(PC) Rotroff v. Ahlin et al, No. 1:2009cv02021 - Document 34 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Defendants' 24 MOTION to DISMISS be GRANTED and that this 1 action be dismissed in its entirety, with prejudice, for failure to state a claim signed by Magistrate Judge Gary S. Austin on 7/21/2010, referred to Judge Ishii. Objections to F&R due by 8/26/2010 (Marrujo, C)
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(PC) Rotroff v. Ahlin et al Doc. 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENIS K. ROTROFF, 1:09-cv-02021-AWI-GSA-PC 12 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ MOTION TO DISMISS BE GRANTED, WITH PREJUDICE, FOR PLAINTIFF’S FAILURE TO STATE A CLAIM (Doc. 24.) Plaintiff, 13 v. 14 PAM AHLIN, et al., 15 OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 16 Defendants. 17 / 18 19 Plaintiff Denis K. Rotroff (“Plaintiff”) is a civil detainee proceeding pro se and in forma 20 pauperis in this civil rights action.1 This action proceeds on Plaintiff’s complaint, filed November 21 17, 2009, against defendants Stephen Mayberg and Pam Ahlin, and John Does 1-20, for denial of 22 freedom of expression under the First Amendment, violation of the Takings Clause under the Fifth 23 Amendment, violation of Due Process under the Fourteenth Amendment, and breach of contract, 24 stemming from the passage of a regulation which Plaintiff alleges will result in the nearly immediate 25 confiscation of his laptop computer. (Doc. 1.) 26 27 28 1 Individuals detained pursuant to California W elfare and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 1 Dockets.Justia.com 1 I. RELEVANT PROCEDURAL HISTORY 2 Plaintiff filed the complaint initiating this action on November 17, 2009, along with an 3 emergency motion for preliminary injunction to enjoin the defendants from confiscating his laptop 4 computer. (Docs. 1, 3.) On December 3, 2009, the Court directed the United States Marshal to serve 5 process upon defendants Pam Ahlin and Stephen Mayberg (“Defendants”). (Doc. 8.) On December 6 7, 2009, and March 9, 2010, Plaintiff filed a second and third motion for preliminary injunctive 7 relief. (Docs. 10, 17.) 8 On April 16, 2010, Defendants filed a motion to dismiss the complaint under Rule 12(b)(6). 9 (Doc. 24.) On May 25, 2010, Plaintiff filed an opposition. (Doc. 32.) Defendants did not file a 10 reply to the opposition, and the motion has been deemed submitted. L.R. 230(l). Defendants’ 11 motion to dismiss is now before the Court. 12 II. SUMMARY OF THE COMPLAINT 13 Plaintiff is currently a civil detainee at Coalinga State Hospital (“CSH”), where the events 14 at issue allegedly occurred. Plaintiff names Pam Ahlin (CSH Executive Director), Stephen Mayberg 15 (Director of California Department of Mental Health (“DMH”)), and John Does 1-20 as defendants. 16 Plaintiff alleges as follows. On July 28, 2006, the administration at CSH adopted 17 Administrative Directive #654 (“AD-654"), which allowed CSH patients to purchase and own 18 personal laptop computers, subject to certain rules to be followed by patients. AD-654 expressly 19 stated that rules violations would be dealt with on an individual basis. Plaintiff purchased a laptop 20 computer pursuant to AD-654. In November 2006, an amendment was made to AD-654 which 21 changed the language of the directive to state that ownership of a laptop computer was “a privilege.” 22 On October 6, 2009, during a settlement conference for Plaintiff’s prior case,2 the DMH’s 23 Legal Affairs attorney declared that “it is just too much trouble for the patients to own such devices.” 24 The attorney confirmed it is the DMH’s intention to confiscate all patient-owned computers, Sony 25 PSP playstations, and palm pilots. On October 26, 2009, the DMH adopted an emergency regulation 26 27 28 2 The Court takes judicial notice of Plaintiff’s prior civil rights action at this Court, case 1:06-cv-1419-LJODLB-PC, Rotroff v. Robinson, concerning allegations that Plaintiff’s laptop computer was impounded by officials at CSH without due process. The case was settled on October 6, 2009, at a settlement conference before Magistrate Judge Dennis L. Beck. (See Court Docket, Doc. 57.) 