Williams v. Price et al

Filing 32

FINDINGS and RECOMMENDATIONS Recommending Dismissing Certain Claims without Leave to Amend and that this Action Proceed against Defendants on the Cognizable Claims; Objections Due within Thirty (30) Days signed by Magistrate Judge Stanley A. Boone on 9/28/2018. Referred to Judge Lawrence J. O'Neill. (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,
Plaintiff,

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Case No. 1:18-cv-00102-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING CERTAIN
CLAIMS WITHOUT LEAVE TO AMEND
AND THAT THIS ACTION PROCEED
AGAINST DEFENDANTS ON THE
COGNIZABLE CLAIMS

v.

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BRANDON PRICE, et al.,

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Defendants.
(ECF No. 31)

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OBJECTIONS DUE WITHIN THIRTY
DAYS

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On January 22, 2018, Corey Williams (“Plaintiff”), a civil detainee appearing pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 filed this action. (ECF No.

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1.) On March 7, 2018, Plaintiff’s complaint was screened by the assigned magistrate judge and

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Plaintiff was ordered to either file an amended complaint or notify the Court that he wished to

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proceed on the claims found to be cognizable. (ECF No. 11.) Upon the retirement of the magistrate

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judge, this action was reassigned to the undersigned. (ECF No. 12.)

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After receiving an extension of time, Plaintiff filed a first amended complaint on April 6,

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2018. (ECF No. 17.) The Court screened Plaintiff’s complaint; and, on Apri1 8, 2018, findings

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and recommendations were filed recommending dismissing certain claims. (ECF No. 18.) On July

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19, 2018, an order was filed adopting the findings and recommendations. (ECF No. 27.) The order

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found that Plaintiff had stated a Fourteenth Amendment substantive due process condition of

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confinement claim against Pam Ahlin and Brandon Price in their official capacities relating to the

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implementation of amendments to section 4350 of Title 9 of the California Code of Regulations.

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(Id. at 18.) Plaintiff was granted leave to amend his procedural due process claim. (Id.) Plaintiff

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was ordered to either file a notice that he wished to proceed on the claims found to be cognizable

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in the first amended complaint or to file an amended complaint within thirty days. (Id.) After

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receiving an extension of time, Plaintiff filed a second amended complaint on September 20, 2018.

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(ECF No. 31.)

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I.

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SCREENING REQUIREMENT

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Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court

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determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief

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may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”

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28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e)

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applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254

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F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary

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relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district

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court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v.

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Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a

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claim). The Court exercises its discretion to screen the plaintiff’s complaint in this action to

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determine if it “i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted;

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or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

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1915(e)(2).

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In determining whether a complaint fails to state a claim, the Court uses the same pleading

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standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief. . ..” Fed. R. Civ. P. 8(a)(2).

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

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action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

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

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

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all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Although a court must accept as true all factual allegations contained in a complaint, a court need

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not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that]

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pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

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between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at

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557). Therefore, the complaint must contain sufficient factual content for the court to draw the

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reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at

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678.

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II.

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ALLEGATIONS IN SECOND AMENDED COMPLAINT

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Plaintiff is a civil detainee at Coalinga State Hospital (“CSH”) facing commitment as a

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sexually violent predator (“SVP”) under California’s Sexually Violent Predator Act (“SVPA”),

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California Welfare and Institutions Code, section 6600 et seq. (Sec. Am. Compl. (“SAC”) 1,1 ECF

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No. 31.) He is actively pursuing a college degree in mathematics. (Id.) Plaintiff brings this action

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against Brandon Price, Executive Director of CSH, and Pam Ahlin (collectively “Defendants”) in

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their personal and official capacities alleging that new revisions to section 4350 of Title 15 of the

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California Code of Regulations violate his constitutional right to own and possess certain property.

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Plaintiff’s second amended complaint is substantially identical to the first amended complaint;

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however, he has added a “comparison of conditions of confinement.” (SAC at 18-21.)

