FINDINGS & RECOMMENDATIONS
Plaintiff, who has been civilly committed as a sexually violent predator, is proceeding pro se with a civil rights action under 42 U.S.C. § 1983. He alleges that conditions at Tehama County Jail during his periodic confinement in that facility violated his constitutional rights. Under California's Sexually Violent Predator Act, Cal. Welf. & Inst. Code §§ 6600, et seq., a person who is alleged to fall within its provisions is returned to the county of his latest criminal conviction for proceedings on a petition to have him declared to be a sexually violent predator (SVP). Cal. Welf. & Inst. Code § 6601. Until 2006, one found to fall within the statute was committed for a term of two years and so would be returned to the county in two year cycles if further petitions were filed. Cal. Welf. & Inst. Code § 6604 (2005).*fn1
In his second amended complaint, plaintiff alleges that the conditions at the jail were punitive for a variety of reasons: he was often kept in the holding cell for many hours during the booking process; he was subjected to strip searches; his mail was read; he was not allowed to order books unless he donated them to the jail and could thereafter borrow them from the library cart; there was no privacy in the shower or when using the toilet; his access to the day room and the exercise yard was restricted; the clothing provided was in poor repair; the transportation to and from Coalinga and Atascadero took an inordinate amount of time while he was restrained and padlocked to another inmate; he suffered because he was labeled an SVP; he was deprived of his high blood pressure medication on occasion; the bedding was torn; the showers were often not sanitary; his telephone calls were monitored; the law library was inadequate; the food was cold and was served to him in his cell; and his mental health needs were not addressed.
Defendant Clay Parker, Tehama County Sheriff, has filed a motion for summary judgment.
Plaintiff and two other civilly committed inmates filed this action jointly on December 19, 2003. The court severed the cases and directed plaintiff to file an amended complaint. Docket No. 5. The court found this amended complaint appropriate for service on defendant Parker and the Tehama County Board of Supervisors. Docket No. 25.
Defendants filed a motion to dismiss. This motion was granted as to plaintiff's claims against the Board of Supervisors, but plaintiff was given leave to file an amended complaint. Docket Nos. 40, 44. The second amended complaint did not name the Board of Supervisors as a defendant and modified some of the claims against defendant Parker.
Defendants challenged the second amended complaint in a second motion to dismiss. This motion was granted as to plaintiff's claims that arose from his detentions in 1996 and 1998, as to several of plaintiff's claims that were deemed duplicative, and as to plaintiff's Fifth Amendment claim. Docket Nos. 59 & 64. To the extent that plaintiff challenged conditions in 2000 and 2002, the court denied the motion without prejudice to renewal upon a more fully developed factual record.
Defendant Parker filed his answer on June 6, 2008 and has now filed the pending motion.
II. The Statute of Limitations
Defendant renews his statute of limitations argument as to plaintiff's claims arising from conditions in 2000 and 2002. In support of this argument, he asks the court to take judicial notice of records in Sumahit v. Parker, Civ. No. S-01-0181 DFL DAD P. This request is appropriate and will be granted. Estate of Blue v. County of Los Angeles, 120 F.3d 982, (9th Cir. 1997).
Because section 1983 does not contain a statute of limitations, federal courts apply the forum state's statute of limitations for personal injury actions and incorporate the forum state's law of tolling, both statutory and equitable, unless it is inconsistent with federal law. Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th Cir. 2007), cert. denied, __ U.S. __, 128 S.Ct. 669 (2007). As of January 1, 2003, California's statute of limitations for personal injury actions is two years; before that, it was a year. Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1. However, because the amended statute is not retroactive, "any cause of action that was more than one-year old as of January 1, 2003 would be barred under the previous one-year statute of limitations." Canatella, 486 F.3d at 1132-33. A cause of action accrues under federal law when the plaintiff knows or should have known of the injury. Id. at 1133.
California law includes a provision tolling the statute of limitations for a period not to exceed two years because of imprisonment. Cal. Civ. Proc. Code § 352.1; see Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). By its terms, the statute does not apply to civil detainees. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Nevertheless, by applying California's doctrine of equitable tolling, the Ninth Circuit has found that "a continuously confined civil detainee who has pursued his claim in good faith" may take advantage of tolling. Id. at 930; see also Fink, 192 F.3d at 916 (requirements for equitable tolling in California). It is defendant's burden to prove that plaintiff filed his claims after the expiration of the statute of limitations, but it is plaintiff's burden to show he is entitled to equitable tolling. Payan v. Aramark Management Services Ltd. Partnership, 495 F.3d 1119, 1122 (9th Cir. 2007) (statute of limitations); United States v. Marolf, 173 F.3d 1213, 1218 n.3 (9th Cir. 1999) (equitable tolling).
