Donaghe v. Lashway et al

Filing 52

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION re 50 Objections to Report and Recommendation filed by Sam Donaghe, 48 Objections to Report and Recommendation, filed by Cathi Harris, Shawn Talbot, Araceli Cabarcas, Shanon Gill, Becky Denny, Byron Eagle, John Clayton, Gordon Monk, Holli Coryell, Heather Sasha, Dorian Diaz, Elena Lopez, Justin Grimm, Patrisha Lashway, Brenda Powers, William Van Hook. Signed by Judge Robert J. Bryan. Paper copy sent to plaintiff @ SCC address. (JL)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 SAM DONAGHE, CASE NO. 3:16-cv-05973-RJB-JRC Plaintiff, v. ORDER ON REPORT AND RECOMMENDATION PATRICIA LASHWAY, et al., Defendants. 15 16 17 18 19 20 21 22 THIS ORDER comes before the Court on the Report and Recommendation (Dkt. 47) of Magistrate Judge J. Richard Creatura. The Court has considered Defendants’ Objections (Dkt. 48), Plaintiff’s Objections (Dkt. 50), and the remainder of the file herein. For the reasons discussed below, the R&R should be adopted in part and rejected in part. Facts alleged are discussed in relation to each claim. Unlike the Complaint, the Amended Complaint alleges claims against persons. Compare Dkts. 1-1, 42. The claims can be organized 23 24 ORDER ON REPORT AND RECOMMENDATION - 1 1 into three types: conditions of confinement claims, Bounds claims, and destruction of personal 2 property claims. 3 Defendants’ underlying motion seeks dismissal of the Amended Complaint for failure to 4 state a claim under Fed. R. Civ. P. 12(b)(6). The motion also seeks dismissal on several other 5 grounds: Eleventh Amendment, because the Amended Complaint alleges some claims against 6 individuals in their official capacity, respondeat superior, and qualified immunity. 7 8 9 10 A. Conditions of Confinement/14th Amendment Claims (Dkt. 42 at §§IV.A-B (Lashway), CD (Clayton), E-F (Vanhook), G-H (Talbot), I-J (Coryell), K (Lopez), L (Cabarcas), O (Eagle), P (Monk), Q (Sasha)) 1. Official capacity claims. As a threshold issue, consistent with this Court’s prior ruling (Dkt. 41 at 5) the Court 11 concurs with the R&R that claims for damages alleged against persons in their official capacity 12 should be dismissed on Eleventh Amendment grounds. Dkt. 47 at 32. 13 The remainder of the analysis in this section thus pertains only to claims for damages 14 alleged against individuals in their individual capacity or to the extent the Amended Complaint 15 alleges claims for relief other than damages against persons in their official capacity. 16 2. Claims against Defendant Lashway under theory of respondeat superior. 17 The Amended Complaint, Dkt. 42, alleges that Defendant Lashway “is liable to plaintiff . 18 . . for each of her underlying employee’s [sic] acts, actions or failures to act[.]” Dkt. 42 at 19 §IV.A.1. Elsewhere, the Amended Complaint alleges actions personal to Defendant Lashway. 20 E.g., id. at §§IV.A.2, A.6, B.3. 21 The R&R recommends that “plaintiff’s respondeat superior claim should be dismissed 22 with prejudice.” Dkt. 47 at 18. The Court concurs. Attributing actions of an employee to his or 23 her superior is “respondeat superior,” and such a theory of liability is not viable under the law, 24 ORDER ON REPORT AND RECOMMENDATION - 2 1 and should not be permitted to proceed. While the Court concurs with the Report and 2 Recommendation’s analysis concerning the claims against Defendant Lashway, see Dkt. 47 at 3 16-18, to be clear, respondeat superior is not alleged as a “claim,” but is rather alleged as one of 4 several theories of liability interwoven within two claims against Defendant Lashway that also 5 allege conduct personal to Defendant Lashway. See Dkt. 42 at §§IV.A-B. Therefore, Defendants’ 6 motion to dismiss should be granted to the extent the Amended Complaint alleges claims against 7 Defendant Lashway under a theory of respondeat superior, but the claims may otherwise 8 proceed. 9 3. Claims against defendants Clayton, Vanhook, Talbot, Coryell, Lopez, Cabarcas, Eagle, Monk, Sasha, and Lashway. 10 i. The Amended Complaint. 11 Common to defendants Clayton, Vanhook, Talbot, Coryell, Lopez, Cabarcas and 12 Lashway, the Amended Complaint alleges that Plaintiff, who is civilly detained, receives 13 unconstitutionally deficient mental health treatment in violation of substantive Due Process. 14 More specifically, it is alleged that Plaintiff participates in the Sexual Offender Treatment 15 Program (SOTP), where he receives eight to fifteen hours of mental health treatment per month, 16 whereas criminal counterparts receive twenty-nine to thirty-one hours. Dkt. 42 at §§IV.A.41, B.5, 17 C.3, C.6, D.5, E.2, E.4, E.6, F.6, G.2, G.4, G.9, H.6, I.4, I.6, I.10, J.8, J.10. K.2, K.4, K.6, L.2, 18 L.4-6, L.10. 