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Defendant Ahlin signed and submitted the newly revised section 4350 to the Office of

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Administrative Law, and Defendant Price is responsible for the implementation of the newly

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revised section 4350 at CSH. (SAC at 1.) Plaintiff was previously allowed to purchase and possess

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various electronic devices. (Id. at 2.) Subsequently the regulations were changed and these devices

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are now considered contraband and have been confiscated. (Id.) The regulations were purported

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All references to pagination of specific documents pertain to those as indicated on the upper right corners via the
CM/ECF electronic court docketing system.

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changed due to an epidemic of child pornography in the facility. (Id.)

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On January 12, 2018, Plaintiff received a memorandum from Defendant Price regarding an

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emergency regulation that was approved by the Office of Administrative Law. (Id. at 3.) The

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memorandum informed the patients at CSH that certain electronic devices and items were

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considered contraband and implementation of the new regulation would begin in several weeks.

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(Id. at 3-4.) The regulations make certain of Plaintiff’s devices, including multi-media players,

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mp3 music players, gaming devices such as an Xbox360 and or PSP, and graphing calculators,

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which Plaintiff has been able to possess for years, contraband. (Id. at 4-5.)

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Plaintiff alleges that confiscation of these devices denies him the right to engage in legitimate

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activities such as playing video games, listening to music, watching television shows and movies,

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and pursuing his college degree. (Id. at 5.) Pursuant to the new regulation, Plaintiff is allowed only

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one television, one radio, thirty commercial CDs, DVDs or BlueRay disks, and no graphing

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calculators or mp3 players which have no internet capability. (Id.) Plaintiff contends the section

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4350 denies him access to the courts, freedom of speech, and freedom of the press. (Id.) Plaintiff

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will not be able to digitally store documents and will be required to retain paper copies of court

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documents. (Id. at 5-6.)

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CSH is located in a rural area and external antennas are required to be removed from radios.

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(Id. at 6.) Plaintiff cannot have a television antenna attached to his window. (Id.) Plaintiff’s room

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is not fitted with any type of cable or master television distribution system and television and FM

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radio reception are virtually nonexistent. (Id.) Plaintiff relies on his multi-media players and mp3

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player for entertainment. (Id.) There are two televisions per unit in the housing area for fifty

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patients. (Id.) These televisions receive satellite service, but he cannot get 49 other people to agree

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on the programing to watch so he cannot enjoy television in the public areas. (Id.) The majority of

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physical altercations in the facility result from disagreements over the public televisions and which

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programs to watch. (Id.)

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On January 22, 2018, unidentified defendants confiscated most of Plaintiff’s personal

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property. (Id. at 8.) Not only were items within section 4350 confiscated, but food items, utensils,

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bowls, plates, papers, legal work, cords, power supplies, batteries, powder drink mixes, toiletries,

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soap, deodorant, toothpaste, toothbrushes, pens, instant coffee, and condiments were confiscated.

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(Id.) Plaintiff alleges that he should have been allowed by section 4350 to keep his Android tablet

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device, Xbox 360, and other peripheral devices such as controllers, keyboards, power supplies, and

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battery chargers, but these items were confiscated. (Id.) Plaintiff has been allowed to have certain

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property for more than a decade that is now considered to be contraband. (Id.)

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The new regulation was justified due to the “epidemic of child pornography” at CSH, however

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the regulation affects all institutions statewide. (Id. at 9.) Less than one percent of the patient

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population at CSH have been found to have engaged in the illegal activities. (Id.) Since CSH

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opened five employees have been caught in possession of child pornography. (Id. at 10.) It is not

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clear if these individuals were included in the numbers to justify the alleged epidemic of child

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pornography that is claimed to be taking place at CSH. (Id.)

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Prior to instituting the new regulation, patients were entitled to have more than one radio, one
television, one CD/DVD/BlueRay player, and 30 factory CDs/DVDs/BlueRay disks. (Id.)

