corrections system. Jones v. N. Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 129 (U.S.
26 1977). For example, the Supreme Court has held that freedom of association is among those rights
27 least compatible with incarceration and some curtailment of the freedom must be expected.
28 Overton, 539 U.S. at 132; see also Pell v. Procunier, 417 U.S. 817, 826 (1974) (limitations on press

15

1 interviews); Thornburgh v. Abbott, 490 U.S. 401, 405 (1989) (regulation allowing rejection of
2 incoming mail that was determined be detrimental to security, good order or discipline of the
3 institution or if it might facilitate criminal activity); Block v. Rutherford, 468 U.S. 576, 591 (1984)
4 (denial of contact visits).
5

Further, courts have routinely held that denying a SVP the right to access the internet does

6 not violate the First Amendment. See Telucci v. Withrow, No. 116CV00025JLTPC, 2016 WL
7 2930629, at *5-6 (E.D. Cal. May 19, 2016); Consiglio v. King, No. 115CV00969BAMPC, 2016
8 WL 4000001, at *3-4 (E.D. Cal. July 25, 2016); Cerniglia v. Price, No. 117CV00753AWIJLTPC,
9 2017 WL 4865452, at *4 (E.D. Cal. Oct. 27, 2017); Carmony v. Cty. of Sacramento, No. CIV S10 05-1679LKKGGHP, 2008 WL 435343, at *18 (E.D. Cal. Feb. 14, 2008), report and
11 recommendation adopted, No. CIVS051679LKKGGHP, 2008 WL 795101 (E.D. Cal. Mar. 25,
12 2008), order vacated on denial of reconsideration (Apr. 9, 2008), and report and recommendation
13 adopted, No. CIVS051679LKKGGHP, 2008 WL 2477646 (E.D. Cal. June 17, 2008). Plaintiff’s
14 complaint on its face demonstrates that the regulations restricting access to the internet are in place
15 to address issues with child pornography at DSH and that this continues to be a problem at CSH.
16 (Compl. 12, 13.)
17

Plaintiff alleges that his rights under the First Amendment to gather news, express himself

18 to others, and buy and shop on the internet is being violated. “The law generally requires a careful
19 balancing of the rights of individuals who are detained for treatment, not punishment, against the
20 state’s interests in institutional security and the safety of those housed at the facility.” Hydrick,
21 500 F.3d at 994. “In weighing those interests, it cannot be ignored that . . . SVPs have been civilly
22 committed subsequent to criminal convictions and have been adjudged to pose a danger to the
23 health and safety of others.”

Id.

“Therefore, the rights of SVPs may not necessarily be

24 coextensive with those of all other civilly detained persons.” Id.
25

Four factors are relevant in deciding whether a regulation affecting a constitutional right

26 that survives detainment withstands constitutional challenge: (1) whether the regulation has a
27 valid, rational connection to a legitimate governmental interest; (2) whether alternative means are
28 open to inmates to exercise the asserted right; (3) what impact an accommodation of the right

16

1 would have on guards and detainees and facility resources; and (4) whether there are ready
2 alternatives to the regulation. Overton, 539 U.S. at 131-132 (internal quotation marks omitted)
3 (citing Turner v. Safley, 482 U.S. 78, 89-91(1987)).
4

While Plaintiff alleges that he is being denied the right to gather news, express himself to

5 others, and shop and buy on the internet, a computer is just one means for Plaintiff to accomplish
6 these tasks. Plaintiff has other means than the internet to gather news, communicate, and shop
7 such as by television, mail, or telephone. Plaintiff’s first amended complaint does not allege that
8 his lawful communication or speech is not allowed by other means. Therefore, the Court finds that
9 Plaintiff has failed to state a claim under the First or Fourteenth Amendment based on denial of
10 access to the internet.
11

D.

Double Jeopardy and Ex Post Facto Claims

12

Plaintiff alleges that applying section 4350 to him violates the Double Jeopardy and Ex

13 Post Facto clauses of the Constitution.

The Double Jeopardy Clause precludes “a second

14 prosecution for the same offense,” and prevents “the State from ‘punishing twice, or attempting a
15 second time to punish criminally, for the same offense.’” Kansas v. Hendricks, 521 U.S. 346, 369
16 (1997) (quoting Witte v. United States, 515 U.S. 389, 396 (1995)).
17

Article I, § 10, of the Constitution provides that no state shall pass any ex post facto law.