2 1 which declares as “contraband” all electronic devices with the capability to connect to the internet, 2 and will result in the nearly immediate confiscation of Plaintiff’s laptop computer and peripheral 3 hardware and software. The regulation, Title 9 of the California Code of Regulations, section 4350, 4 provides: 5 10 Section 4350. Contraband Electronic Devices With Communication and Internet Capabilities. Electronic devices with the capability to connect to a wired (for example, Ethernet, POTS, Fiber Optic) and/or wireless (for example, Bluetooth, Cellular, Wi-Fi [802.11a/b/g/n], WIMAX) communications network to send and/or receive information are prohibited, including devices without native capabilities that can be modified for network communication. The modification may or may not be supported by the product vendor and may be a hardware and/or software configuration change. Some examples of the prohibited devices include desktop computers, laptop computers, cellular phones, electronic gaming devices, personal digital assistant (PDA), graphing calculators and radios (satellite, shortwave, CB and GPS). 11 9 CCR § 4350 (emphasis added). No notice or hearing was afforded the Plaintiff or any of the other 12 patients at CSH. Plaintiff contends there was no “emergency,” and that patients at CSH have had 13 laptop computers for over three years without mishap or injury to the public. Plaintiff contends that 14 he and the other patients should have been notified and given the opportunity to oppose the 15 emergency regulation at a hearing. 6 7 8 9 16 17 Plaintiff requests monetary damages and declaratory and injunctive relief. III. RULE 12(b)(6) MOTION TO DISMISS 18 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 19 complaint. The first step in testing the sufficiency of the complaint is to identify any conclusory 20 allegations. Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009). “Threadbare recitals of the 21 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949 22 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] plaintiff’s obligation to 23 provide the grounds of his entitlement to relief requires more than labels and conclusions, and a 24 formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 25 (citations and quotation marks omitted). Although the court must accept well-pleaded factual 26 allegations of the complaint as true for purposes of a motion to dismiss, the court is “not bound to 27 accept as true a legal conclusion couched as a factual allegation.” Id. 28 /// 3 1 After assuming the veracity of all well-pleaded factual allegations, the second step is for the 2 court to determine whether the complaint pleads “a claim to relief that is plausible on its face.” 3 Iqbal, 129 S.Ct. at 1949, 1950 (citing Twombly, 550 U.S. at 556, 570) (rejecting the traditional 4 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A claim is facially 5 plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable 6 inference that the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 7 U.S. at 556). The standard for plausibility is not akin to a “probability requirement,” but it requires 8 “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. 9 556). 10 A. 11 Defendants argue that the complaint should be dismissed based on Plaintiff’s failure to state 12 13 DEFENDANTS’ MOTION a claim for which relief may be granted under 42 U.S.C. § 1983. 1. Article III Standing 14 Defendants argue that Plaintiff lacks standing to bring this action. “Federal jurisdiction is 15 limited to ‘actual cases and controversies.’ ” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th 16 Cir. 2009) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). “Article III standing is a controlling 17 element in the definition of a case or controversy.” Stormans Inc., 586 F.3d at 1119 (quoting Alaska 18 Right to Life Political Action Comm. v. Feldman, 504 F.3d 840, 848 (9th Cir. 2007) (alteration and 19 internal quotation marks omitted)). “[T]o satisfy Article III’s standing requirements, a plaintiff must 20 show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or 21 imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action 22 of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be 23 redressed by a favorable decision.” Stormans, Inc., 586 F.3d at 1119; Friends of the Earth, Inc. v. 24 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81(2000) (quoting Lujan v. Defenders of 25 Wildlife, 504 U.S. 555, 560-61(1992)). “A plaintiff must satisfy the injury-in-fact requirement by 26 alleging that he ‘has suffered some threatened or actual injury resulting from the putatively illegal 27 action.’” Scott v. Pasadena Unified School District, 306 F.3d 646, 656 (9th Cir. 2002) (quoting 28 O’Shea v. Littleton, 414 U.S. 488, 493 (1974)). 4 1 “The mere existence of a statute ... is not sufficient to create a case or controversy within the 2 meaning of Article III.” Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983). Rather, there 3 must be a “genuine threat of imminent prosecution.” Id. “A plaintiff may allege a future injury in 4 order to comply with this requirement, but only if he or she ‘is immediately in danger of sustaining 5 some direct injury as a result of the challenged official conduct and the injury or threat of injury is 6 both real and immediate, not conjectural or hypothetical.’” Scott, 306 F.3d at 656 (quoting City of 7 Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks and citations omitted). 8 The court must consider the facts as they existed at the time that the complaint was filed. 9 Scott, 306 F.3d at 655; Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001); see also 10 Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989) (“The existence of federal 11 jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.”); accord Lujan, 12 504 U.S. at 570 n. 4. 13 Defendants argue that Plaintiff lacks standing to contest the regulation at issue because he 14 has not shown that the threatened future injury, confiscation of his laptop computer, is “concrete and 15 particularized” and “actual or imminent, not conjectural or hypothetical.” 16 In opposition, Plaintiff argues that it is clear from the DMH’s behavior that Defendants are 17 committed to the immediate confiscation and impounding of Plaintiff’s laptop computer and other 18 devices. Plaintiff asserts that the DMH has widely distributed numerous memoranda and a statement 19 of finding of an emergency. Following the passage of the regulation, DMH issued a timetable for 20 collection of inventory, made detailed lists of what each patient owns, and provided notice to each 21 patient that property identified as contraband will be confiscated and the patient will be required to 22 donate it or send it to someone outside of the institution. Plaintiff also alleges that attorneys for the 23 DMH stated that the DMH intends to confiscate Plaintiff’s laptop computer because it causes too 24 much trouble when patients at CSH have computers. 25 The Court must consider the facts as they existed at the time the complaint was filed on 26 November 17, 2009. Taking Plaintiff’s allegations in the complaint as true, Plaintiff has not 27 established an injury in fact. The mere passage of the emergency regulation is insufficient to confer 28 standing to bring the present action. The emergency regulation was adopted on October 26, 2009, 5 1 less than a month before Plaintiff filed the present action. During that time, no action was taken to 2 enforce the regulation at issue. DMH’s distribution of a memorandum and a statement of finding 3 of emergency before the regulation was passed does not demonstrate that Plaintiff was immediately 4 in danger of direct injury through enforcement of the regulation. The expectation that Plaintiff may 5 lose possession of his computer sometime in the future, without more, does not rise to the level of 6 an injury in fact. Therefore, Plaintiff lacks standing to bring this action. 7 2. Ripeness 8 Defendants also argue that Plaintiff’s claims are not ripe for adjudication. The ripeness 9 doctrine prevents premature adjudication. Stormans Inc., 586 F.3d at 1122; Thomas v. Anchorage 10 Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000). It is aimed at cases that do not yet have 11 a concrete impact upon the parties arising from a dispute, in an analysis similar to the injury in fact 12 inquiry under the standing doctrine. Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568, 580 13 (1985); Exxon Corp. V. Heinze, 32 F.3d 1399, 1404 (9th Cir. 1994). “[A]n unripe claim is not 14 justiciable.” Association of American Med. Colleges v. United States, 217 F.3d 770, 784, fn. 9 (9th 15 Cir. 2000). 16 “[W]hen a litigant brings a preenforcement challenge, ... ‘a generalized threat of prosecution’ 17 will not satisfy the ripeness requirement.” Stormans Inc., 589 F.3d at 1122 (quoting Thomas, 220 18 F.3d at 1139). “Rather, there must be a genuine threat of imminent prosecution.” Id. (internal 19 quotation marks omitted). “There are three factors we consider when analyzing the genuineness of 20 a threat of prosecution: ‘whether the plaintiffs have articulated a “concrete plan” to violate the law 21 in question, whether the prosecuting authorities have communicated a specific warning or threat to 22 initiate proceedings, and the history of past prosecution or enforcement under the challenged [law].’” 23 Id. 24 25 Defendants argue that Plaintiff’s claims are not ripe for adjudication because the emergency regulation, while passed, has not been fully implemented. 