Williams v. Price et al

Filing 11

ORDER REQUIRING Plaintiff to AMEND or RESPOND; Thirty (30) Day Deadline signed by Magistrate Judge Michael J. Seng on 3/7/2018. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COREY WILLIAMS,

CASE NO. 1:18-cv-00102-LJO-MJS (PC)

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Plaintiff,

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(ECF No. 1)

v.

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ORDER REQUIRING PLAINTIFF TO
AMEND OR RESPOND

[SVPA CASE]
BRANDON PRICE, et al.,

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THIRTY (30) DAY DEADLINE

Defendants.

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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.
Plaintiff’s complaint (ECF No.1) is before the Court for screening.

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I.

Screening Requirement

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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the

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complaint to determine if it states a cognizable claim. The Court must dismiss a

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complaint or portion thereof if it determines that the action has raised claims that are

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legally "frivolous or malicious," "fails to state a claim upon which relief may be granted,"

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2)(B). "Notwithstanding any filing fee, or any portion thereof, that may have

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been paid, the court shall dismiss the case at any time if the court determines that . . .

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the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C.

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§ 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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

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relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility demands

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more than the mere possibility that a defendant committed misconduct and, while factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78.

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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). To

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state a claim under §1983, a plaintiff must allege two essential elements: (1) that a right

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secured by the Constitution or laws of the United States was violated and (2) that the

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alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245

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(9th Cir. 1987).

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Under section 1983 the Plaintiff must demonstrate that each defendant personally

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

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2002). This requires the presentation of factual allegations sufficient to state a plausible

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claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to

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have their pleadings liberally construed and to have any doubt resolved in their favor,

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,

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the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal,

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556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

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Facts and Allegations
A. Plaintiff’s Claims

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Plaintiff is currently detained at Coalinga State Hospital (“Coalinga”) and

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complains of acts that occurred there. He names as Defendants (1) Brandon Price,

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Director of Coalinga; and (2) Pam Ahlin, Director of California Department of State

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Hospitals (“DSH”).

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Plaintiff’s allegations can be fairly summarized as follows:

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Plaintiff is detained at Coalinga under California’s Sexually Violent Predator Act

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(“SVPA”) pending the adjudication of his civil commitment proceedings.

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On January 12, 2018, Plaintiff received a memorandum from Brandon Price

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detailing emergency amendments to Cal. Code Regs. tit. 9, § 4350 (hereinafter

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Regulation 4350), prohibiting nearly all electronic devices with memory storage, devices

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capable of connecting to the internet or to other devices, and devices capable of copying

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or recording information.

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The amendment to Regulation 4350 would strip Plaintiff of nearly all his electronic

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devices. Plaintiff owns many such devices including an MP3 player, gaming devices and

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a graphing calculator. These devices will be confiscated and Plaintiff will not be

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compensated for them.

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The regulation would also confiscate any device that can store digital data.
Plaintiff has two legal actions pending and nearly all of his work is stored on digital files.

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Coalinga is located in a rural area and TV and FM radio reception are virtually

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unavailable. Plaintiff relies on electronic devices to watch movies and television and

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listen to music. In addition, without his electronic devices, Plaintiff will be unable to

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pursue his college degree in mathematics.

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After Regulation 4350 was enacted Coalinga was placed on lockdown and

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Plaintiff had no access to the library, computers or typewriters to prepare this action.

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Plaintiff was not allowed to purchase lined paper. Plaintiff was denied all access to

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telephones. All visits were suspended.

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Plaintiff brings claims under the First, Fifth, Fourth, and Fourteenth Amendments.
He seeks declarative and injunctive relief.
B.

Notice of Emergency Amendments and Finding of Emergency

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Plaintiff includes as an exhibit to his complaint the Notice of Emergency

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Amendments and Finding of Emergency provided to Plaintiff by DSH. (See ECF No. 1,

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Ex. A at 34-47).

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This document outlines the facts and reasoning DSH relied upon in making its

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determination that there was a need for emergency amendment of Regulation 4350. As

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such, the document is relevant in determining whether Plaintiff’s allegations state a

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claim. It is summarized here:

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The Notice recites a need to control not just access to the internet and certain

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electronic devices, but data storage at state hospitals. (Id.) Digital data storage and

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communication has allowed patients to access, exchange and/or profit from illegal

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material, including child pornography. (Id. at 35.)

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DSH has been working with the Fresno County District Attorney’s office to

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investigate and prosecute child pornography cases. (Id. at 36.) In 2017, DSH made

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eleven arrests in regards to child pornography. (Id.) There have been five convictions of

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patients on charges relating to child pornography and several more are awaiting trial.

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(Id.) DSH has found that nearly all of the child pornography is being distributed through

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various electronic devices. (Id.)

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Memory devices, even small devices, have the capability to store and copy digital

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information; and many electronic devices, even devices thought to be disconnected from

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the internet, allow for access to the internet. (Id. at 36-37.)

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DSH further notes that:

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[A]ccess to the internet provides full access to illegal materials, aerial views of
DSH facilities, communication with victims, communication to create additional
victims, and the ability to download illicit images for sale or sharing with other
patients. However because the ability is in software format within currently
authorized memory devices, it is not detectible as contraband through standard
room searches. Penal Code section 1546.1, adopted in 2015, mandates that a
search of electronic devices is not permitted without permission by the possessor
or a search warrant further frustrating the ability to enforce facility and public
safety. . . This internet access creates danger for the public, the staff, and
patients, as well as interferes with treatment by creating exposures, triggers,
and temptations that are intended to be controlled in a secured inpatient mental
health setting.