18 “To fall within the ex post facto prohibition, a law must be retrospective-that is, ‘it must apply to
19 events occurring before its enactment’-and it ‘must disadvantage the offender affected by it,’ by
20 altering the definition of criminal conduct or increasing the punishment for the crime[.] Lynce v.
21 Mathis, 519 U.S. 433, 441 (1997) (internal citations omitted).
22

In Hydrick, the Ninth Circuit Court held that the SVPA is civil in nature and claims

23 challenging the Act under the Double Jeopardy and Ex Post Facto Clauses were foreclosed.
24 Hydrick, 500 F.3d at 993-994. Here, Plaintiff is challenging a regulation that is civil in nature and
25 claims that the regulation as applied is punitive. However, such claims are properly raised under
26 the Substantive Due Process Clause as Plaintiff has done in this action.
27

A statute that is civil in nature cannot be deemed to be punitive in nature as applied to

28 Plaintiff in violation of the Double Jeopardy and Ex Post Facto Clause. Seling v. Young, 531 U.S.

17

1 250, 267 (2001). Plaintiff’s challenge on double jeopardy and ex post facto grounds fails as a
2 matter of law.
3

E.

Fourth Amendment

4

Plaintiff generally alleges a right under the Fourth Amendment to own and retain his

5 personal property. The Fourth Amendment provides that ‘the right of the people to be secure in
6 their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
7 violated. U.S. Const. amend. IV. The Fourth Amendment prohibition against unreasonable search
8 and seizure extends to incarcerated prisoners and civil detainees. Thompson v. Souza, 111 F.3d
9 694, 699 (9th Cir. 1997) (prisoners); Hydrick, 500 F.3d at 993 (civil detainees). However, “the
10 reasonableness of a particular search is determined by reference to the prison context.” Hydrick,
11 500 F.3d at 993 (quoting Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.1988)).
12 Confinement in a state institution raises concerns similar to those raised by housing pretrial
13 detainees, such as “the safety and security of guards and others in the facility, order within the
14 facility and the efficiency of the facility’s operations.”

Hydrick, 550 F.3d at 993 (quoting

15 Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001)).
16

For the Fourth Amendment to apply, there must be a reasonable expectation of privacy in

17 the place that is invaded. Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 533 (9th Cir.
18 2010). “The contours of an involuntarily confined civil detainee’s right to privacy in his room in a
19 secure treatment facility are unclear, but assuming Plaintiff retains any reasonable expectation of
20 privacy at all in his living area at CSH, it would necessarily be of a diminished scope given
21 Plaintiff’s civil confinement.” Warrior v. Santiago, No. 116CV01504AWIGSAPC, 2018 WL
22 827616, at *4 (E.D. Cal. Feb. 12, 2018) (collecting cases). Although Plaintiff is not a convicted
23 criminal, “he is involuntarily serving a civil commitment term at a secure facility; and he is not a
24 free individual with a full panoply of rights.” Ryan v. Siqueiros, No. 1:15-CV-01152 DLB PC,
25 2016 WL 2898450, at *2 (E.D. Cal. May 18, 2016). Although civil detainees are entitled to more
26 considerate treatment and conditions of confinement than prisoners, Youngberg, 457 U.S. at 322,
27 maintaining facility security and effectively managing the institution are unquestionably
28 legitimate, non-punitive government interests, Jones, 393 F.3d at 932.

18

1

While the amendments to section 4350 provide that certain items that were previously

2 allowed are now considered contraband, Plaintiff does not have a reasonable expectation of
3 privacy in possessing contraband. Accordingly, the complaint fails to state a cognizable claim for
4 violation of the Fourth Amendment.
5

F.

Fifth Amendment

6

Plaintiff alleges a violation of his rights under the Fifth Amendment.

“[T]he Fifth

7 Amendment’s due process clause applies only to the federal government.” Bingue v. Prunchak,
8 512 F.3d 1169, 1174 (9th Cir. 2008). Since all Defendants in this action are state employees the
9 Fifth Amendment does not apply.
10

G.