19 20 21 22 23 24 1 The Court is cognizant that the Amended Complaint alleges different facts for official capacity claims than for individual capacity claims, see, e.g., Dkt. 42 at §§IV.C and IV.D, but in an effort to construe the pleadings in Plaintiff’s favor, alleged facts are considered in the aggregate as to each individual. For example, in §IV.C, “Official Capacity Claim Against Def. Clayton,” it is alleged that Defendant Clayton “provided Plaintiff merely eight to sixteen hours of [SOTP] each month.” This fact that is not alleged in §IV.D, “Individual Capacity Claim Against Def. Clayton,” but §IV.D refers directly to “inadequate SOTP treatment” harm caused by Defendant Clayton in his individual capacity. Id. at §IV.C.8. ORDER ON REPORT AND RECOMMENDATION - 3 1 Under the same theory that Plaintiff has been denied substantive Due Process based on 2 “more restrictive” conditions of confinement than criminal counterparts, the Amended 3 Complaint enumerates the following conditions as constitutionally insufficient against 4 defendants VanHook, Talbot, Coryell, Eagle, Monk, and Sasha: horse shoe pits with horse shoes, 5 baseball fields with baseball equipment, untethered weight lifting equipment, outside handball 6 courts, outside volleyball sand pits, library services, 8 (eight) hour visitations, overnight conjugal 7 visits, overnight family visits, video internet visits, email services, “bio-metric communication 8 services,” vendor access, and facility store access. Id. at §§IV.E.8, F.4, G.13, H.2, H.5, O.4, P.4, 9 Q.2, R.2. The Amended Complaint does not articulate how each of these enumerated items is 10 11 deficient in comparison to criminal counterparts. Finally, the Amended Complaint alleges that defendants VanHook, Talbot, Coryell, and 12 Sasha denied Plaintiff access to “TV-14 Mature or Higher” media, whereas criminal counterparts 13 are held to less restrictive limitations on their media usage. Dkt. 42 at §§IV.E.16, G.14, J.2, J.6, 14 J.7, Q.2. It is further alleged that “SOTP professional standards or SOTP empirical data does not 15 support the therapeutic need” to limit such media. Id. at §IV.G.15. 16 It is necessary to correct course on the authority relevant to resolving the motion. This 17 Court, along with the Magistrate Judge and Plaintiff, have probably relied too heavily on Jones v. 18 Blanas, 393 F.3d 918 (9th Cir. 2004). Jones applies to persons who are detained for purposes of 19 trial, known in the criminal context as “pretrial,” and they are detained to adjudicate the issue of 20 involuntary civil commitment. Jones at 931-32. In this case, there is no allegation that Plaintiff 21 was detained for purposes of trial, so Jones should be applied cautiously. The comparison in 22 conditions of confinement between civilly detained persons and criminally punished persons 23 originates from Youngberg v. Romeo, 457 U.S. 307 (1982), a civil detention case with a 24 ORDER ON REPORT AND RECOMMENDATION - 4 1 substantive Due Process standard that includes—but requires more than—such a comparison. 2 See Youngberg, 457 U.S. at 321-22. 3 4 ii. Substantive Due Process Standard and Discussion Civilly committed person have a substantive Due Process right to minimally adequate 5 care and treatment. Youngberg, 457 U.S. at 318-20. “In determining whether a substantive right . 6 . . has been violated, it is necessary to balance the liberty of the individual and the demands of an 7 organized society.” Id. at 320. “Persons who have been involuntarily committed are entitled to 8 more considerate treatment and conditions of confinement than criminals[.]” Id. However, [i]f 9 there is to be any uniformity in protecting these interests, this balancing cannot be left to the 10 unguided discretion of a judge or jury.” Id. To reach the proper balance, “the Constitution only 11 requires that the courts make certain that professional judgment in fact was exercised” in caring 12 for the civilly committed person. Id. Decisions, “if made by a professional, [are] presumptively 13 valid,” and liability may be imposed only when the decision is [a] substantial departure from 14 accepted professional judgment, practice, or standards[.]” Id. at 322. Stated differently, “[t]he 15 Fourteenth Amendment requires that civilly committed persons not be subjected to conditions 16 that amount to punishment . . . within the bounds of professional discretion.” Hydrick