26 Plaintiff argues that his claims are ripe because this is not an “abstract disagreement” but 27 rather a “concrete” issue regarding property that Defendants want to take away. Plaintiff argues that 28 a genuine threat of imminent prosecution is clear by Defendants’ behavior. Plaintiff points to 6 1 measures taken by the DMH, including the distribution of memoranda and a statement of finding of 2 emergency before the regulation was passed, and issuance of a timetable for collection of inventory 3 and notification to each patient that property will be confiscated and patients will be required to 4 either donate it or send it to someone outside of the institution. Plaintiff also claims that several 5 DMH staff attorneys stated in federal court that it was indeed the intent of the DMH to confiscate 6 Plaintiff’s computer, PSP gaming device, and any device which possesses a USB port. Plaintiff also 7 argues that the regulation has been implemented, because Defendants have stated that §4350 has the 8 “force and effect of law.” 9 Again, the Court must consider the facts as they existed at the time the complaint was filed 10 on November 17, 2009. Plaintiff’s laptop computer, which he owned and possessed before the 11 regulation was passed, was designated as “contraband” by the regulation. Plaintiff’s present 12 possession of contraband makes enforcement more of a threat than if he merely planned to violate 13 the law. However, Defendants had not given a specific warning or threat to initiate proceedings at 14 the time the complaint was filed. The DMH had only issued a statement of finding of emergency, 15 distributed a memorandum, and passed the regulation. A plan of implementation had not been 16 announced, and the regulation had not been enforced. Plaintiff asserts that a timetable was issued, 17 and patients were notified that their contraband will be confiscated. However, these events occurred 18 after Plaintiff filed the complaint. Therefore, even assuming that the result of the regulation and its 19 implementation is one that will directly affect Plaintiff, there was not a genuine threat of imminent 20 prosecution against Plaintiff at the time the complaint was filed, and this lawsuit is not ripe for 21 adjudication. 22 3. 23 24 Official Capacity Defendants argue that Plaintiff’s claims for damages against Defendants in their official capacity should be dismissed as barred by the Eleventh Amendment. 25 Plaintiff argues that according to the § 1983 civil rights complaint form, he was offered the 26 choice to check the box for “individual” capacity, “official” capacity, or both, allowing the court to 27 determine which capacity is appropriate. 28 /// 7 1 It is true that the Eleventh Amendment bars damages actions against state officials in their 2 official capacity. See Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); 3 Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1996); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 4 1992). However, the Eleventh Amendment does not bar suits seeking damages against state officials 5 in their personal capacity. See Hafer v. Melo, 502 U.S. 21, 30 (1991); Ashker v. California Dep’t 6 of Corrections, 112 F.3d 392, 394 (9th Cir.), cert. denied, 118 S. Ct. 168 (1997); Pena, 976 F.2d at 7 472. “Personal-capacity suits seek to impose personal liability upon a government official for 8 actions [the official] takes under color of state law. See Kentucky v. Graham, 473 U.S. 159, 165 9 (1988). Where plaintiff is seeking damages against a state official, such as in the instant action, this 10 “necessarily implies” a personal-capacity suit because an official-capacity suit would be barred. See 11 Cerrato v. San Francisco Community College Dist., 26 F.3d 968, 973 n.16 (9th Cir. 1994); 12 Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1284 (9th Cir. 1994); Price v. 13 Akaka, 928 F.2d 824, 828 (9th Cir. 1991). 14 Plaintiff brings this action for damages and injunctive relief against Defendants in both their 15 individual and official capacities. Defendants are employees of the State of California who were 16 working at CSH at the time of the alleged events. Therefore, Defendants are state officials, and 17 Plaintiff’s suit seeking damages against them in their official capacities is barred by the Eleventh 18 Amendment. 19 4. First Amendment 20 “In the civil commitment setting, a patient's liberty interests are balanced against the relevant 21 state interests to determine whether the state has violated the patient's constitutional rights. . . . 