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(Id. at 37.)
Gaming devices that access the internet are currently prohibited and those

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without internet access are allowed. (Id.) However, many recent gaming devices contain
data storage capabilities, permitting patients to download illegal material to the device
and then prevent the illegal material from being discovered in a standard room search.
(Id.) These gaming devices also allow for copyright violations. (Id.) Therefore, the
amendment would prohibit possession of gaming devices with accessible data and the
ability to play non-proprietary inserts. (Id.)
The ability to burn DVDs and CDs allows for the distribution of illegal images, as

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well as copyright infringements. (Id.) This poses enforcement challenges as DSH does
not have the staff needed to get warrants and to review disks to determine what material
is appropriate. (Id.) Therefore the amendment would ban all CD/DVD burners and blank
disks, but allows some ownership of CDs and DVDs provided by a manufacturer. (Id.)
DSH acknowledges that child pornography and other illegal materials exist within

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hospitals, but without the proposed amendment, it cannot address and remove them. (Id.
at 39.)

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IV.

Analysis

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A.

Official Capacity Claims

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Plaintiff brings claims against Defendants in their official capacities.

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Plaintiff properly seeks only injunctive and declaratory relief. See Aholelei v. Dept.

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of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007); Wolfson v. Brammer, 616 F.3d

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1045, 1065-66 (9th Cir. 2010). A plaintiff pursuing claims against defendants in their

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official capacities must demonstrate that a policy or custom of the governmental entity of

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which the official is an agent was the moving force behind the violation. See Hafer v.

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Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 166 (1985). That is,

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the plaintiff must establish an affirmative causal link between the policy at issue and the

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alleged constitutional violation. See City of Canton, Ohio v. Harris, 489 U.S. 378, 385,

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391-92 (1989); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).

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Furthermore, “[a] plaintiff seeking injunctive relief against the State is not required to

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allege a named official’s personal involvement in the acts or omissions constituting the

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alleged constitutional violation.” Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d

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1114, 1127 (9th Cir. 2013) (citing Hafer, 502 U.S. at 25.) “Rather, a plaintiff need only

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identify the law or policy challenged as a constitutional violation and name the official

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within the entity who can appropriately respond to injunctive relief.” Id. (citing Los

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Angeles County v. Humphries, 562 U.S. 29, 35-36 (2010)).

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Here Plaintiff alleges that current and proposed DSH policies unconstitutionally

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prohibit him and other patients from owning certain electronic devices and force him to

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dispose of his validly accumulated electronic material. He seeks modification of these

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policies. Pam Ahlin, as the Director of DSH, and Brandon Price, as the Director of

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Coalinga, are appropriate defendants to respond to Plaintiff’s requests. Therefore, if and

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to the extent Plaintiff’s claims are found to be cognizable, Plaintiff may proceed with his

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suit against Defendants in their official capacities.

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B.

Substantive Due Process

Plaintiff claims that the conditions of his confinement violate his Fourteenth
Amendment right to substantive due process.

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The Fourteenth Amendment substantive due process clause provides the

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standard for evaluating the constitutionally protected interests of individuals who have

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been involuntarily committed to a state facility. Youngberg v. Romeo, 457 U.S. 307, 322-

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323 (1982); Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir.2004). Civilly committed

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persons have a substantive due process right to be free from restrictions that amount to

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punishment. United States v. Salerno, 481 U.S. 739, 746-47 (1987); Bell v. Wolfish, 441

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U.S. 520, 535 (1979).

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The Fourteenth Amendment requires the government to do more than provide the

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"minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347

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(1981). Rather, "due process requires that the nature and duration of commitment bear

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some reasonable relation to the purpose for which the individual is committed." Jackson

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v. Indiana, 406 U.S. 715, 738 (1972). "[T]he Fourteenth Amendment Due Process

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Clause requires states to provide civilly-committed persons with access to mental health

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treatment that gives them a realistic opportunity to be cured and released." Sharp v.

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Weston, 233 F.3d 1166, 1172 (9th Cir. 2000) (citing Ohlinger v. Watson, 652 F.2d 775,

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778 (9th Cir. 1980)).

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Detainees awaiting civil commitment proceedings are entitled to conditions at

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least as favorable as those provided to individuals civilly committed and to all criminal

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detainees. Jones, 393 F.3d at 932. When a SVPA detainee is confined in conditions

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identical to, similar to, or more restrictive than those applied to individuals detained

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under criminal codes, it is presumed that the detainee is being subjected to punishment.

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Id., 393 F.3d at 932 (referencing Sharp, 233 F.3d at 1172-73). The SVPA “generally

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requires a careful balancing of the rights of individuals who are detained for treatment,

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not punishment, against the state's interests in institutional security and the safety of

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those housed at the facility." Hydrick v. Hunter, 500 F.3d 978, 990 (9th Cir. 2007),

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vacated on other grounds by Hunter v. Hydrick, 556 U.S. 1256 (2009).

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Here, Plaintiff claims that the limitations on possession of electronic devices and

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media storage are inherently punitive in nature. Plaintiff alleges that these restrictions

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are unnecessarily broad and amount to punishment because he is being denied access

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to information and devices which could facilitate his treatment.

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Restrictions are permitted if they are “incident of some other legitimate

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government purpose." Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002). To

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be permissible a restriction need not be “an exact fit, nor does it require showing a least

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restrictive alternative." Id. at 1046 (citation omitted). Legitimate, non-punitive government

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interests include ensuring a detainee's presence at trial, maintaining jail security, and

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effective management of a detention facility. Hallstrom v. City of Garden City, 991 F.2d

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1473, 1484 (9th Cir. 1993). The Ninth Circuit has recognized that restrictions may be

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considered punitive (1) where the challenged restrictions are expressly intended to

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punish, or (2) where the challenged restrictions serve an alternative, non-punitive

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purpose but are nonetheless excessive in relation to the alternative purpose, or are

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employed to achieve objectives that could be accomplished in alternative and less harsh

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methods. Jones, 393 F.3d at 932 (citations and quotations omitted).