v. Hunter, 17 466 F.3d 676, 699 (9th Cir.2007) (internal citation omitted), overruled on other grounds. See 18 also, Thomas S. by Brooks v. Flaherty, 902 F.2d 250, 252 (4th Cir. 1990) 19 The issue raised by Defendants’ motion is whether Plaintiff has stated a conditions of 20 confinement claim. Applying the Youngberg standard here, the Amended Complaint states a 21 claim for relief based two alleged conditions of confinement: (1) deficient mental health 22 treatment, and (2) denial of access to TV-14 Mature media. Regarding the deficient health 23 treatment, the Amended Complaint identifies a significant disparity between Plaintiff’s mental 24 ORDER ON REPORT AND RECOMMENDATION - 5 1 health treatment as a civil detainee and that received by criminal counterparts, which, if true, 2 could plausibly constitute a substantial departure from accepted professional judgment. 3 Similarly, regarding the TV-14 Mature media allegations, it is alleged that Plaintiff is prohibited 4 from watching said media even though criminal counterparts can watch said content and where 5 the SOTP written policies governing Plaintiff’s therapy do not prohibit said media. These 6 allegations are sufficient to state a plausible claim for relief. 7 The remaining conditions of confinement allegations should be dismissed without 8 prejudice for failure to state a claim. Beyond alleging the defendants’ job titles and that criminal 9 counterparts have things better than Plaintiff generally, no facts are alleged particular to each 10 condition of confinement complained of that particularize the condition to each defendant and set 11 forth a plausible theory for how the condition shows a substantial departure from professional 12 standards of judgment. Instead, the remaining conditions of confinement are enumerated like a 13 holiday wishlist, without broader context. Under Youngberg, this is insufficient. The complaint 14 cannot simply allege that Plaintiff, unlike criminal counterparts, lacks a baseball field and 15 equipment; it must also allege a theory for how each named defendant’s decision to deny 16 Plaintiff a baseball field and equipment substantially departed from professional judgment. The 17 former without the latter is insufficient under Youngberg, and, as a practical matter, would render 18 this Court the de facto micromanager of a governmental institution, which is to be avoided. All conditions of confinement claims, other than those for deficient mental health 19 20 treatment and denied TV-14 Mature media access, should be dismissed for failure to state a 21 claim. 22 4. Qualified immunity. 23 24 ORDER ON REPORT AND RECOMMENDATION - 6 1 2 The R&R recommends that Defendants’ request for dismissal on qualified immunity grounds be denied as to all conditions of confinement claims. Dkt. 47 at 30-33. 3 In analyzing a qualified immunity defense at the pleadings stage, the Court examines the 4 plausibility of the facts alleged as to (1) violation of a constitutional right, (2) whether that right 5 that was clearly established at the time of the incident. Saucier v. Katz, 533 U.S. 194 (2001). To 6 be “clearly established,” the law must be sufficiently clear that a reasonable official would 7 understand that his or her action violates that right. Id. at 201. While courts must look to 8 standards and precedent to determine the second prong, it is not necessary that a previous case 9 have been decided on exactly the same facts. See McCarthy v. Barrett, 804 F. Supp. 2d 1126, 10 11 1143–44 (W.D. Wash. 2011). Applied here, qualified immunity should not bar claims for deficient mental health 12 treatment. The Court has assessed the plausibility of this claim, alleged as a constitutional right, 13 so the key question is whether the right to adequate mental health treatment is clearly 14 established. Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir.2000) answers the question in the 15 affirmative. In Sharp, the court reaffirmed “the appropriate legal standard for analyzing the 16 constitutionality” of a mental health treatment program for civilly detained persons: 17 18 [The Fourteenth Amendment Due Process Clause requires states to provide civillycommitted persons with access to mental health treatment that gives them a realistic opportunity to be cured and released . . . more considerate . . . than criminals whose conditions of confinement are designed to punish. 19 Sharp, 233 F.3d at 1172 (internal quotations and citations omitted). Sharp is directly on point 20 and defeats qualified immunity at this juncture. To this extent, Defendants’ motion should be 21 denied without prejudice. 