22 Challenges to prison restrictions that are asserted to inhibit First Amendment interests must be 23 analyzed in terms of the legitimate policies and goals of the corrections system. Similarly, First 24 Amendment challenges of [] policies must be analyzed in terms of the legitimate policies and goals 25 of [] treatment. . . .” Spicier v. Richards 2007 WL 4561101 (W.D.Wash. Dec 21, 2007) (NO. C07- 26 5109FDB) citing Youngberg v. Romeo, 457 U.S. 307, 318 (1982); Pell v. Procunier, 417 U.S. 817 27 (1974). 28 /// 8 1 Defendants argue that Plaintiff has not alleged sufficient facts in support of his First 2 Amendment claim or alleged any facts regarding the personal involvement of either defendant in this 3 cause of action. 4 Plaintiff argues that Defendants, both supervisors, cannot say that they were not direct 5 participants in the preparation, approval, and submission of the § 4350 regulation, and therefore 6 Plaintiff has established an actual connection as required by the court in Monell v. Department of 7 Social Services, 436 U.S. 658 (1978). 8 The Civil Rights Act under which this action was filed provides: 9 11 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 12 42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal 13 Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 14 (internal quotations omitted). 10 15 The statute plainly requires that there be an actual connection or link between the actions of 16 the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell, 436 U.S. 17 658. Under section 1983, Plaintiff must demonstrate that each defendant personally participated in 18 the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). 19 The Supreme Court recently emphasized that the term “supervisory liability,” loosely and commonly 20 used by both courts and litigants alike, is a misnomer. Iqbal, 129 S.Ct. at 1949. “Government 21 officials may not be held liable for the unconstitutional conduct of their subordinates under a theory 22 of respondeat superior.” Id. at 1948. Rather, each government official, regardless of his or her title, 23 is only liable for his or her own misconduct, and therefore, Plaintiff must demonstrate that each 24 defendant, through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. 25 at 1948-49. 26 In this action, Plaintiff has not alleged facts demonstrating that either Defendant personally 27 acted to violate his rights under the First Amendment. Plaintiff simply complains that “[T]he 28 Defendants, each of them, have deprived, and intend to permanently deprive the plaintiff of his 9 1 personal computer which serves as an important tool for personal expression.” (Cmp at 6:20-23.) 2 However, Plaintiff fails to link either Defendant with personal affirmative acts or omissions, causing 3 deprivation of his rights. Plaintiff fails to offer little more than “threadbare recitals of the elements 4 of a cause of action, supported by mere conclusory statements.” Therefore, Plaintiff fails to state a 5 claim against any defendant for violation of his rights under the First Amendment. 6 7 8 5. Fifth Amendment Takings Clause Defendants argue that Plaintiff fails to state a claim under the Fifth Amendment Takings Clause because Plaintiff has not shown that his laptop computer was taken for a public purpose. 9 Plaintiff argues that Defendants intend to blatantly violate the Takings Clause by taking 10 Plaintiff’s laptop computer without any compensation for the work product contained on the hard 11 drive. Plaintiff asserts that the Takings Clause applies in this case, whether pre- or post-taking, 12 because the intent of the government is sufficiently clear. 13 The Takings Clause of the Fifth Amendment “limits the government’s ability to confiscate 14 property without paying for it,” and “is designed to bar Government from forcing some people alone 15 to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” 16 Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir. 2003) (internal quotations and citation omitted). 17 Plaintiff's laptop computer has not been confiscated by Defendants for a public purpose, and 18 therefore Plaintiff’s Takings claim fails as a matter of law. See Kelo v. City of New London, 19 Connecticut, 545 U.S. 469, 477-80, 125 S.Ct. 2655, 2661-663 (2005). 20 6. Breach of Contract 21 Plaintiff argues that by implementing the emergency regulation, Defendants have breached 22 the contract they established with Plaintiff when they implemented AD-654. Plaintiff contends that 23 by his signature, he agreed to modifications to his computer, and such obligation requires Plaintiff 24 to adhere to the provisions of AD-654 and also requires Defendants to abide by the provisions which 25 allow him to possess his laptop computer. 