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Since Defendants have taken control of his property, Plaintiff contends there is no safety and

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security concern remaining so they may not search his property for illegal material. (Id. at 10-11.)

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Plaintiff has not been engaged in criminal wrongdoing and alleges that the harm has been removed

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by the confiscation of the devices and any legitimate governmental interest has been satisfied. (Id.

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at 11.) Sgt. Jones stated that all confiscated property was booked into evidence and would be

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searched for illegal material. (Id.) Plaintiff contends that a search warrant must be sought before

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any of the confiscated property can be searched. (Id. at 11.)

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Plaintiff alleges that there was no notice of the change in the regulation to Plaintiff or other

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patients at CSH. (Id. at 12.) According to the memorandum that circulated after section 4350 had

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been amended, the emergency regulation package was submitted on December 22, 2017 without

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notice to the patients so that they could comment. (Id.) The Regulation became effective on

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January 12, 2018. (Id.)

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On January 13, 2018, the facility was placed on lock-down and Plaintiff had no access to the

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law library. (Id. at 12-13.) Plaintiff had typewriters in his unit but beginning January 13, 2018, he

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was denied use of them for his legal documents. (Id. at 13.) Plaintiff did not have any lined paper

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because he usually creates documents with a word processor and normally types or prints his

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documents. (Id.) Due to the lock down Plaintiff was not able purchase lined paper. (Id.) Plaintiff

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got paper from another patient and got assistance from another patient to prepare his claim. (Id.)

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Defendants refused to make copies for Plaintiff. (Id.) The nursing station has a copy machine but

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it is not available for patient’s use. (Id.) Staff made copies of memorandums from Defendant Price

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to the patients but would not make Plaintiff copies of his court paperwork. (Id.)

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Plaintiff has been denied telephone access for all calls. (Id. at 14.) Plaintiff was denied when

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he asked to contact his attorney and the patient advocate. (Id.) All visits were suspended due to

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the lockdown. (Id.) Due to the denial of telephone access, Plaintiff could not inform potential

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visitors that they could not visit. (Id.)

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Plaintiff was handicapped in preparing his original complaint because he did not have access

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to any cases other than those that he had memorized or stored on his electronic storage media. (Id.)

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Plaintiff did not have access to a computer or printer. (Id.) He had to rely on an outside party to

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type and print his pleading. (Id. at 14-15.) Plaintiff dictated the brief via telephone and the brief

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was typed and mailed to Plaintiff for signing. (Id. at 15.)

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Plaintiff had two other actions pending in the District Court and almost all the information

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was stored on his electronic media storage device and he no longer has possession or access to the

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data. (Id.) Plaintiff is unable to pursue these matters and may be forced to drop pursuit of them.

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(Id.)

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On January 18, 2018, Defendant Price circulated a memorandum regarding the

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implementation of the emergency regulation stating that enforcement would start on January 19,

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2018. (Id.)

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Plaintiff has been locked up for a long time and is facing an indefinite commitment and there

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is no guarantee he will ever be released. (Id. at 16.) Prior to being incarcerated, Plaintiff lived in

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Los Angeles and enjoyed excellent radio and television reception. (Id. at 17.) He did not have a

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need for multimedia players. (Id.) However, CSH is located in a rural area and reception is not

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optimal. (Id.) Further, there are local policies requiring the removal of metallic antennas from

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radios and televisions and disallowing external plastic antennas to be placed in the window to make

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reception possible. (Id.) Plaintiff is not allowed to have cable or MATV to pick up signals. (Id.)

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Plaintiff cannot possess a satellite radio. (Id.) These policies practically eliminate all personal

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channels of communication available to Plaintiff. (Id.) These conditions are punitive in nature and

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place a far greater burden on Plaintiff than those prisoners that are housed next door at Pleasant

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Valley State Prison (“PVSP”). (Id.) The prisoners at PVSP are allowed to have an MATV cable

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hookup in their cell. (Id.) They are also allowed to purchase and possess X-box 360s and Sony

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Play Station 2s as long the items are purchased from an approved vendor and the internet

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connectivity is removed. (Id.)