22 Qualified immunity should, however, bar the claim for denied access to TV-14 Mature 23 media brought on substantive Due Process grounds. The Court is aware of no clearly established 24 ORDER ON REPORT AND RECOMMENDATION - 7 1 constitutional right to TV-14 Mature content. Plaintiff provides no authority to the contrary. The 2 general principle that conditions of confinement for civilly detained persons should be better 3 than that for criminally incarcerated persons is not “the appropriate level of specificity,” but 4 rather, Plaintiff must establish a “more particularized and hence more relevant” constitutional 5 right. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir.2009) (internal quotations and citations 6 omitted). 7 In sum, claims challenging conditions of confinement alleged against persons in their 8 official capacity should be dismissed as to the request for damages only on Eleventh Amendment 9 grounds, and claims alleged against Defendant Lashway under a theory of respondeat superior 10 should be dismissed. All conditions of confinement claims, other than those for deficient mental 11 health treatment and TV-14 Mature media access, should be dismissed for failure to state a 12 claim. The TV-14 Mature media access claim should be dismissed on qualified immunity 13 grounds. The application for qualified immunity should be denied without prejudice as to the 14 mental health treatment claims. 15 16 B. Bounds Claims (Dkt. 42 at §§IV.M (Denny) and N (Gills)) Against defendants Becky Denny and Shannon Gills the Amended Complaint alleges 17 individual capacity claims, referred to as Bounds claims, which challenge the sufficiency of 18 Plaintiff’s access to legal resources. See Bounds v. Smith, 430 U.S. 817, 828 (1977). The claims 19 are brought under the First and Fourteenth Amendment. Dkt. 42 at §§IV.M.1, N.1. Both 20 defendants are described as “paralegals” who, in violation of Plaintiff’s constitutional rights, 21 allegedly “personally refus[ed] to provide [ ] contract attorneys” and “knew or should know 22 WDOC provides criminal counterparts with over 50 Superior Court forms . . . which [they] 23 personally chose not to provide Plaintiff[.]” Id. at §§IV.M.7, M.12. N.6, N.11. The alleged injury 24 ORDER ON REPORT AND RECOMMENDATION - 8 1 to Plaintiff is “the extended deprivation [ ] of inadequate legal forms and legal access, (2) [ ] 2 subjecting Plaintiff to civil conditions of confinement . . . more restrictive than criminal . . . 3 criminal counterparts, (3) loss of earning potential . . . and (4) . . . future Social Security 4 benefits.” Id. at §§IV.M.13, N.12. The Court previously dismissed Bounds claims in the original 5 Complaint without prejudice. Dkt. 41 at 6. 6 7 8 The R&R recommends dismissal of both claims with prejudice on the basis that the Amended Complaint does not allege an actual injury. Dkt. 47 at 27-29, 33. Well-established is the constitutional right to access courts for everyone, including 9 civilly-committed persons. Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir. 1995). The right of 10 access is grounded in the Due Process and Equal Protection clauses. Id. To ensure meaningful 11 access, institutions must provide “adequate law libraries or adequate assistance from persons 12 trained in the law.” Bounds v. Smith, 430 U.S. at 828. The right of access extends only to the 13 pleadings stage of the case, to assist with “mak[ing] a meaningful initial presentation,” Cornett, 14 51 F.3d at 898 (quoting Bounds, 430 U.S. at 825), because protecting the rights of civilly 15 committed persons “would lose meaning if they were unable to articulate their complaints to the 16 courts.” Id. (citation and quotations omitted). See also, Lewis v. Casey, 518 U.S. 343 (1996). 17 Applied here, this Court concurs with the R&R that the Amended Complaint fails to state 18 a claim as to both defendants, because the Amended Complaint does not allege a cognizable 19 injury sufficient under Cornett or Lewis. Even when generously construing the Amended 20 Complaint, the undersigned cannot find an allegation that points to the denial of access to the 21 courts. At best, the Amended Complaint alleges that constitutional violations occurred from 22 “forms deprivations regarding Plaintiff’s annual release from DSCH-SCC.” Dkt. 42 at §§IV.M.3, 23 N.3. No broader context is provided. General vagaries about disparities in the number of forms 24 ORDER ON REPORT AND RECOMMENDATION - 9 1 available to Plaintiff compared to criminal counterparts, creates only the possibility that a 2 particular form could have been necessary to articulating an initial pleading. Other than pointing 3 to this possibility, the Amended Complaint does not articulate how Plaintiff was denied access to 4 the courts. 