26 Plaintiff’s breach of contract claim arises under state law. “To the extent that the violation 27 of a state law amounts to the deprivation of a state-created interest that reaches beyond that 28 guaranteed by the federal Constitution, Section 1983 offers no redress.” Sweaney, 119 F.3d at 1391. 10 1 However, pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 2 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the action 3 within such original jurisdiction that they form part of the same case or controversy under Article 4 III.” “[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state 5 law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 6 1997). If Plaintiff alleges a cognizable § 1983 claim, the federal court could exercise pendant 7 jurisdiction over his state claims if these were properly pleaded. 8 7. 9 Defendants argue that Plaintiff’s due process claim fails because Plaintiff has not established 10 that he has a legally protected life, liberty, or property interest in the possession of his laptop 11 computer. Defendants maintain that under Lewis v. Casey, 518 U.S. 343 (1996), prisoners do not 12 have a constitutional right to memory typewriters, and there is no distinction between the typewriters 13 in Lewis and the laptop computers in the present case. Defendants also argue that any “deprivation” 14 claimed by Plaintiff is permissible if reasonably related to a legitimate penological interest, and that 15 it has not been clearly established how much more expansive the rights of a civilly detained person 16 are than those of a criminally detained person. Defendants also argue that the mere fact that §4350 17 was passed does not even remotely implicate Plaintiff’s due process rights. Fourteenth Amendment Due Process 18 Plaintiff argues that when Defendants implemented AD-654, they established a concrete 19 property right for Plaintiff. Plaintiff argues that Lewis is inapplicable because this case does not 20 concern the implementation by the state of a policy to permit memory typewriters of a certain 21 memory capacity. 22 alternative.” Plaintiff contends that his issues are not analagous to those of a prisoner, and he is not 23 subject to the “legitimate penological interest” described in Turner v. Safely, 482 U.S. 78 (1987). 24 It is true that “[C]ivil detainees retain greater liberty protections than individuals detained 25 under criminal process, and pre-adjudication detainees retain greater liberty protections than 26 convicted ones . . . .” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations omitted). 27 Treatment is presumptively punitive when a civil detainee is confined in conditions identical to, 28 similar to, or more restrictive than his criminal counterparts, and when a pre-adjudication civil Plaintiff argues that civil detainees are entitled to the “least restrictive 11 1 detainee is detained under conditions more restrictive than a post-adjudication civil detainee would 2 face. Id. at 932-33. 3 “The law generally requires a careful balancing of the rights of individuals who are detained 4 for treatment, not punishment, against the state's interests in institutional security and the safety of 5 those housed at the facility. See, e.g. Youngberg, 457 U.S. at 319-22. In weighing those interests, 6 it cannot be ignored that, unlike the plaintiff in Youngberg who was civilly committed because of 7 mental infirmities, Sexually Violent Predators (“SVPs”) have been civilly committed subsequent to 8 criminal convictions and have been adjudged to pose a danger to the health and safety of others. 9 While the Fifth and Fourteenth Amendments prohibit a state from depriving “any person of 10 life, liberty, or property without due process of law,” it is well settled that only a limited range of 11 interests fall within this provision. A due process claim is cognizable only if there is a recognized 12 liberty or property interest at issue. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985). Liberty 13 and property interests protected by the Fifth and Fourteenth Amendments may arise from only two 14 sources, the Due Process Clause itself and the laws of the states. Board of Pardons v. Allen, 482 15 U.S. 369, 373 (1987); Wolff v. McDonell, 418 U.S. 539, 556-558 (1974). The first step in 16 examining a procedural due process question is to determine whether there is a protected interest at 17 issue. If there is no protected interest, then the procedural protections of the Due Process Clause do 18 not attach. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972); Kentucky Dept. 19 of Corrections v. Thompson, 490 U.S. 454, 460 (1989); Olim v. Wakinekona, 461 U.S. 238, 250 20 (1983). 