Defendant has failed to show that the claims arising from plaintiff's 2002 confinement in Tehama County Jail are barred. He has submitted the declaration of Yvette Clay, a Lieutenant in the Tehama County Sheriff's Department, who avers that she is knowledgeable about the conditions of plaintiff's confinement in the jail. Yet Clay does not provide exact dates of plaintiff's confinement and so has not suggested when the 2002 claims arose. See Declaration of Yvette Clay (Clay Decl.). If plaintiff was housed in Tehama County in December 2002, his claims would have accrued then and his original complaint would be timely without resort to equitable tolling.
However, defendant has demonstrated that plaintiff's 2000 claims are barred. In the complaint filed in Sumahit v. Parker, Civ. No. S-01-0181 DFL DAD P, plaintiff averred that he was housed in Tehama County Jail during May and June and again in September and October 2000. Accordingly, even assuming that plaintiff was entitled to the additional two years of tolling found appropriate in Jones, the statute of limitations on these claims expired by October 31, 2003. These claims include the general conditions claims from 2000 and earlier as well as the specific claim that plaintiff "suffered because of the SVP Lable [sic]...." Second Am. Compl. at 8:3-4.
In his deposition, plaintiff explained that during his earlier stays at Tehama County Jail, he would be given a yellow arm band and housed in "Y-tank"; both of these things demonstrated that he was a sex offender. Deposition of Frank Rosas Sumahit (Sumahit Depo.) at 26:16-24, 27:20-23. However, from 2000 through 2006, plaintiff does not recall having any sort of wristband or other feature identifying him as a sex offender or SVP. Sumahit Depo. at 28:6-17. Accordingly, to the extent plaintiff alleges he was singled out as an SVP, this claim is barred by the statute of limitations.
III. Summary Judgment Standards Under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving 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).
On December 23, 2005, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
A. Threshold Evidentiary and Other Matters
In support of his claim that he did not violate plaintiff's rights, defendant relies on the certified copy of plaintiff's deposition and on a declaration from Lieutenant Clay. This declaration provides little if any support for several of defendant's claims, for it is often conclusory, not clearly based on affiant's personal knowledge, or incorporates hearsay. In addition, Lieutenant Clay says that, as a lieutenant in the Tehama County Sheriff's Department, she is "knowledgeable about the conditions of Frank Sumahit's confinement in Tehama County Jail." She does not explain whether that knowledge comes from her own observation or experience or from reliance on records or both, though some of the averments almost certainly come from her perusal of jail records, none of which are attached. See, e.g., Clay Decl. ¶ 33 ("At no time from 2002 through 2006 did Sumahit file a request to use the law library."). The declaration is supported only by two evaluations prepared in connection with the SVPA proceedings against plaintiff; but there is no dispute about the basis for plaintiff's periodic confinement in Tehama County Jail. Indeed, Clay refers to these exhibits only to identify them. Clay Decl. ¶¶ 73-74.
Nevertheless, the court may infer that Clay is competent to testify about jail policies because of her rank as lieutenant. Barthelemy v. Air Lines Pilots Ass'n., 897 F.2d 999, 1018 (9th Cir. 1990); In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000) (knowledge may be inferred from declarant's position); but see Cermetek Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978) (proponent must show that affiant is competent to testify about matters in the declaration). Unless otherwise stated in the discussion below, the court will rely on this inference in evaluating Clay's averments.
Material in an affidavit may be considered on summary judgment only if it would be admissible if offered as part of the affiant's testimony. Menes v. City University of New York, 578 F.Supp.2d 598, 611 (S.D. N.Y. 2008). Hearsay is inadmissible on summary judgment to the same extent it would be at trial, as is testimony not based on the affiant's personal knowledge of the events detailed in the declaration. LaFlamboy v. Landek, 587 F.Supp.2d 914, 922 (N.D. Ill. 2008) (hearsay); D.T. v. Somers Central School District, 588 F.Supp.2d 485, 494 n.13 (S.D.N.Y. 2008) (personal knowledge).
In this case, by way of example, Lieutenant Clay avers that the jail has passed all food service inspections conducted by a dietician, but does not provide a declaration from the inspector, a copy of the properly authenticated reports or other admissible evidence on this subject and fails to explain what the inspection covers or how the jail's compliance with unspecified criteria has any relevance to plaintiff's claims. Clay Decl. ¶ 53; see also id. ¶ 42 (inspections relating to clothing and sanitation).
Although plaintiff's opposition is submitted under penalty of perjury, it is similarly conclusory and often offers nothing more than legal conclusions or quotes from case law. However, there are a few factual assertions in that document, as well as in portions of the Clay declaration and plaintiff's deposition, that aid in the resolution of the pending motion.