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Here, there is nothing to suggest the regulations are intended to punish. The facts

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as alleged by Plaintiff and supported by exhibits to his complaint indicate genuine and

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significant safety concerns at Coalinga relating particularly to the storage and sharing of

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child pornography. These are reasonably characterized as adversely impacting the

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security of the institution and the public and apparently conflict with treatment regimens.

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Not the least of such concerns is society’s legitimate concern with re-victimization of

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children resulting from sharing and re-accessing child pornography. See United States v.

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Kearney, 672 F.3d 81, 94 (1st Cir. 2012) (noting the continuing harm that results from

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the distribution and possession of child pornography). Maintaining institutional security

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and providing for the safety of patients and the public are legitimate government

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interests. Wolfish, 441 U.S. at 566; Hallstrom, 991 F.2d at 1484. These regulations serve

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a legitimate government interest.

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However, Plaintiff alleges that the regulations are overly broad and that safety

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concerns could be met with less restrictive measures. He complains that Regulation

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4350 prohibits, and would allow for the confiscation of, items that do not pose a security

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risk. Plaintiff indicates that the regulations would compel him to destroy thousands of

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irreplaceable digital files, including legal files, he has scanned.

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Additionally, Plaintiff complains that the lockdown that resulted after Regulation

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4350 was implemented impermissibly denied him access to the outside world by limiting

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access to telephones and restricting visitation.

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These claims will be addressed in turn below.
1)

Prohibition on Electronic Devices and Storage

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Plaintiff alleges that some of the items prohibited by Regulation 4350 do not pose

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security risks and that less restrictive methods could be used to alleviate legitimate

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security concerns. Examples include gaming devices or MP3 players which cannot

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connect to the internet, digital recorders that copy television shows, and commercially

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packaged CDs and DVDs.

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It is not clear from the text of Regulation 4350 whether a gaming device, media

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player or digital recorder that cannot connect to the internet would be prohibited under

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the regulations. Regulation 4350 provides that “electronic devices with the capability to

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connect to a wired . . . and/or a wireless . . . communications network to send and/or

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receive information” are to be prohibited. Cal. Code Regs. tit. 9, § 4350(a). This includes,

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“Gaming devices with digital memory storage ability, the ability to access the internet, or

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the ability to play games or other media not specifically designed for the device,” Cal.

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Code Regs. tit. 9, § 4350(a)(4)(E); and “[d]igital media recording devices, including but

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not limited to CD, DVD, Blu-Ray burners,” Cal. Code Regs. tit. 9, § 4350(a)(2).

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Regulation 4350 further states, “Electronic items patients are permitted . . . . include: (1)

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One television or computer monitor (1) DVD, Blu-ray, or similar player; one (1) CD

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player; and one (1) radio or music player . . . . Tablets or other devices designed for

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confined individuals through authorized vendors.” Cal. Code Regs. tit. 9, § 4350(b)(1,3).

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The devices as described by Plaintiff cannot connect to the internet or store

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electronic data from other sources. Therefore, a plain reading of the regulatory text

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suggests they would not be banned under Regulation 4350’s prohibition against

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electronic devices that can send or receive information. See Cal. Code Regs. tit. 9, §

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4350 (a). However, these particular devices are not included on the list of items that are

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explicitly allowed. See Cal. Code Regs. tit. 9, § 4350 (b).

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Because Plaintiff is proceeding pro se, his complaint is to be construed liberally.

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Hebbe, 627 F.3d at 342. Construing the facts in favor of Plaintiff, allegations that these

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devices would be banned is sufficient to state a claim. Prohibiting devices that are

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unable to connect to the internet and unable to store electronic data may be beyond the

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scope of the legitimate government interest and thus “excessive in relation to the

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alternative purpose.” Jones, 393 F.3d at 932. Therein lies a cognizable claim.

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Plaintiff also alleges that he will be denied access to digital media such as

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commercially manufactured CDs and DVDs, and that these items do not pose a security

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risk because they cannot be recorded over and therefore cannot be used to facilitate the

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transfer or storage of contraband digital material.

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Regulation 4350 allows patients no more than thirty commercially manufactured

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CDs and DVDs in factory-original packaging in a patient's room or unit storage;

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additional manufactured disks may be stored in off-unit storage. Cal. Code Regs. tit. 9, §

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4350 (b)(2). Legally purchased commercial disks would not appear to pose a security

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risk. The facts currently before the Court do not include any justification for prohibiting

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the number of disks that can be stored onsite. Thus, the allegation that the restriction is

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more than necessary or appropriate to prevent illicit electronic storage of digital

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contraband is sufficient at this stage of the proceedings to state a cognizable claim.

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2)

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Scanned Digital Documents

Plaintiff alleges that Regulation 4350 will require him to destroy thousands of
digital files that are irreplaceable, including confidential legal material.

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Regulation 4350 provides that:

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patients who are currently in personal possession of . . . any of the contraband
items . . . may grant permission to the Department for the item to be reviewed for
illegal material . . . . If consent is granted by the patient and there is no illegal
material found on the contraband items set forth in subsection (a), the item shall
be mailed to a location designated by the patient. If consent is not granted by the
patient to search the contraband items set forth in subsection (a), the hospital
shall destroy the contraband item.