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Plaintiff was previously allowed to purchase X-box 360s and Play Station 2s from approved

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vendors and the new regulation allows Plaintiff to possess them. (Id. at 17.) Plaintiff was allowed

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to purchase such items at a premium price through an approved vendor. (Id. at 18.) Although the

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items are allowed by the new regulation, Defendant Price issued a memorandum on March 23, 2018

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disallowing X-box gaming systems and Play Station gaming systems. (Id.)

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Plaintiff is a college student and is pursuing a degree in mathematics. (Id.) Pursuant to the

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new regulation he is unable to have a graphing calculator. (Id.) This device has no internet

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connectivity and depriving Plaintiff of a graphing calculator has forced him to abandon his course

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work and his hopes of earning a degree in mathematics. (Id.)

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Plaintiff seeks a declaration that section 4350 violates his First Amendment rights to freedom

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of speech and freedom of the press, his Fourth Amendment right against unreasonable search and

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seizure, and is an unconstitutional taking of his property without compensation under the Fifth

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Amendment. (Id. at 22.) Plaintiff seeks an injunction to enjoin Defendants from enforcing the

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newly amended section 4350 in its entirety and to require defendants to return all confiscated

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property to Plaintiff and all similarly situated individuals. (Id. at 24.)

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III.

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DISCUSSION

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For the reasons discussed in the previous findings and recommendations and as adopted by

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the July 19, 2018 order, Plaintiff’s second amended complaint fails to state a cognizable claim for

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violation of the First, Fourth, or Fifth Amendment. (ECF No. 18 at 11-12, 13-17, 19; ECF No. 27

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at 4.) Similarly, Plaintiff is unable to seek systemwide relief to have property returned to other civil

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detainees. (ECF No. 18 at 18-19.) The Court recommends that these claims be dismissed without

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leave to amend.

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A.

Due Process Claims

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The factual allegations in the second amended complaint are virtually identical to those in the

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first amended complaint.

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recommendations for the failure to state cognizable claims. The Court will discuss the Fourteenth

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Amendments claims raised in the second amended complaint.

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1.

Accordingly, the Court adopts the May 15, 2018 findings and

Substantive due process

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Plaintiff alleges that his due process rights are violated by section 4350 because by restricting

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certain electronic devices and items he is being held in conditions more punitive than than inmates

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housed in the California Department of Corrections and Rehabilitation.

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a.

Punitive nature of regulation

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“[T]he due process clause includes a substantive component which guards against arbitrary

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and capricious government action, even when the decision to take that action is made through

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procedures that are in themselves constitutionally adequate.” Halverson v. Skagit Cty., 42 F.3d

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1257, 1261 (9th Cir. 1994), as amended on denial of reh’g (Feb. 9, 1995) (quoting Sinaloa Lake

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Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.1989)). In determining

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whether conditions of confinement of civilly committed individuals violate the constitution, courts

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look to the substantive due process clause of the Fourteenth Amendment. Youngberg v. Romeo,

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457 U.S. 307, 321-22 (1982); Jones v. Blanas, 393 F.3d 918, 931-34 (9th Cir. 2004). States are

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thus required “to provide civilly-committed persons with access to mental health treatment that

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gives them a realistic opportunity to be cured and released,” and to provide “more considerate

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treatment and conditions of confinement than criminals whose conditions of confinement are

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

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Although civilly detained persons must be afforded more considerate treatment and conditions

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of confinement than convicted defendants, where specific standards are lacking, courts may look to

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decisions defining the constitutional rights of prisoners to establish a floor for the constitutional

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rights of persons detained under a civil commitment scheme, Padilla v. Yoo, 678 F.3d 748, 759 (9th

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Cir. 2012) (citing Hydrick v. Hunter, 500 F.3d 978, 989 (9th Cir. 2007), vacated and remanded on

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other grounds by 556 U.S. 1256 (2009), and may borrow Eighth Amendment standards to do so,

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Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); Redman v. County of San Diego, 942 F.2d

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1435, 1441 (9th Cir. 1991), abrogated on other grounds by 511 U.S. 825 (1994). But the conditions

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under which civil detainees are held cannot be more harsh than those under which prisoners are

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detained except where the statute itself creates a relevant difference. Hydrick, 500 F.3d at 989 n.7.