5 Plaintiff’s Objection argues that the R&R erred by “suppl[ying] facts” and “converting” 6 the Fourteenth Amendment claims into First Amendment claims. Dkt. 50 at 5, 6. Plaintiff further 7 argues that the Amended Complaint states a claim because it alleges disparities in the legal 8 resources provided to Plaintiff and his criminal counterparts. Id. Finally, Plaintiff argues that he 9 need not allege an actual injury. 10 As to Plaintiff’s first point, a careful review of the R&R does not reveal analysis under 11 the First Amendment, but rather reliance on Bounds, Lewis, and Cornett, which concern the Due 12 Process right of access to courts. See Dkt. 47 at 27, 28. 13 As to Plaintiff’s second and third points, this Court is aware of no authority for applying 14 the general principle that providing less legal resources than “criminal counterparts,” e.g., in the 15 forms or professional legal help provided, could amount to a cognizable constitutional claim not 16 analyzed under Bounds and its progeny. As Defendants point out, it is a basic maxim of 17 constitutional law that “[i]f a constitutional claim is covered by a specific constitutional 18 provision . . . the claim must be analyzed under the standard appropriate to that specific 19 provision, not under the rubric of substantive due process.” Dkt. 51 at 4, quoting City of 20 Sacremento v. Lewis, 523 U.S. at 842-43. This is especially the case in the absence of an actual 21 injury alleged. Lewis v. Casey is instructive. That court held: 22 23 Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense. 24 ORDER ON REPORT AND RECOMMENDATION - 10 1 Lewis, 518 U.S. at 351. The court drew an analogy to an inmate complaining of inadequate 2 medical care without suffering an injury, commenting that such a parallel “would be the precise 3 analog of the healthy inmate claiming constitutional violation because of the inadequacy of the 4 prison infirmary.” Id. Plaintiff’s arguments fail. 5 The Court adopts the R&R as to dismissal of these two claims (Dkt. 42 at §§IV.M, N), 6 because they do not state a basis upon which relief can be granted. This Court rejects the R&R in 7 part, because the claims could theoretically be cured with additional factual allegations, so they 8 should be dismissed without prejudice. Because these claims are the only claims alleged against 9 defendants Denny and Gills, all claims against these defendants should be dismissed without 10 11 12 prejudice. As to these claims, the Court does not reach the issue of qualified immunity. C. Destruction of Personal Property Claims (Dkt. 42 at §§IV.S (Harris), T (Powers), and U (Diaz)) 13 The Amended Complaint alleges that Defendant Harris directed her subordinates, 14 Defendant Powers and Defendant Diaz “in the destruction of evidence in the form of the 15 computer personally purchased and owned by the Plaintiff. Dkt. 42 at §§IV.S.2, T.1, and U.2. 16 The “illegal seizure and destruction” of Plaintiff’s computer, it is alleged, violated “proper 17 procedural due process . . . under established governmental customs,” where the defendants 18 “failed to contact to the court to obtain seizure and destruction of evidence orders[.]” Id. at 19 §§IV.S.2. T.2, and U.5. It is further alleged that Plaintiff’s computer was seized “without proof 20 or evidence of the alleged unlawful act or conduct by the Plaintiff[.]” Id. at §§IV.S.2, T.2, U.5. 21 Particular to Defendant Harris, it is alleged that his conduct violated SCC policies and 22 procedures, including denial of the opportunity for a disciplinary hearing. Id. at §§IV.U.4 and 23 U.8. All three defendants are named in their individual, not official, capacity. 24 ORDER ON REPORT AND RECOMMENDATION - 11 1 2 3 The R&R recommends that these claims be dismissed with prejudice for failure to state a claim. Dkt. 47 at 20, 21, 33. “The Due Process Clause provides that certain substantive rights—life, liberty, and 4 property—cannot be deprived except pursuant to constitutionally adequate procedures[,]” 5 Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985), which are notice and an 6 opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 7 (1950). Courts employ the Mathews balancing test to determine what form of notice and hearing 8 is required to deprive a person of his or her life liberty, or property, weighing (1) the nature and 9 weight of the private interest affected by the official action, (2) the risk of erroneous deprivation, 10 and (3) the Government’s interest, including fiscal and administrative burdens. Mathews v. 11 Eldridge, 424 U.S. 319, 335 (1976). Depriving a person of his or her “property” includes 12 personal possessions. E.g., Krimstock v. Kelly, 306 F.3d 40 (2nd Cir.2002)(considering 13 sufficiency of forfeiture process for motor vehicles). 