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Cal. Code Regs. tit. 9, § 4350(e).
Regulation 4350 does give individual hospitals the discretion to permit onsite

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storage of legal and therapeutic material in digital format and to allow inmates
supervised access to such material. Cal. Code Regs. tit. 9, § 4350(d). However, there is
no indication that Coalinga has or will exercise that discretion in that way.1 If it does not,
Plaintiff must ship all his stored digital data to a third party or have it destroyed.
In the Notice of Emergency Amendments, DSH justifies the regulation and its

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procedure by noting: It lacks the manpower to review each copied disk for contraband
on an ongoing basis. (See ECF No. 1, Ex. A at 37). Even if an item were initially
searched and found lacking in contraband, there is nothing to prevent a patient from
later copying illicit material on to it. DSH would not be able to search the disk without
probable cause. (Id.) DSH does not have the resources to enable it to seek and secure
search warrants with sufficient regularity to prevent the abuse it has experienced to date.
(Id. at 37-38.) In short, any onsite unsupervised storage of digital documents would allow

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Plaintiff’s complaint referred to a similar provision contained in the proposed regulations that would
permit storage of non-contraband material on site after a search; however, this provision was not adopted
in the final regulatory text. (See ECF No. 1, Ex. 1 at 46) (providing under Cal. Code Regs. tit. 9, § 4350(e)
that items could be stored onsite after a search). 11

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for the potential presence of digital contraband not capable of being found in a standard

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room search. The restriction is reasonably related to the legitimate government interest

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of preventing patients from storing illicit digital material and preventing the very abuses

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which have recently been uncovered.

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The Court has grave concerns about the potentially devastating effect of forcing a

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detainee to put all of his legal materials in the hands of a third party or see them

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destroyed.2 The regulatory procedure essentially presumes each detainee has a reliable,

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technologically adept, third party willing to assume the time, trouble, potential expense,

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and responsibility of faithfully maintaining, retrieving and providing to the detainee hard

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copies of items in the detainee’s legal files on request. In practice, however, the

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availability of such a person is unlikely, if not nonexistent. Forfeiture of all of one’s legal

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documents would be a very high price to pay for the inability to find such a person. But

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even if a proper custodian were located, the Court can anticipate that the difficulties and

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pitfalls of such a retrieval system would doom it to failure. At best each detainee would

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have to recall what he had stored and where it was stored and specifically request it and

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then await its retrieval and delivery via hard copy to him. Absent such specificity in

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memory and request, the third party would have to conduct a search by topic or

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procedural issue, a challenging and questionably successful undertaking for a person

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without legal training. Such procedures and the associated pitfalls pose a very real risk

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of significantly impeding one’s access to the Courts, perhaps even frustrating it

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completely. Of course, the alternative of destroying ones complete legal files

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(accumulated electronically at the direction of DSH) could, and likely would, do

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irreparable damage to ones pursuit of legal relief.

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By "legal materials," "legal files," and "legal documents," the Court assumes that Plaintiff refers to all
pleadings and other papers relating to his detention or prior incarceration, challenges to it, and other
constitutional challenges to his plight. Cf. Lewis v. Casey, 518 U.S. 343, 354 (1996) (limiting the availability
of access to courts claims to direct criminal appeals, habeas petitions, and civil rights actions). The Court's
above-expressed concern about depriving a detainee of such materials does not extend to personal
materials. While perhaps third party maintenance or even destruction of personal photos and information
is unfortunate, it does not create the threat to detainees’ valuable Constitutional rights.
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The substantive due process analysis requires the Court to determine whether the

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regulation is “excessive in relation to its non-punitive purpose or is employed to achieve

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objectives that could be accomplished in so many alternative and less harsh methods[.]”

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Jones, 393 F.3d at 934 (citations and internal alterations omitted). In this regard, the

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Court is particularly mindful of the significant interests at stake in limiting, or eliminating,

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Plaintiff’s access to legal materials. As discussed below, the allegations are presently

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insufficient to state an access to courts claim because Plaintiff has yet to suffer an actual

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injury. See Lewis v. Casey, 518 U.S. 343, 351 (1996) (finding that an access to courts

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claim requires an actual injury). But the denial alleged here is so overarching, and so

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possibly complete, that a plaintiff may be foreclosed from meeting that burden because

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he may be divested of documents needed to show his loss. At the pleading stage, the

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Court concludes that these factors are sufficient to make Regulation 4350 excessive in

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relation to its non-punitive purpose. At present, the Court is unconvinced that DSH’s

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legitimate objectives could not be accomplished with less harsh methods and results.

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Accordingly, the Court finds that Plaintiff has raised sufficient questions to allow
the claim to go forward and to require Defendants to respond.
3)

Lockdown Restrictions

Plaintiff alleges that after Regulation 4350 was implemented Coalinga was put on
lockdown status and he was denied access to phone calls and outside visitors.

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The Supreme Court has upheld a variety of restrictions on visitation for detained

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and incarcerated individuals (including denials of contact visitation, as well as limitations

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on the people allowed to visit detained individuals) against First, Eighth, and Fourteenth

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Amendment challenges. Overton v. Bazzetta, 539 U.S. 126, 133 (2003). Pretrial

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detainees also do not have a right to unfettered visitation. See Block v. Rutherford, 468

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U.S. 576, 585-89 (1984) (upholding a blanket prohibition on contact visitation for pretrial

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criminal detainees as reasonably related to a legitimate government interest in security).

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District courts have applied these standards to individuals detained under the SVPA,

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including those awaiting commitment. See e.g., Marentez v. Baca, 2012 U.S. Dist.

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LEXIS 185472, *22 (finding that restrictions on plaintiff's visits with his attorney were not

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punitive when those restrictions reasonably related to legitimate government interests);

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Force v. Hunter, No. CV 05-02534 SGL (RZ), 2009 U.S. Dist. LEXIS 68497, at *10 (C.D.