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

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bear some reasonable relation to the purpose for which the individual is committed. Jones, 393

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F.3d at 931. However, civilly detained individuals can be subject to restrictions that have a

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legitimate, non-punitive government purpose and that do not appear to be excessive in relation to

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that purpose. Bell v. Wolfish, 441 U.S. 520, 535 (1979). “A reasonable relationship between the

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governmental interest and the challenged restriction does not require an exact fit, nor does it require

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showing a ‘least restrictive alternative.’ ” Valdez v. Rosenbalm, 302 F.3d 1039, 1046 (9th Cir.

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2002) (citations omitted). The only question is whether the defendants might reasonably have

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thought that the policy would advance its interests. Id.

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

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where it 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[.]” Jones, 393

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F.3d at 934 (citations omitted). “[A] presumption of punitive conditions arises where the individual

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is detained under conditions identical to, similar to, or more restrictive than those under which

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pretrial criminal detainees are held, or where the individual is detained under conditions more

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restrictive than those he or she would face upon commitment.” Id. This presumption can be

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rebutted by the defendants explaining a legitimate, non-punitive purpose for the conditions

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imposed. Id.

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Plaintiff alleges that due to the revisions to section 4350 he is being detained under conditions

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that are more restrictive than the conditions of prisoners in the custody of the California Department

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of Corrections and Rehabilitation. Defendants may be able to provide reasonable justification for

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the ban on the relevant devices, but at the pleading stage, Plaintiff’s allegations are sufficient to

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state a cognizable condition of confinement claim against Defendants Ahlin and Price based on the

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amendments to section 4350.

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b.

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Plaintiff also contends that the regulation is overly broad as it prohibits the possession of items

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that cannot be connected to the internet and have no wireless capabilities which is not related to the

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State’s security interest. At the pleading stage, the Court finds that Plaintiff has stated a claim that

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the regulation is overly broad based on the prohibition against devices that are not capable of being

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connected to the internet and have no memory storage capability.

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Overbreath of regulation

However, Plaintiff’s complaint fails to state any other substantive due process claims for the
reasons stated in the prior findings and recommendations.
2.

Procedural Due Process

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The Due Process Clause protects prisoners from being deprived of property without due

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process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected

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interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).

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a.

Implementation of Regulation

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Plaintiff alleges that he was denied due process because the regulation was implemented

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without notice of the change in the regulation to patients at the hospital. However, as the previous

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order found, any procedural due process requirements appear to have been met in this case. (ECF

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No. 11 at 17:27-18:9.) “Where the action complained of is legislative in nature, due process is

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satisfied when the legislative body performs its responsibilities in the normal manner prescribed by

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law.” Halverson, 42 F.3d at 1260. The regulation does not target Plaintiff or his property, but

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applies to all individuals that are detained in the Department of State Hospitals. “[G]overnmental

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decisions which affect large areas and are not directed at one or a few individuals do not give rise

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to the constitutional procedural due process requirements of individual notice and hearing; general

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notice as provided by law is sufficient.” Id. As attached to Plaintiff’s original complaint, the

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California Department of Corrections and Rehabilitation provided notice and an opportunity to

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comment on December 22, 2017. (Finding of Emergency and Emergency Regulation Text,

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attached to complaint at pp. 35-47, ECF No. 1.) Plaintiff fails to state a cognizable procedural due

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process claim based on the amendment to section 4350.