14 While the pleadings do not provide extensive factual detail, the Amended Complaint 15 alleges enough to satisfy the Iqbal standard for relief. The Amended Complaint alleges that 16 certain named defendants violated Plaintiff’s constitutional right to Due Process by seizing and 17 destroying Plaintiff’s computer without proof that Plaintiff had done that which formed the basis 18 for their conduct, which violated SCC policy. Defendants cite Cousins v. Lockyer, 568 F.3d 19 1063, 1070 (9th Cir. 2009) for the rule that §1983 liability does not arise simply from violating 20 prison policy. That is a correct statement of the law, but Plaintiff’s theory of liability goes 21 beyond the allegation that the defendants violated a policy to the allegation, constitutional in 22 essence, that that the defendants took Plaintiff’s property without any process. 23 24 ORDER ON REPORT AND RECOMMENDATION - 12 Although the defendants may have other explanations for their conduct, e.g., legitimate 1 2 treatment objectives or necessary detainment measures, at least at this stage, qualified immunity 3 should not bar these claims from proceeding. First, it does not appear that the defendants dispute 4 that Plaintiff has a property interest in possession of his personal computer, so the first 5 requirement is satisfied. Second, under Mathews and its progeny, it is clearly established that 6 “some form of hearing is required before an individual is finally deprived of a property interest,” 7 Mathews, 424 U.S. at 332, which the defendants allegedly failed to do. The Court declines to adopt the R&R as to dismissal of these two claims (Dkt. 42 at 8 9 §§IV.M, N), because they state a basis upon which relief can be granted and should not be 10 dismissed on qualified immunity grounds at this time. As to the destruction of personal property 11 claims alleged against defendants Harris, Powers, and Diaz, Defendants’ motion should be 12 denied without prejudice. *** 13 The Report and Recommendation (Dkt. 47) is ADOPTED IN PART and REJECTED IN 14 15 PART as follows: Defendants’ Motion to Dismiss (Dkt. 43) is GRANTED IN PART and DENIED IN 16 17 18 19 PART. (1) The conditions of confinements claims (Dkt. 42 at §§IV.A-L, O-Q) are:  damages. 20 21 22 DISMISSED to the extent defendants are named in their official capacity for  DISMISSED as to Defendant Lashway to the extent the Amended Complaint relies on a theory of respondeat superior. 23 24 ORDER ON REPORT AND RECOMMENDATION - 13 1  DISMISSED WITHOUT PREJUDICE for failure to state a claim, with two 2 exceptions: (a) claims for denied TV-14 Mature media access, alleged against 3 defendants Eagle, Monk, Sasha, and Grimm, are DISMISSED WITHOUT 4 PREJUDICE on qualified immunity grounds; and (2) claims for deficient mental 5 health treatment, alleged against defendants Clayton, Vanhook, Talbot, Coryell, 6 Lopez, Cabarcas, and Lashway, may proceed. 7 8 9 (2) The Bounds claims (Dkt. 42 at §§IV.M and N), alleged against defendants Denny and Gills, are DISMISSED WITHOUT PREJUDICE for failure to state a claim. (3) The destruction of personal property claims (Dkt. 42 at §§IV.S, T, and U), alleged 10 against defendants Harris, Powers, and Diaz may proceed. Qualified immunity should 11 not bar these claims from proceeding at this stage. 12 In summary, the following claims may proceed: 13  Deficient mental health treatment claims alleged against defendants 14 Clayton, Vanhook, Talbot, Coryell, Lopez, Cabarcas, and Lashway, 15 not including a) respondeat superior theory of liability as to Defendant 16 Lashway, and b) official capacity claims for damages alleged against 17 all defendants. 18 19  Destruction of personal property claims against defendants Harris, Powers, and Diaz. 20 IT IS SO ORDERED. 21 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 22 23 to any party appearing pro se at said party’s last known address. Dated this 18th day of October, 2017. 24 ORDER ON REPORT AND RECOMMENDATION - 14 1 2 3 A ROBERT J. BRYAN United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ON REPORT AND RECOMMENDATION - 15

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