ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California civil detainee proceeding with an action for violation of civil rights under 42 U.S.C. § 1983. Plaintiff's claims concern the conditions of confinement plaintiff experienced at the Sacramento County Jail between December 1997 and January 2000 while he was the subject of commitment proceedings under California's Sexually Violent Predators Act (SVPA). See Cal. Welf. & Inst. Code § 6600 et seq.*fn1 The defendants still remaining in this action are the County of Sacramento (County) and former Sacramento County Sheriff Lou Blanas. The parties' cross-motions for summary judgment are before the court. Plaintiff seeks partial summary judgment against the County as to his Fourteenth Amendment substantive due process claim. Defendants seek summary judgment as to all of plaintiff's remaining claims. Oral argument was heard with respect to the parties' motions on December 5, 2007.
I. Summary Judgment Standard
Summary judgment is appropriate when the moving party demonstrates there exists "no genuine issue as to any material fact "and that the party is entitled to" a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
II. Plaintiff's Motion For Summary Judgment (Docket Entry #144)
Plaintiff asserts he is entitled to summary judgment against the County with respect to his claim that he was denied his right to substantive due process under the Fourteenth Amendment while housed in the Sacramento County Jail, by being subjected to conditions of confinement designed for a prisoner rather than a civil detainee. See Compl. ¶¶ 52-53, 65-67 (4th and 10th causes of action).
In an order filed September 27, 2002, this court granted defendants summary judgment on plaintiff's Fourteenth Amendment claim. Approximately two years later, in Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), the Ninth Circuit reversed. In so doing, the Ninth Circuit clarified the standard under which courts must analyze claims arising under the Fourteenth Amendment brought by civil detainees challenging their conditions of confinement during commitment proceedings: a civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive. Id. at 933. A restriction is punitive when it is intended to punish or is excessive in relation to its non-punitive purpose, or is employed to achieve objectives that could be accomplished "in so many alternative and less harsh methods." Id. at 933-34. A rebuttable presumption of punitive conditions arises when an individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held or where the individual is detained under conditions more restrictive than those he or she would face upon civil commitment. Id. at 934.
The Ninth Circuit found that because plaintiff was subjected to the same, and at times the most restrictive, conditions when compared to the criminal inmates in the Sacramento County Jail, a presumption exists that plaintiff was subjected to punitive conditions. Id. With respect to the conditions he experienced while in general population, the Ninth Circuit determined that plaintiff was entitled to "more considerate" treatment than criminal inmates, id. (quoting Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)), and clarified that state law "demands a 'less harsh method' of confinement for SVPA detainees: namely, holding them separately from criminal detainees." Id. (citing Cal. Penal Code §§ 4001, 4002(a); emphasis in original). The Ninth Circuit described the conditions to which plaintiff was subjected, during his entire time at the jail, as follows:
In total, [plaintiff] was incarcerated at the Sacramento County Jail from December 3, 1997, to January 4, 2000, a period of over two years. For roughly the first year of his time at the County Jail-from December 3, 1997, to December 9, 1998-[plaintiff] was housed with the general criminal population of the Jail. For [plaintiff's] remaining time at the Sacramento County Jail-from December 9, 1998, to January 4, 2000-he was housed in an administrative segregation unit known as "T-Sep." According to the declaration of a sheriff's deputy, this is not a disciplinary housing unit. However, in T-Sep [plaintiff] was subject to far more restrictive conditions than those afforded to the general jail population. [Plaintiff's] recreational activities were completely taken away, and he was allowed only one hour of exercise every other day. Phone calls and visiting privileges were considerably more limited in TSep. The time [plaintiff] was allowed out of his cell was reduced more than tenfold. [Plaintiff] was denied access to religious services. [Plaintiff's] law library access was considerably curtailed: while in T-Sep, [plaintiff] was denied physical access to the law library; he could request, by citation only, copies of cases no more than twenty pages long.
Throughout his time at the Sacramento County Jail, [plaintiff] was subjected to numerous strip searches, some of which were conducted outdoors, and many of which were conducted at gunpoint in the middle of the night and accompanied by various intimidating tactics including poking with large weapons. On at least three occasions, Jones was led to the outside recreation area; forced at gunpoint to remove all clothing within the sight of many deputies (including female deputies); forced to lift his penis and testicles for inspection, run his fingers through his hair, then run his fingers inside his mouth; and forced to bend over, spread his buttocks apart with his hands, and cough three times.
Id. at 924. The Ninth Circuit remanded to allow defendants the opportunity to rebut the presumption of a Fourteenth Amendment violation by "demonstrat[ing] legitimate, non punitive interests justifying the conditions of [plaintiff's] confinement and . . . show[ing] that the restrictions imposed on [plaintiff] were not 'excessive' in relation to those interests." Id. at 935.