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Cal. June 23, 2009) (finding no violation on a policy that limited access visitation from

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minor relatives); Rainwater v. McGinniss, 2012 U.S. Dist. LEXIS 113963, 2012 WL

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3308894, at *13 (E.D. Cal. Aug. 13, 2012) (granting summary judgment in favor of jail

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officials on an SVPA detainee's substantive due process claim challenging "visits from

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outsiders being conducted through glass"). Similarly, deprivation of access to the

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telephone, on its own, does not give rise to a constitutional violation. See e.g., Haynes v.

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Sisto, Civ. No. S-08-2177 2010 WL 2076970 (E.D. Cal. May 24, 2010) (concluding that

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4.5 month deprivation of “access to telephone calls and visitors” did not state an Eighth

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Amendment claim); Rainwater, No. 2:11-cv-0030 GGH P, at *38.

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However, lack of access to any means of communicating with people outside of

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the institution may be unconstitutional. See Overton, 539 U.S. at 135 (suggesting that

16

access to alternatives was part of justification for concluding visitation restrictions were

17

constitutional); Ashker v. Brown, No. C 09-5796 2013 WL 1435148 (N.D. Cal. April 9,

18

2013) (concluding that “prolonged social isolation,” which included lack of telephone

19

access and contact visits, met objective prong of Eighth Amendment test). Only where

20

all visitation privileges have been revoked permanently or for a substantial period of time

21

will the deprivation take on constitutional proportions. See Overton, 539 U.S. at 130;

22

Dunn v. Castro, 621 F.3d 1196, 1204 (9th Cir. 2010).

23

The length of time a deprivation continues is relevant to determining whether the

24

deprivation amounts to punishment. See Pierce v. Cty of Orange, 526 F.3d 1190, 1212

25

(9th Cir. 2008) (criminal detainee’s length of stay in jail was one factor in determining

26

whether Fourteenth Amendment violation had occurred); Sisneroz v. Whitman, No. CV F

27

01-5058 2008 WL 4966220, at *9 (E.D. Cal. Nov. 20, 2008) (finding that “constitutional

28

14

1

deprivation arises from systematic, substantial deprivation” and that some amenities

2

“may be unavailable [to SVPs] for short periods of time for various reasons” without

3

taking on constitutional proportions).

4

Plaintiff submitted this action shortly after the lockdown commenced. (ECF No. 1

5

at 17) (stating lockdown commenced January 13, 2018); (ECF No. 1 at 30) (complaint

6

dated January 19, 2018). There is nothing in the complaint to suggest the lockdown is

7

intended to be permanent or run for a substantial period of time. Temporary prohibitions

8

on access to phone calls and visitation do not amount to confinement conditions that

9

amount to punishment. Absent additional facts to suggest a more substantial

10

deprivation, the allegations fail to state a claim. Plaintiff will be given leave to amend.

11

C.

12

Plaintiff may also be intending to claim that his Fourteenth Amendment procedural

13

Procedural Due Process

due process rights are violated by the confiscation of his electronic devices.

14

Procedural due process under the Fourteenth Amendment protects individuals

15

from the deprivation of property without due process of law. U.S. Const. amend. XIV, §

16

1. The Ninth Circuit has not addressed the precise standard to be applied to procedural

17

due process claims brought by civil detainees, however they have found that “individuals

18

detained under the SVPA must, at a minimum, be afforded the rights afforded prisoners

19

confined in a penal institution.” Hydrick 500 F.3d 978, 998 (9th Cir. 2007). District Courts

20

have applied the same procedural due process standards for prisoners to civil detainees

21

and those awaiting commitment proceedings. See e.g., Kitchens v. Pierce, 527 F. App'x

22

657, 659-660 (9th Cir. 2013); Koch v. King, No. 1:15-cv-00438 SKO (PC), 2017 U.S.

23

Dist. LEXIS 5027 (E.D. Cal. Jan. 11, 2017); Cerniglia v. Price, No. 1:17-CV-00753-AWI-

24

JLT PC, 2017 WL 4865452 (E.D. Cal. Oct. 27, 2017); Allen v. King, No. 1:06-cv-01801-

25

BLW-LMB, 2016 U.S. Dist. LEXIS 108748 (E.D. Cal. Aug. 16, 2016); Smith v. Ahlin, No.

26

1:16-cv-00138-SKO (PC), 2016 U.S. Dist. LEXIS 141587 (E.D. Cal. Oct. 12, 2016);

27
28

15

1

Johnson v. Knapp, No. CV 02-9262-DSF (PJW), 2008 U.S. Dist. LEXIS 125001, at *14

2

(C.D. Cal. Dec. 17, 2008).

3

The Due Process Clause protects prisoners from being deprived of property

4

without due process of law, Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 41 L.

5

Ed. 2d 935 (1974), and prisoners have a protected interest in their personal property.

6

Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). An authorized, intentional deprivation

7

of property is actionable under the Due Process Clause. See Hudson v. Palmer, 468

8

U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.

9

Ct. 1148, 71 L. Ed. 2d 265 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985).

