The opinion of the court was delivered by: PETER LEWIS, Magistrate Judge
REPORT AND RECOMMENDATION GRANTING DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S COMPLAINT AS TO THE SAN DIEGO COUNTY BOARD OF
On February 14, 2005, Plaintiff Arnold C. Bacon ("Bacon"), a
civil detainee proceeding pro se, filed a complaint
("Complaint") against Defendants William B. Kolender and the San
Diego County Board of Supervisors for violation of his civil
rights under Title 42, United States Code § 1983. (Doc. No. 1)
Defendant San Diego County Board of Supervisors ("Board") moves
to dismiss the Complaint based on Bacon's failure to allege
either facts or a theory sufficient to constitute a claim against
the Board upon which relief may be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Doc. No. 12) Upon reviewing
the Complaint, the Board's Motion to Dismiss, Bacon's Opposition
and the Board's Reply, the Court recommends that the Board's
Motion to Dismiss be GRANTED. II.
The Complaint states that Bacon is a civilly committed detainee
confined at Atascadero State Hospital pursuant to California's
Sexually Violent Predator Act ("SVPA").*fn1 (Compl. at 3A)
The events giving rise to Bacon's Complaint occurred on three
separate occassions: first, on or about March 26, 2003; then, on
or about April 4, 2003; and finally, during the period between
April 7, 2003 and September, 2003. (Compl. at 3) During these
periods of time, Bacon was transferred to and confined at San
Diego County Central Jail ("SDCCJ") and George Bailey Detention
Facility ("GBDF") for court appearances. Id. During his stay in
the two San Diego County jails, Bacon alleges that his
confinement and the conditions of his confinement resulted in
violations of his constitutional rights.
In Count One, Bacon alleges he was the victim of unreasonable
searches and seizures. (Compl. at 3) Specifically, during each
jail transfer Bacon was strip-searched numerous times within the
view of female guards. Id. Bacon claims that GBDF conducted
weekly strip searches and strip searches for punishment. Id.
Additionally, Bacon alleges that guards confiscated legal
research from his jail cell. Id.
In Count Two, Bacon claims he was denied his right to adequate
medical care. (Compl. at 4) A doctor at SDCCJ determined that
many of the medications that Bacon had been taking at Atascadero
State Hospital would no longer be provided. Id. Consequently, a
controllable itching problem resurfaced while at the jails. Id.
Additionally, Bacon claims the guards took his earplugs, citing
the jail's security measures as explanation, resulting in poor
sleeping conditions. Id. Lastly, the Complaint states that
although the doctor at SDCCJ allowed Bacon to keep possession of
his asthma inhaler, it was later taken away at GBDF never to be
returned. Id. In Count Three, Bacon alleges a denial of his right to privacy.
(Compl. at 5) First, the jailhouse staff recorded approximately
ten telephone calls made to his attorney in violation of his
right to privacy. Id. Bacon also claims a violation of his
rights when "forced to urinate, defecate, and shower where he
could be viewed by male and female guards." Id.
In Counts Four through Eight, Bacon states the housing and
treatment he endured at the jails violated his Due Process and
Equal Protection rights, his Fifth Amendment right against Double
Jeopardy, and his rights provided by the Ex Post Facto Clause
because he was treated as a convicted criminal rather than as a
civil detainee. (Compl. at 5A-5D) Bacon claims he was often
chained to criminal detainees while outside his jail cell.
(Compl. at 5A) Also, the jailhouse staff transported Bacon to
court on a bus with criminal detainees. Id. During the bus
ride, the guards placed Bacon inside a cage where criminal
detainees threatened and spat on him. Id. After arriving at
SDCCJ, Bacon notified the classification officer of his civil
detainee status and demanded not to be housed with criminal
detainees. (Compl. at 5B) In response, the officer told Bacon his
only housing choice was between "main population or protective
custody." Id. Bacon chose to be housed in protective custody
and the officer placed him in a tank module with approximately
twenty criminal detainees. Id. Bacon asserts he is "a civilian
and had no business being placed in a hostile, penal environment
where his ability to enjoy [his constitutional rights] . . . were
severely curtailed." (Compl. at 5C) Bacon complains that his
treatment in jail subjected him to "more restrictive, punitive,
and degrading conditions than other civil commitment detainees."
The Board filed an Answer to the Complaint on June 14, 2005,
the same day it filed the Motion to Dismiss. (Doc. No. 11)
Federal Rule of Civil Procedure 12 requires that a motion made
pursuant to Rule 12(b)(6) be filed prior to the filing of a
responsive pleading. FED. R. CIV. P. 12; Aldabe v. Aldabe,
616 F.2d 1089, 1093 (9th Cir. 1980). Once a party files an answer,
the appropriate procedural device is a motion for judgment on the
pleadings pursuant to Rule 12(c). FED. R. CIV. P. 12(c). Therefore, the Court will review the
motion pursuant to Federal Rule of Civil Procedure 12(c).
When Rule 12(c) is used to raise the defense of failure to
state a claim, the motion for judgment on the pleadings faces the
same test as a motion under Federal Rule of Civil Procedure
12(b)(6). McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810
(9th Cir. 1988). The complaint should not be dismissed unless "it
is clear that no relief could be granted under any set of facts
that could be proven consistent with the allegations." Id.
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). "A
judgment on the pleadings is properly granted when, taking all
the allegations in the pleading as true, the moving parties are
entitled to judgment as a matter of law." Smith v. National
Steel & Shipbuilding Co., 125 F.3d 751, 753 (9th Cir. 1997).
As with Rule 12(b)(6) motions, in addition to assuming the
truth of the facts pled, the court must construe all reasonable
inferences drawn from these facts in the plaintiff's favor. See
Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day
Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.
1989). However, vague and conclusory allegations concerning
official involvement of government in civil rights violations
will not pass muster. Ivey v. Bd. of Regents of Univ. Of
Alsaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, the court
does not have to accept as true legal conclusions couched as
factual allegations, if those conclusions cannot be reasonably
drawn from the alleged facts. Cholla Ready-Mix Inc. v. Civish,
382 F.3d 969, 973 (9th Cir. 2004).
Although Rule 12(c) does not mention leave to amend, courts
have discretion both to grant a Rule 12(c) motion with leave to
amend and to simply grant dismissal of the action instead of
entry of judgment. See Carmen v. San Francisco Unified Sch.
Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997); Moran v.
Peralta Cmty. Coll. Dist., 825 F.Supp. 891, 893 (N.D. Cal.
1993). Federal Rule of Civil Procedure 15(a) provides that leave
to amend should be freely granted when "justice so requires."
FED. R. CIV. P. 15(a); See U.S. ex rel. Lee v. SmithKline
Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). In assessing whether
leave to amend is proper, courts consider "the presence or
absence of undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the
proposed amendment." Id. (citing Moore v. Kayport Package
Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989)).
Finally, Rule 12(c) motions are improper when the court must go
beyond the pleadings to resolve an issue; such a proceeding must
properly be treated as a motion for summary judgment. FED. R.
CIV. P. 12(c). The Board's motion asserts contentions relating
solely to the sufficiency of the allegations in the Complaint. No
other evidence relevant to these contentions has been submitted
to the Court. Therefore, the motion should not be analyzed as a
summary judgment motion under Federal Rule of Civil Procedure
56(c). FED. R. CIV. P. 56(c) (Rule 56(c) analysis takes into
consideration evidence outside the pleading such as "depositions,