O'Keefe v. Cate

Filing 173

ORDER signed by Magistrate Judge Kendall J. Newman on 1/23/15 ordering within 30 days of the date of this order, defendant Belavich shall file a respons to those claims in the fifth amended complaint found potentially colorable above. Within 10 days of the date of this order, counsel for defendant Belavich shall inform the court whether they will accept service on behalf of defendants Spearman, Sirkin, Wynn, Howlin and Silva. Within 30 days of the date of this order, defendants shall file a response to the merits of plaintiff's request to be transferred to either Coalinga State Hospital or Atascadero State Hospital. The 1/29/14 findings and recommendations 116 are vacated. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY O’KEEFE,

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No. 2: 11-cv-2659 KJM KJN P

Plaintiff,
v.

ORDER

JERRY BROWN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. The instant order screens plaintiff’s fifth amended complaint.

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Background

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On January 29, 2014, the undersigned issued an order and findings and recommendations

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addressing plaintiff’s fourth amended complaint. (ECF Nos. 115, 116.) At that time, plaintiff

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was housed at California State Prison-Corcoran. In the fourth amended complaint, plaintiff

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alleged that he was not receiving adequate and appropriate care for exhibitionism, voyeurism and

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paraphilia. (ECF No. 113 at 4.) Plaintiff sought injunctive relief only.

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The undersigned ordered service of plaintiff’s individual claims, alleging that his failure to

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receive treatment for voyeurism, exhibitionism and paraphilia violated the Eighth Amendment, on

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defendants Belavich, Swift, Vasquez, Grawal, Ferguson and Salkowaltz. (ECF No. 115 at 8.)

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The undersigned recommended dismissal of the remaining claims and defendants including:
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1) plaintiff’s claims seeking systemic changes regarding the California Department of Corrections

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and Rehabilitation’s (“CDCR”) treatment of inmates with voyeurism, exhibitionism and

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paraphilia; 2) plaintiff’s claim alleging that the denial of his request for mental health care

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violated his right to due process; 3) plaintiff’s claim alleging that defendants’ failure to return him

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to the R.J. Donovan Correctional Facility (“RJDCF”) was retaliatory and violated his

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constitutional rights; and 4) all claims against defendants Governor Brown, CDCR Directors Cate

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and Beard, Higgins, Paramo, Seibel, Greenwalk, McCarthy and Shuman. (Id. at 8.)

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On February 23, 2014, plaintiff filed objections to the findings and recommendations.
(ECF No. 118.) In his objections, plaintiff stated that he was not seeking systemic changes

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regarding CDCR’s treatment of inmates with voyeurism, exhibitionism and paraphilia. (Id. at 1.)

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On September 17, 2014, plaintiff filed a notice of change of address indicating that he had

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been transferred to the Correctional Training Facility (“CTF”). (ECF No. 166.) On October 24,

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2014, the undersigned directed plaintiff to file a fifth amended complaint. (ECF No. 168)

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On November 14, 2014, plaintiff filed a fifth amended complaint. (ECF No. 171.) Based

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on this filing, the findings and recommendations addressing plaintiff’s fourth amended complaint

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are vacated. The undersigned herein screens plaintiff’s fifth amended complaint.

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Discussion

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Named as defendants are Governor Brown, CDCR Secretary Beard, CDCR Director of

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Mental Health Timothy Belavich, CTF Warden M.E. Spearman, CTF Senior Psychologist D.

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Sirkin, CTF Senior Psychologist Wynn, CTF Chief Psychologist Howlin, CTF Associate Warden

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D. Silva, CTF Captain Hoffman, CTF Correctional Counselor Heatsie and CTF Correctional

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Counselor Bonilla. (Id. at 1-2.) As in the fourth amended complaint, plaintiff seeks injunctive

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relief only.

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In claim one, plaintiff alleges that he has not received adequate treatment for paraphilia,

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voyeurism and exhibitionism at CTF, where he is incarcerated, in violation of the Eighth

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Amendment. These allegations state a potentially colorable claim for relief.1

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Plaintiff is not seeking systemic changes regarding CDCR’s treatment of inmates with
voyeurism, exhibitionism and paraphilia. Rather, he is bringing an individual claim for relief.
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The court orders service of plaintiff’s Eighth Amendment claim on defendants Belavich,

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Spearman, Sirkin, Wynn, Howlin and Silva. There are no facts indicating that defendants

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Hoffman, Heatsie or Bonilla were involved in plaintiff’s mental health care or that they could

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respond to plaintiff’s request for injunctive relief. See Colwell v. Bannister, 763 F.3d 1060, 1069

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(9th Cir. 2014). Accordingly, the undersigned separately recommends dismissal of these

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defendants.

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With regard to defendants Governor Brown and Secretary Beard, plaintiff is not seeking

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systemic changes regarding CDCR’s treatment of inmates with paraphilia, voyeurism and

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exhibitionism. Because plaintiff challenges his mental health treatment at CTF only, defendants

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Brown and Beard are not appropriate defendants. Accordingly, the undersigned separately

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recommends dismissal of these defendants.
In claim two, plaintiff alleges that defendants’ failure to transfer him to RJDCF violates

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his right to due process. Plaintiff alleges that he is from San Diego County, where RJDCF is

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located. Plaintiff alleges that his family lives in San Diego County. Plaintiff alleges that the

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California Penal Code provides that a prisoner shall be housed at a prison closest to the prisoner’s

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home.

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Prisoners do not have a constitutional right to be housed at a particular prison. See Olim

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Wakinekona, 461 U.S. 238, 245 (1983). Thus, plaintiff’s claim alleging that defendants’ failure

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to transfer him to RJDCF violates due process does not state a potentially cognizable claim for

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relief. Accordingly, the undersigned separately recommends dismissal of this claim.

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Conclusion

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Defendant Belavich has previously appeared in this action. Counsel for defendant

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Belavich is directed to inform the court within ten days whether they will accept service on behalf

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of defendants Spearman, Sirkin, Wynn, Howlin and Silva, who have not previously been served.

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In the fifth amended complaint, plaintiff requests that if treatment is not available for his

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conditions within CDCR, that he be transferred to either Coalinga State Mental Hospital or

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Atascadero State Hospital, where treatment is available. (ECF No. 171 at 15.) Defendant

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Belavich, and any other defendants who have appeared, are directed to respond to the merits of
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this request for injunctive relief within thirty days of the date of this order.

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Finally, plaintiff has been transferred several times since he filed this action. If plaintiff is

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transferred again, rather than filing an amended complaint, he may file a motion to substitute as a

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defendant the Warden of the prison to which he has been transferred. See Fed. R. Civ. P. 25.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within thirty days of the date of this order, defendant Belavich shall file a response to

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those claims in the fifth amended complaint found potentially colorable above;
2. Within ten days of the date of this order, counsel for defendant Belavich shall inform
the court whether they will accept service on behalf of defendants Spearman, Sirkin, Wynn,
Howlin and Silva;
3. Within thirty days of the date of this order, defendants shall file a response to the

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merits of plaintiff’s request to be transferred to either Coalinga State Mental Hospital or

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Atascadero State Hospital;

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4. The January 29, 2014 findings and recommendations (ECF No. 116) are vacated.
Dated: January 23, 2015

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