10

An authorized deprivation is one carried out pursuant to established state procedures,

11

regulations, or statutes. Logan, 455 U.S. at 436; Piatt v. MacDougall, 773 F.2d 1032,

12

1036 (9th Cir. 1985) see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th

13

Cir.1987). Authorized deprivations of property are permissible if carried out pursuant to a

14

regulation that is reasonably related to a legitimate penological interest. Turner v. Safley,

15

482 U.S. 78, 89 (1987).

16

To have a property interest, Plaintiff must demonstrate "more than an abstract

17

need or desire for it. ... He must, instead, have a legitimate claim of entitlement to it"

18

under state or federal law. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

19

The question presented is whether an individual awaiting civil commitment has a

20

property right to items in his possession that were once, but no longer, authorized, where

21

Plaintiff is allowed to transfer those items to a third party of his choosing outside the

22

institution. The Ninth Circuit has not yet reached this issue. However other courts have

23

found that “while an inmate's ownership of property is a protected property interest that

24

may not be infringed upon without due process, there is a difference between the right to

25

own property and the right to possess property while in prison." Searcy v. Simmons, 299

26

F.3d 1220, 1229 (10th Cir. 2002) (quoting Hatten v. White, 275 F.3d 1208, 1210 (10th

27

Cir. 2002)). Thus, courts have found that when property policies are revised to prohibit

28

16

1

items but inmates and detainees are allowed to store the items outside of the institution,

2

no property interest is implicated and no process is due. See e.g., Graham v. Sharp,

3

Civil Action No. 10-5563 (SRC), 2011 U.S. Dist. LEXIS 66675, at *45 (finding no

4

constitutionally-recognized property interest for civil detainees in the continued

5

ownership of previously authorized electronic devices in the face of newly implemented

6

regulations that would prohibit and confiscate these devices); Davis v. Powers, No. C08-

7

5751 FDB/KLS, 2010 U.S. Dist. LEXIS 52067, at *27 (W.D. Wash. Apr. 16, 2010)

8

(finding no property interest when a television had to be mailed home because it was in

9

conflict with regulations); Trenton v. Schriro, No. CIV 06-2905-PHX-MHM (DKD), 2007

10

U.S. Dist. LEXIS 65376, at *4-5 (D. Ariz. Aug. 31, 2007) (no property right for previously

11

allowed typewriter where plaintiff had the option to mail it home rather than have it

12

confiscated); Dunbar v. A.D.O.C., No. CV 08-420-PHX-SMM (MEA), 2008 U.S. Dist.

13

LEXIS 40848, at *11 (D. Ariz. May 12, 2008) (finding no property right deprivation for

14

confiscation of a television pursuant to prison regulations); see also Knight v.

15

Yarborough, No. CV 03-01210-AG (VBK), 2011 U.S. Dist. LEXIS 113710, at *54 (C.D.

16

Cal. Aug. 22, 2011) (noting that “[i]nmates do not have a constitutional right to keep, or

17

to dispose of contraband materials as they wish.”).

18

Here, although Plaintiff would be denied the immediate possession of

19

noncompliant property onsite, he can mail it, if free of illicit material, to a location of his

20

choice. See Cal. Code Regs. tit. 9, § 4350(e). Since Plaintiff would retain ownership of

21

the items, no deprivation would have occurred, no protected property right would have

22

been implicated, and so no process would be due. See Valdez v. Rosenbaum, 302 F.3d

23

1039, 1045 (9th Cir.2002) ("Valdez did not have a state-created liberty interest in using a

24

telephone during his pretrial confinement. Accordingly, his procedural due process

25

claims fail.").

26

Finally, even if Plaintiff had a due process interest in the property at issue in

27

Regulation 4350, the process afforded appears to have been adequate. “‘Ordinarily, due

28

17

1

process of law requires [notice and] an opportunity for some kind of hearing prior to the

2

deprivation of a . . . property interest.’” Halverson v. Skagit County, 42 F.3d 1257, 1260

3

(9th Cir. 1995) (internal quotations and citations omitted). “However, when the action

4

complained of is legislative in nature, due process is satisfied when the legislative body

5

performs

6

“[G]overnmental decisions which affect large areas and are not directed at one or a few

7

individuals do not give rise to the constitutional due process requirements of individual

8

notice and hearing; general notice as provided is sufficient.” Id. at 1260-61. This appears

9

to have been met here.

its

responsibilities

in

the

normal

manner

prescribed

by

law.”

Id.

10

This claim is not cognizable as drafted. Plaintiff will be given leave to amend.

11

D.

12

Plaintiff seeks to bring claims under the Fifth Amendments’ due process

13
14

Fifth Amendment

protections and the takings clause.
a.

Due Process

15

To the extent Plaintiff intended to bring a Fifth Amendment Due Process claim,

16

“the Fifth Amendment’s due process clause applies only to the federal government.”

17

Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).

18

Plaintiff is a state civil detainee and Defendants are state officials. His due

19

process claims are properly analyzed under the Fourteenth Amendment above. They are

20

not cognizable and are not capable of cure through amendment.

21

b.

Eminent Domain

22

The Takings Clause of the Fifth Amendment provides that “private property [shall

23

not] be taken for public use, without just compensation.” U.S. Const. amend. V. The Fifth

24

Amendment on its face applies only to the federal government. However, the Takings

25

Clause was "incorporated" into the Due Process Clause of the Fourteenth Amendment,

26

Chicago Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), and

27
28

18

1

is therefore applicable to the states. Dolan v. City of Tigard, 512 U.S. 374, 384 n.5

2

(1994).

3

In order to state a claim under the Takings Clause, Plaintiff must first establish

4

that he possesses a constitutionally protected interest in the property taken. McIntyre v.

5

Bayer, 339 F.3d 1097, 1099 (9th Cir. 2003). The Takings Clause has been applied to

6

two types of governmental action, the taking of physical possession or control of property

7

for public use, and regulations prohibiting private use of property. Tahoe-Sierra

8

Preservation Counsel. Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321-22,

9

152 L. Ed. 2d 517, 122 S. Ct. 1465 (2002). In addition, a plaintiff must allege that his

10

property was taken for a public purpose. See Kelo v. City of New London, Connecticut,

11

545 U.S. 469, 477-80 (2005); Husband v. United States, 90 Fed. Cl. 29, 36 (Fed. Cl.

12

2009).

13

Finally, a plaintiff may not bring a § 1983 action alleging a takings violation unless

14

he has unsuccessfully attempted to obtain just compensation through state mechanisms.