Declaratory Relief

11

Plaintiff seeks an order declaring his constitutional rights. “A case or controversy exists

12 justifying declaratory relief only when the challenged government activity is not contingent, has
13 not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well
14 be a substantial adverse effect on the interests of the petitioning parties.” Feldman v. Bomar, 518
15 F.3d 637, 642 (9th Cir. 2008) (quoting Headwaters, Inc. v. Bureau of Land Management, Medford
16 Dist., 893 F.2d 1012, 1015 (9th Cir. 1989) (internal quotations and citation omitted)).
17 “Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and
18 settling the legal relations in issue nor terminate the proceedings and afford relief from the
19 uncertainty and controversy faced by the parties.” U.S. v. State of Wash., 759 F.2d 1353, 1357
20 (9th Cir. 1985) (citations omitted).
21

In the event this action reaches trial and the jury returns a verdict in favor of Plaintiff, that

22 verdict will be a finding that Plaintiff’s constitutional rights were violated.

Accordingly, a

23 declaration that any defendant violated Plaintiff’s rights is unnecessary in this action. The Court
24 recommends that Plaintiff’s request for declaratory relief be dismissed.
25

H.

Leave to Amend

26

In this action, Plaintiff has filed a response stating that he wishes to proceed on the claims

27 found to be cognizable in the March 5, 2018 screening order. Since this Court has now screened
28 the complaint and made different findings, Plaintiff will be allowed to file an amended complaint

19

1 should he so desire. If Plaintiff files an amended complaint, this findings and recommendations
2 will be vacated and the amended complaint will be screened to determine if it states any
3 cognizable claims.
4

If Plaintiff opts to amend, his amended complaint should be brief. Fed. R. Civ. P. 8(a).

5 Plaintiff must identify how each individual defendant caused the deprivation of Plaintiff’s
6 constitutional or other federal rights: “The inquiry into causation must be individualized and focus
7 on the duties and responsibilities of each individual defendant whose acts or omissions are alleged
8 to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
9

Although Plaintiff’s factual allegations will be accepted as true and “the pleading standard

10 Rule 8 announces does not require ‘detailed factual allegations,’ ” “a complaint must contain
11 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
12 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when
13 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
14 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
15 at 556).
16

Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth

17 v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
18 1987). The amended complaint must be “complete in itself without reference to the prior or
19 superseded pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an
20 original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at
21 567 (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth,
22 114 F.3d at 1474. In other words, even the claims that were properly stated in the original
23 complaint must be completely stated again in the amended complaint.
24

Should Plaintiff still wish to proceed on the claims that have been found cognizable in this

25 order he need not do anything. However, he may file objections which will be considered by the
26 district judge assigned to this action. If these findings and recommendations are adopting Plaintiff
27 will then be provided with the service documents to complete and return.
28 / / /

20

1

IV.

2

CONCLUSION AND RECOMMENDATION

3

Plaintiff’s complaint states a claim against Defendants Ahlin and Price for punitive

4 conditions of confinement based on the ban on ownership of electronic devices and items in
5 violation of the Fourteenth Amendment and that section 4350 is over broad based on the ban on
6 devices that have no internet connectivity or storage capacity.

However, Plaintiff has not

7 sufficiently alleged facts to state any other cognizable claims.
8

Based on the foregoing, it is HEREBY RECOMMENDED that:

9

1.

This action proceed on Plaintiff’s complaint, filed January 17, 2018, against

10

Defendants Ahlin and Price in their official capacity on claims alleging punitive

11

conditions of confinement in violation of the Fourteenth Amendment based on the

12

ban on ownership of electronic devices and items and that section 4350 is over

13

broad based on the ban on devices that have no internet connectivity or storage

14

capacity;

15

2.

All other claims be dismissed for failure to state a claim;

16

3.

Plaintiff’s request for declaratory relief be dismissed; and

17

4.

If Plaintiff files an amended complaint within thirty (30) days of service of this

18

findings and recommendation, the Court shall vacate the findings and

19

recommendations.

20

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21

1

This findings and recommendations is submitted to the district judge assigned to this

2

action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)

3

days of service of this recommendation, Plaintiff may file written objections to this findings and

4

recommendations with the Court.

5

Magistrate Judge’s Findings and Recommendations.”

6

magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff

7

is advised that failure to file objections within the specified time may result in the waiver of rights

8

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

9

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

Such a document should be captioned “Objections to
The district judge will review the

10
11

IT IS SO ORDERED.

12 Dated:

April 24, 2018
UNITED STATES MAGISTRATE JUDGE

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