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b.

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Plaintiff alleges that his property was confiscated pursuant to the regulation in violation of

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Confiscation of Property

the due process clause.

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i.

Unauthorized deprivation of property

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Plaintiff alleges that property that was not prohibited by section 4350 was confiscated when

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officials were implementing the property restrictions in section 4350.

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unidentified officers used section 4350 to confiscate items beyond those contained within section

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4350 or the policy enacted by Defendant Price fails to state a cognizable claim. The Due Process

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Clause is not violated by the random, unauthorized deprivation of property so long as the state

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provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 533 (1984); Barnett v.

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Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). The confiscation of such property would not be

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authorized by section 4350 or by CSP policy and would therefore be a random, unauthorized

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deprivation of property for which the state provides an adequate post-deprivation remedy. Hudson,

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468 U.S. at 533 (1984); Barnett, 31 F.3d at 816-17 (California provides an adequate post deprivation

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remedy for property deprivations).

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ii.

The allegation that

Authorized deprivation of property

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An authorized, intentional deprivation of property is actionable under the Due Process Clause.

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See Hudson, 468 U.S. at 532, n.13 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982));

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Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). An authorized deprivation is one carried out

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pursuant to established state procedures, regulations, or statutes. Logan, 455 U.S. at 436; Piatt v.

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MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985) see also Knudson v. City of Ellensburg, 832 F.2d

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1142, 1149 (9th Cir.1987). Authorized deprivations of property are permissible if carried out

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

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

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The prior findings and recommendations found that Plaintiff had stated a claim that his

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electronic devices and items were confiscated pursuant to the amendment to section 4350. The

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district judge disagreed finding that, to the extent that Plaintiff had a protected property interest in

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the ownership of his electronic devices, he failed to state a claim because he was notified of the

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change in the regulation and given an adequate opportunity to comply with the regulation. (ECF

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No. 27 at 14:7-11 (quoting Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011).)

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In the institutional setting, the procedural due process clause is violated only when an agency

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“prescribes and enforces forfeitures of property ‘[w]ithout underlying [statutory] authority and

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competent procedural protections.’” Greene, 648 F.3d at 1019. Here, as discussed above, Plaintiff

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has received the process due to implement the amendment to the regulation. Therefore, Plaintiff

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fails to state a procedural due process claim based on the confiscation of property pursuant to

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amended section 4350.

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The district judge recognized a claim that was not addressed in the prior findings and

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recommendations. Plaintiff also alleges that officials confiscated electronic property that was

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allowed by section 4350 but detainees are being denied the right to possess by Defendant Price’s

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implementation letter. Liberally construed, Plaintiff is alleging that Defendant Price instituted a

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policy at CSH prohibiting items and directing that they be confiscated that are allowed to be

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possessed by civil detainees by section 4350. “The constitutional right to be heard is a basic aspect

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of the duty of government to follow a fair process of decisionmaking when it acts to deprive a

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person of his possessions.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972).

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To the extent that Defendant Price implemented such a policy it would not have been

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carried out pursuant to established state procedures, regulations, or statutes. As alleged in the

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complaint, Defendant Price instituted the policy without providing notice and an opportunity to be

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heard. The allegations here are not similar to situations in which the courts have found a post

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deprivation remedy to be adequate because the deprivation cannot be anticipated. A prior hearing

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is not required where the deprivation is beyond the control of the state. Parratt v. Taylor, 451 U.S.

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527, 541 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). The

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underlying rationale for this is that “when deprivations of property are effected through random

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and unauthorized conduct of a state employee, predeprivation procedures are simply

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‘impracticable’ since the state cannot know when such deprivations will occur.” Hudson, 468 U.S.

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at 533. Parratt is not applicable where an official is acting pursuant to a state policy and

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deliberately carrying out what appears to that official to be proper procedures. Piatt, 773 F.2d at

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1036.