B. Whether Presumption Is Rebutted
In his motion, plaintiff argues defendants cannot rebut the presumption with respect to plaintiff's time in either general population or T-Sep.*fn2
In its opposition, the County does not seriously attempt to rebut the presumption identified by the Ninth Circuit with respect to the time plaintiff served in general population. The County does point out that during the first several days of plaintiff's residence at the Sacramento County Jail, he was still serving out his criminal sentence. Opp'n at 4:14-21. The County also offers evidence suggesting it was not aware of plaintiff's status as a civil detainee for approximately one year after his criminal sentence expired, until shortly before plaintiff was removed from general population. See Decl. of Deputy Kevin Farrell ("Farrell Decl.") ¶ 10 (docket entry # 141); see also Depo. of Kevin Farrell ("Farrell Depo.") at 110-113 & Ex. B. Plaintiff on the other hand points to evidence the County was on notice of and even has admitted knowledge of plaintiff's civil status. See Dec. 5, 2007 Letter from Pl.'s Counsel (docket entry # 176), Ex. A at 2:23-29 (County's response to request for admission no. 2). To the extent the County's knowledge of plaintiff's status is relevant, this is a question for the jury to resolve.
Regardless, the County admits that, at the time of plaintiff's admission to the jail and during his entire time in general population, there was no policy for housing those committed under the SVPA, Farrell Decl. ¶ 10; Declaration of Deputy Philip Daw ("Daw Decl.") ¶ 8; Decl. Of Sgt. Roger Dillon ("Dillon Decl.") ¶ 9, although it also says it was aware of the requirement that civil detainees be housed separately. Dillon Decl. ¶ 3. In light of the present record, the best that can be inferred is that plaintiff was placed in general population either because his status as a civil detainee did not register with those making his housing assignment, or due to the lack of a clear policy, or both.
With respect to plaintiff's assignment to "T-Sep" between December 9, 1998 and January 4, 2000,*fn3 no party has provided a copy of a policy with respect to any of plaintiff's time there. The County concedes there still was no policy at the time of plaintiff's reassignment on December 9, 1998, Dillon Decl. ¶ 9, and suggests the initial decision to place plaintiff in T-Sep was intended to separate him and provide time to figure out what to do with him next. Farrell Decl. ¶ 10; Daw Decl. ¶ 8. The County's arguments, however, appear to assume the placement at some point was confirmed based on policy considerations. For example, the County argues it satisfies the rebuttal element of "legitimate non-punitive interests" because plaintiff's confinement in T-Sep was not intended as punitive, but rather was the most appropriate assignment in light of policy considerations raised by plaintiff's prior convictions, which made him both vulnerable to attack from jail inmates and also a potential threat to certain other inmates. See Opp'n at 6:17-25; Farrell Decl. ¶ 6; Daw Decl. ¶ 19; Dillon Decl. ¶¶ 4-8.
While sex offenders, including those held against their will under the SVPA, may present unique security problems, the County fails to point to anything suggesting such problems in this case required that this plaintiff be placed in near-isolation for over a year. For example, while a civil detainee might be more likely to be attacked, the County fails to point to anything suggesting this fact alone increased the probability of attack on plaintiff in any significant respect and certainly not to the extent justifying a policy resulting in all sex offenders, including plaintiff, being placed in near-isolation. Indeed, plaintiff's first year in general population without incident suggests otherwise.
The County also argues that plaintiff's placement in "T-Sep" was necessary for another legitimate, non-punitive reason, namely the effective administration of the Sacramento County Jail. Opp'n at 7:2-9:6. The County presents evidence, largely undisputed, on the total number of cells at the jail, and the configuration of cells and housing units or "pods"; it also notes the typically high occupancy rate and the corresponding unavailability of empty cells. See Farrell Decl. ¶¶ 15-21; Daw Decl. ¶¶ 12-18. Given the high occupancy rate, and taking into account security concerns, the County argues, it did not have the flexibility to provide plaintiff with a preferential housing assignment. This lack of flexibility, it says, explains the limits on plaintiff's recreational activities and opportunities to exercise outside his cell, as well as on phone calls and visiting, and law library access. Opp'n at 8:8-20. In other words, the County asserts that the logistics of operating the Main Jail made the conditions to which plaintiff was subjected in "T-Sep" necessary, once jail staff affirmatively factored his status into their housing assignment determination. Underlying this position is the County's unsupported assumption that, because of his SVP status, plaintiff had to be kept in near-isolation from other persons housed at the jail for his protection and the protection of others.
The County also suggests that plaintiff's placement in "T-Sep" was mandated by the requirement under California law that civilly committed inmates be kept separate from criminal inmates. See Cal. Penal Code §§ 4001-4002. The Ninth Circuit, however, has determined that such a state mandate does not, by itself, trump plaintiff's Constitutional rights. See Jones, 393 F.3d at 934-35. In light of the law of this case, simply pointing to state law without also providing a local policy explaining implementation of that law in the context of the County's constitutional obligations is insufficient to overcome the presumption identified by the Circuit.
In sum, even if the County has pointed to some legitimate non-punitive interests justifying plaintiff's placement in T-Sep, it has not addressed in any meaningful way whether the resulting restrictions imposed on plaintiff were or were not excessive in relation to those interests. In other words, the County has not established a genuine issue of material fact requiring a jury's resolution as to whether it can rebut the presumption identified by the Ninth Circuit. As a matter of law, the ...