15

Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172,

16

195 (1985). The Supreme Court has explained that "because the Fifth Amendment

17

proscribes takings without just compensation, no constitutional violation occurs until just

18

compensation has been denied. The nature of the constitutional right therefore requires

19

that a property owner utilize procedures for obtaining compensation before bringing a §

20

1983 action." Id. at 195, fn.13 (emphasis in original). California law provides an adequate

21

post-deprivation remedy for any property deprivations. Barnett v. Centoni, 31 F.3d 813,

22

816-817 (9th Cir. 1994); see Cal. Gov't Code §§ 810-895.

23

Plaintiff fails to state a cognizable claim. As noted above, this Court is unaware of

24

any authority that indicates that Plaintiff has a constitutionally protected interest in

25

electronic property when it is confiscated and removed to an off-site location of Plaintiff’s

26

choosing. See Section IV (C) supra; see also Robinson v. Joya, No. 08-1339 JLS (BLM),

27

2010 U.S. Dist. LEXIS 51649, at *8 (E.D. Cal. Apr. 28, 2010) (finding no constitutional

28

19

1

right to electronic property as required to constitute a taking under the Fifth Amendment).

2

Even assuming that Plaintiff has a constitutional interest in the property, the confiscation

3

of Plaintiff’s private property as contraband, whether authorized or unauthorized, would

4

not constitute a taking of property for a public purpose. See e.g., Rotroff v. Ahlin, No.

5

1:09-cv-02021-AWI-GSA-PC, 2010 U.S. Dist. LEXIS 74027, at *19 (E.D. Cal. July 21,

6

2010) (finding that the confiscation of a laptop from a civil detainee would not constitute

7

a public purpose under the Fifth Amendment); Hoch v. Mayberg, No. 1:10-cv-02258-DLB

8

PC, 2012 U.S. Dist. LEXIS 50288, at *8 (E.D. Cal. Apr. 9, 2012) (finding that confiscation

9

of a contraband laptop from a hospital room did not constitute a public purpose); Allen v.

10

Mayberg, No. 1:06-CV-01801-BLW-LMB, 2010 U.S. Dist. LEXIS 15350, at *21 (E.D. Cal.

11

Feb. 7, 2010) (finding that the confiscation of personal property as contraband did not

12

constitute taking property for a public purpose under the Fifth Amendment); Slider v. City

13

of Oakland, No. C 08-4847 SI, 2010 U.S. Dist. LEXIS 72443, at *23 (N.D. Cal. July 19,

14

2010) (finding that the possibly wrongful confiscation of electronics during an arrest did

15

not constitute taking property for a public purpose). Finally, Plaintiff has an adequate

16

state law remedy see Cal. Gov't Code §§ 810-895, and may not bring this action until he

17

has demonstrated that he has exhausted that remedy. Williamson, 473 U.S. at 195.

18

Plaintiff has made no such showing.

19

Plaintiff’s claim, therefore, is not cognizable. He will be given leave to amend.

20

E.

21

Plaintiff wishes to bring claims that his lack of access to the law library,

22

computers, typewriters, and the temporary denial of telephone access to legal advocates

23

amount to a violation of his right access the courts.

24

Access to Courts

The Constitution guarantees detained people meaningful access to the courts.

25

Bounds v. Smith, 430 U.S. 817, 822 (1977). This includes civil detainees. Hydrick, 500

26

F.3d at 990; Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir. 1995) (holding that "right of

27

access [to the courts] is guaranteed to people institutionalized in a state mental hospital

28

20

1

regardless of whether they are civilly committed after criminal proceedings or civilly

2

committed on grounds of dangerousness").

3

Detainees and prisoners have the right to pursue claims, without active

4

interference, that have a reasonable basis in law or fact. See Silva v. Di Vittorio, 658

5

F.3d 1090, 1103-04 (9th Cir. 2011) (finding that repeatedly transferring the plaintiff to

6

different prisons and seizing and withholding all of his legal files constituted active

7

interference) overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202,

8

1209 n.6 (9th Cir. 2015); see also Jones, 393 F.3d at 936 (applying this standard to a

9

detainee awaiting civil commitment proceedings). This right forbids state actors from

10

erecting barriers that impede the right of access to the courts of incarcerated persons. Id.

11

at 1102 (internal quotations omitted). However, in order to state a colorable claim for

12

denial of access to the courts, Plaintiff must allege that he suffered an actual injury in the

13

pursuit of the litigation of direct criminal appeals, habeas petitions, and civil rights

14

actions. Lewis, 518 U.S. at 351. "Actual injury" means a "specific instance in which an

15

inmate was actually denied access to the courts." Sands v. Lewis, 886 F.2d 1166, 1171

16

(9th Cir. 1989).

17

The right of access, furthermore, does not guarantee any "particular methodology

18

but rather the conferral of a capability — the capability of bringing contemplated

19

challenges to sentences or conditions of confinement before the courts." Phillips v. Hust,

20

588 F.3d 652, 655 (9th Cir. 2009) (quoting Lewis, 518 U.S. at 356). Similarly, a prisoner

21

claiming that his right of access to the courts has been violated due to inadequate library

22

access must show that (1) access was so limited as to be unreasonable; and (2) the

23

inadequate access caused actual injury. Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir.

24

1994).

25

Here, Plaintiff fails to allege a cognizable claim. He has not identified a “specific

26

instance” in which he was actually denied access to courts. See Sands, 886 F.2d at

27

1171. Although Plaintiff states that he has legal cases pending that are impacted by

28

21

1

Regulation 4350, as well as the limitations from the lockdown, he does not specify what

2

those legal actions are and how his ability to pursue them was injured by the facility’s

3

restrictions. Though the regulations and temporary lockdown reportedly inhibited

4

Plaintiff’s access to a computer, the law library, telephones, and paper; Plaintiff does not

5

allege facts indicating that any of these things were them necessary to his access to the

6

courts. See Phillips, 588 F.3d at 656-57 (finding that a plaintiff must show that use of a

7

computer "was necessary to allow him 'meaningful access' to the courts."). Plaintiff’s

8

claim is not cognizable as pled. He will be given leave to amend.