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Here, Plaintiff alleges that Defendant Price implemented the policy and sent out notice

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several weeks in advance that the police would be implemented. This is not a random deprivation

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of property, but is allegedly a deprivation based on a policy that was implemented by Defendant

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Price and intentionally carried out. The Court finds that Plaintiff has stated a cognizable claim

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against Defendant Price for implementing a policy that is more restrictive than section 4350.

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The Court finds that Plaintiff has failed to state any other cognizable due process claims.

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B.

Nature of Action against Defendants

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Plaintiff again alleges that he is bringing claims against Defendants Ahlin and Price in their

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individual and official capacities. The court looks to the basis of the claims asserted and the nature

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of the relief sought to determine if the claims are asserted against the defendants in their individual

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or official capacity. Cent. Reserve Life of N. Am. Ins. Co. v. Struve, 852 F.2d 1158, 1161 (9th

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Cir. 1988).

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

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actions taken under the color of state law. Hafer v. Melo, 502 U.S. 21, 25 (1991). To state an

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individual capacity claim, the plaintiff must show that the actions of the defendant caused the

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deprivation of a federal rights. Hafer, 502 U.S. at 25.

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

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alleging that the agency’s policy or custom played a part in the violation of federal law. Hafer,

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502 U.S. at 25. Further, “[t]he Eleventh Amendment bars suits for money damages in federal court

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against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dept.

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of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007).

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As the Court has previously found, the complaint filed here does not contain any allegations

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that the named defendants engaged in any individual wrongdoing. Plaintiff alleges that the named

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defendants are responsible for implementing a policy that prohibits him from possessing certain

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electronic devices. Plaintiff is attempting to hold Defendants liable for official policies that have

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1

been implemented by the Department of State Hospitals and for acts taken in their official positions

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within the Department of State Hospitals. Additionally, Plaintiff does not seek monetary damages,

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but is seeking declaratory and injunctive relief. The allegations in the complaint state a claim

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against the defendants in their official capacities. Accordingly, the Court finds that this action

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should proceed against Defendants Ahlin and Price in their official capacities and the individual

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capacity claims should be dismissed.

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IV.

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CONCLUSION AND RECOMMENDATIONS

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Plaintiff has stated a cognizable claim against Defendants Ahlin and Price in their official

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capacity for violation of the Fourteenth Amendment, but has failed to state any other cognizable

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claims. Plaintiff was previously notified of the applicable legal standards and the deficiencies in

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his pleading and been provided with two opportunities to file an amended complaint. Despite

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guidance from the Court, Plaintiff’s second amended complaint is largely identical to the first

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amended complaint. Based upon the allegations in Plaintiff’s original, first, and second amended

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complaints, the Court is persuaded that Plaintiff is unable to allege any additional facts that would

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support any additional claims and further amendment would be futile. See Hartmann v. CDCR,

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707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when amendment

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would be futile.”) Based on the nature of the deficiencies at issue, the Court finds that further

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leave to amend is not warranted. Lopez, 203 F.3d at 1130; Noll v. Carlson, 809 F.2d 1446-1449

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(9th Cir. 1987).

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Based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

This action proceed against Defendants Ahlin and Price for substantive due process

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violations of the Fourteenth Amendment based on the allegations that the amendment

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to section 4350 is punitive in nature and the regulation is overly broad as it prohibits

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devices not capable of connecting to the internet or having memory storage

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capability; and on the procedural due process claim against Defendant Price for

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implementing a policy more restrictive than section 4350;

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2.

All other claims be dismissed without leave to amend for failure to state a claim; and

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3.

1

The individual capacity claims against Defendants Ahlin and Price be dismissed
without leave to amend.

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3

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

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

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

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recommendations with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The district judge will review the magistrate judge’s

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findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that

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

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,

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1394 (9th Cir. 1991)).

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13

IT IS SO ORDERED.

14 Dated:

September 28, 2018
UNITED STATES MAGISTRATE JUDGE

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