Because of the number of the claims in the second amended complaint, the court sets out the undisputed facts and the analysis of the claim flowing from those facts in discrete subsections below. However, as background to all the claims, the court finds that between 2000 and 2006, plaintiff was a civil detainee in the Tehama County Jail, awaiting trial on petitions alleging that he was a sexually violent predator. Sumahit Depo. at 41:11-16. In 2006, plaintiff was housed primarily in the Special Housing Unit (SHU), which is a pair of single person cells with a shared day room. Clay Decl. ¶¶ 5, 7; Sumahit Depo. at 79:4, 79:15-17, 90:20. From 2000 to 2005, plaintiff was housed in a unit called cellside, in a single cell or a cell shared with another civil detainee; cellside is reserved for those held in protective custody. Clay Decl. ¶ 7; Sumahit Depo. at 91:1-8. There were three tiers in cellside: one for the sex offenders, one for trouble makers, and the other for civil detainees. Sumahit Depo. at 92:3-7.
In addition, some broad principles inform the analysis in this case. In Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), the Ninth Circuit clarified the standard under which courts must analyze claims arising under the Fourteenth Amendment brought by civil detainees challenging some conditions of confinement during commitment proceedings: a civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive. Id. at 932. 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 932. Legitimate, non-punitive purposes include "ensuring a detainee's presence at trial, maintaining jail security, and effective management of a detention facility." Id.
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 court in Jones noted that a civilly committed inmate 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).
Not all claims brought by a civil detainee are subsumed in the substantive due process analysis or are subject to the presumption of punitive conditions. When an allegation does not involve general conditions, the court will analyze the claim under the applicable constitutional provisions and sometimes under a substantive due process analysis as well. See, e.g., Jones, 393 F.3d at 935-36 (analyzing free exercise, access to court claims separately); Warren v. Kolender, 2009 WL 196114 (S.D. Cal. 2009) (detainee's opportunity to communicate with counsel "is not properly described as a privilege for purpose of comparing his treatment with that of prisoners"); Valdez v. Rosenbaum, 302 F3d 1039 (9th Cir. 2002) (telephone restrictions analyzed under substantive due process and First Amendment). Moreover, the Jones standard is based on the Ninth Circuit's recognition that "civil detainees retain greater liberty protections than individuals detained under criminal process..." and so applies generally to the conditions of confinement that implicate the detainee's liberty.
The Tehama County Law Library did not have all the books plaintiff needed for his own legal pursuits. Sumahit Depo. at 42:17-19. Because of the deficiencies, plaintiff could not complete legal projects until he returned to Atascadero or Coalinga and so would have to ask for extensions of time. Id. at 43:12-13, 19-21. Despite the law library's deficiencies, plaintiff was not prevented from filing anything. Id. at 46:15.
Plaintiff also complains about the monitoring of his legal mail and telephone calls. Legal mail is checked for contraband and then sealed without being read. Id. at 71:1-5; Clay Decl. ¶ 34. Unmonitored legal calls were made from the law library. Sumahit Depo. at 84:21-23.
An inmate has a constitutionally protected right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 820-21 (1977). However, there is no freestanding constitutional right to law library access for prisoners. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996). Instead, law library access serves as one means of ensuring the constitutional right of access to the courts. See id. at 351. A prisoner claiming that his right of access to the courts has been violated due to inadequate library access must show that: 1) access was so limited as to be unreasonable, and 2) the inadequate access caused actual injury. Vandelft v. Moses, 31 F.3d 794, 797 (9th Cir. 1994).
A prisoner cannot make conclusory declarations of injury, but instead must demonstrate that a non-frivolous legal claim has been frustrated or impeded. To prevail, however, it is not enough for an inmate to show some sort of denial: he must also show "actual injury" such as the inability to file or dismissal of the suit resulting from the inadequacy of the law library. Lewis v. Casey, 518 U.S. 343, 351 (1996).
Defendant has supported this section of his motion with plaintiff's deposition, which shows that plaintiff was able to pursue legal remedies despite the inadequacies of the law library. Moreover, plaintiff's deposition shows that he was not prevented from maintaining confidential communications with counsel whether by letter or by telephone. Defendant is entitled to summary judgment on this claim and to the corresponding request for injunctive relief.
C. Restrictions On Religious Exercise
Plaintiff is Native American. While he was in prison and again at Coalinga, where he is housed after having been found to be an SVP, he can attend "native American groups, native American circles that do our prayers and everything the native American way." In Coalinga, he has access to a Native American chaplain and to other Native American spiritual leaders. Sumahit Depo. at 30:9-12, 20--24. While in Tehama County jail, plaintiff made verbal but no written requests for Native American religious services, but none were available to him. Id. at 31:19, 33:16-17, 34:1-3, 13-14. According to Lieutenant Clay, Tehama County Jail policy permits unlimited confidential visits from clergy, seven days a week from 7:00 a.m. to 11:00 p.m. Clay Decl. ¶ 44. Requests for special religious services must be made in writing. Id. ¶ 45.
To show a violation of the First Amendment right to the free exercise of religion, it is not sufficient to show some impact on religious practices; rather, an inmate must show that "the challenged governmental action infringes on a sincerely held religious belief," or, phrased another way, the inmate must show that "his ability to practice his religion has been ...