21 It is beyond dispute that SVPs have a protected interest in their personal property. Hansen 22 v. May, 502 F.2d 728, 730 (9th Cir. 1974.) While an authorized, intentional deprivation of property 23 is actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) 24 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 25 (9th Cir. 1985), neither negligent nor unauthorized intentional deprivations of property by a state 26 employee “constitute a violation of the procedural requirements of the Due Process Clause of the 27 Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson, 28 468 U.S. at 533. 12 1 2 Because Plaintiff’s laptop computer has not been taken from him, he has not been deprived of a protected interest. Therefore, Plaintiff’s due process claim fails. 3 8. 4 Qualified Immunity Defendants argue that they are entitled to qualified immunity. Government officials 5 enjoy qualified immunity from civil damages unless their conduct violates “clearly established 6 statutory or constitutional rights of which a reasonable person would have known.” Harlow v. 7 Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). “Qualified immunity balances two 8 important interests - the need to hold public officials accountable when they exercise power 9 irresponsibly and the need to shield officials from harassment, distraction, and liability when 10 they perform their duties reasonably,” Pearson v. Callahan, 129 S.Ct. 808, 815 (2009), and 11 protects “all but the plainly incompetent or those who knowingly violate the law,” Malley v. 12 Briggs, 475 U.S. 335, 341 (1986). 13 In resolving a claim of qualified immunity, courts must determine whether, taken in the 14 light most favorable to the plaintiff, the defendant’s conduct violated a constitutional right, and 15 if so, whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001); 16 McSherry v. City of Long Beach, 560 F.3d 1125, 1129-30 (9th Cir. 2009). While often 17 beneficial to address in that order, courts have discretion to address the two-step inquiry in the 18 order they deem most suitable under the circumstances. Pearson, 129 S.Ct. at 818 (overruling 19 holding in Saucier that the two-step inquiry must be conducted in that order, and the second step 20 is reached only if the court first finds a constitutional violation); McSherry, 560 F.3d at 1130. 21 Based on the foregoing analysis, the Court finds that Plaintiff's complaint fails to state 22 any claim against Defendants for violation of Plaintiff’s constitutional rights. 23 issue of qualified immunity shall not be considered. 24 V. Therefore, the CONCLUSION AND RECOMMENDATION 25 The Court finds that Plaintiff’s complaint fails to state any claims upon which relief may 26 be granted under section 1983 against any of the defendants. Moreover, because Plaintiff lacks 27 standing to contest the regulation at issue, and this lawsuit is not ripe for adjudication, the Court 28 finds that no relief could be granted under any set of facts that could be proved consistent with 13 1 the allegations. The deficiencies outlined above are not capable of being cured by amendment, 2 and therefore further leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll 3 v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 4 Accordingly, the Court HEREBY RECOMMENDS that Defendants' motion to dismiss, 5 filed on April 16, 2010, be GRANTED, and that this action be dismissed in its entirety, with 6 prejudice, for failure to state a claim. 7 The Court further ORDERS that these Findings and Recommendations be submitted to 8 the United States District Court Judge assigned to this action pursuant to the provisions of 28 9 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States 10 District Court, Eastern District of California. Within THIRTY (30) days after being served with 11 a copy of these Findings and Recommendations, any party may file written Objections with the 12 Court and serve a copy on all parties. Such a document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Replies to the Objections shall be served 14 and filed within TEN (10) court days (plus three days if served by mail) after service of the 15 Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 16 § 636 (b)(1)©. The parties are advised that failure to file Objections within the specified time 17 may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 18 (9th Cir. 1991). 19 20 IT IS SO ORDERED. 21 Dated: 6i0kij July 21, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 14
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