9
10
11

F.

Fourth Amendment

Plaintiff seeks to bring claims under the Fourth Amendment against Defendants
for violating his Fourth Amendment right to privacy.

12

The Fourth Amendment protects against unreasonable searches and seizures.

13

Prisoners "do not forfeit all constitutional perfections" due to incarceration. Wolfish, 441

14

U.S. at 545. However, the “right of privacy in traditional Fourth Amendment terms is

15

fundamentally incompatible with the close and continual surveillance of inmates and

16

their cells required to ensure institutional security and internal order.” Hudson, 468 U.S.

17

at 527-28.

18

Civil detainees have, at best, "a diminished expectation of privacy after

19

commitment to a custodial facility." Bell, 441 U.S. at 557. The Ninth Circuit has found

20

that a limited Fourth Amendment right to be free of unreasonable search and seizure

21

extends to civil detainees. Hydrick, 500 F.3d at 993; see also Kitchens, 584 F. App'x at

22

305 (9th Cir. 2014) (applying the same standards to those awaiting civil commitment

23

proceedings). A search will violate a civilly detained individual's Fourth Amendment

24

rights if it is "arbitrary, retaliatory, or clearly exceeds the legitimate purpose of detention."

25

Meyers v. Pope, 303 F. App'x 513, 516 (9th Cir. 2008); Hydrick, 500 F.3d at 993. In the

26

civil detention context, “the reasonableness of a particular search [or seizure] is

27

determined by reference to the [detention] context.'" Hydrick, 500 F.3d at 993 (quoting

28

22

1

Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988)). In the context of secure civil

2

institutions, such as at issue here, there are other concerns that mirror those that arise in

3

the prison context, e.g., "the safety and security of guards and others in the facility, order

4

within the facility and the efficiency of the facility's operations." Id. (quotations omitted).

5

Plaintiff fails to allege a cognizable claim. The facts as alleged indicate that DSH

6

regulations for searching electronic devices and storage are reasonably related to a

7

legitimate interest. Regulation 4350 would allow for Plaintiff to consent to a search and

8

non-contraband material would be sent to a location of Plaintiff’s designation. Cal. Code

9

Regs. tit. 9, § 4350(e). These searches allow for DSH to find and remove illicit digital

10

material and secure the facility. There is nothing to suggest the action is arbitrary or

11

retaliatory. Therefore, this does not constitute an unreasonable search. This claim is not

12

cognizable. Plaintiff will be given leave to amend.

13

VI.

14
15

Conclusion and Order
Plaintiff’s complaint states a cognizable substantive due process claim against

Defendants Ahlin and Price in their official capacities.

16

The remaining claims are not cognizable as pled. The Court will grant Plaintiff the

17

opportunity to file an amended complaint to cure noted defects, to the extent he believes

18

in good faith he can do so. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

19

Alternatively, Plaintiff may forego amendment and notify the Court that he wishes to

20

stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th

21

Cir. 2004) (plaintiff may elect to forego amendment).

22

Alternatively, if Plaintiff does not wish to file an amended complaint, and he is

23

agreeable to proceeding only on the claims found to be cognizable, he may file a notice

24

informing the Court that he does not intend to amend, and he is willing to proceed only

25

on his cognizable claims. The undersigned will then recommend that his remaining

26

claims be dismissed, and the Court will provide Plaintiff with the requisite forms to

27
28

23

1

complete and return so that service of process may be initiated on Defendants Ahlin and

2

Price.

3

If Plaintiff chooses to amend, he must demonstrate that the alleged acts resulted

4

in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set

5

forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678

6

(quoting Twombly, 550 U.S. at 555). Plaintiff should note that although he has been

7

given the opportunity to amend, it is not for the purposes of adding new claims. George

8

v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff should

9

carefully read this screening order and focus his efforts on curing the deficiencies set

10

forth above.

11

If Plaintiff files an amended complaint, it should be brief, Fed. R. Civ. P. 8(a), but it

12

must state what each named defendant did that led to the deprivation of Plaintiff’s

13

constitutional rights, Iqbal, 556 U.S. at 676-677. Although accepted as true, the “[f]actual

14

allegations must be [sufficient] to raise a right to relief above the speculative level. . . .”

15

Twombly, 550 U.S. at 555 (citations omitted).

16

Finally, an amended complaint supersedes the prior complaint, see Loux v. Rhay,

17

375 F.2d 55, 57 (9th Cir. 1967), and it must be “complete in itself without reference to the

18

prior or superseded pleading,” Local Rule 220.

19

Accordingly, it is HEREBY ORDERED that:

20

1.

21
22
23
24

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

2.

Within thirty (30) days from the date of service of this order, Plaintiff must:
a. File an amended complaint curing the deficiencies identified by the
Court in this order, or

25

b. Notify the Court in writing that he does not wish to file an amended

26

complaint and he is willing to proceed only on the claim found to be

27

cognizable in this order; or

28

24

1

c. Notify the Court in writing that he wishes to stand on his complaint

2

as written; and

3

2. If Plaintiff fails to comply with this order, the undersigned will recommend

4

the action be dismissed for failure to obey a court order and failure to

5

prosecute.

6
7
8
9
10

IT IS SO ORDERED.
Dated:

March 7, 2018

/s/

UNITED STATES MAGISTRATE JUDGE

11
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28

Michael J. Seng

25