FINDINGS AND RECOMMENDATIONS
Plaintiff is a civil detainee under California's Sexually Violent Predator Act (SVPA). He is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendant Dr. Miccio-Fonseca's motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 This is defendant's third motion to dismiss this action. Plaintiff has filed his opposition to the pending motion.
This action has a lengthy and complex history in part because it is one of four cases that plaintiff has filed in this court relating to his 2002 civil commitment.*fn3 The first of those four was a civil rights action brought against Dr. Val Farmer alleging that the doctor had violated plaintiff's constitutional rights by testifying at his 2002 civil commitment proceeding. See Huftile v. Farmer, CIV S-03-0585 DFL PAN P.*fn4 The district court dismissed plaintiff's claims for damages and declaratory relief in that case pursuant to the holding in Heck v. Humphrey, 512 U.S. 477 (1994), granted defendant Farmer's motion for summary judgment on plaintiff's claims for injunctive relief and denied plaintiff's motion for preliminary injunction. Huftile v. Farmer, CIV S-03-0585 DFL PAN P, Order filed Mar. 17, 2006 at 2.
Next, plaintiff filed a civil rights action against Dr. Jack Vognsen*fn5 alleging that Dr. Vognsen's improper actions resulted in plaintiff being found a sexually violent predator and seeking prospective injunctive relief prohibiting the doctor from taking such actions in the future. Huftile v. Vognsen, CIV S-03-0604 RRB JFM P. On June 22, 2007, the assigned magistrate judge in that action filed findings and recommendations recommending that defendant Vognsen's motion to dismiss be granted.*fn6 Therein, the assigned magistrate judge concluded that plaintiff was not entitled to prospective injunctive relief against defendant Dr. Vognsen.*fn7 Those findings and recommendations were adopted in full by the assigned district judge on November 6, 2007, and judgment was entered in favor of defendant Dr. Vognsen that same day.
In addition to his civil rights cases, on January 27, 2005, plaintiff filed a petition for a writ of habeas corpus challenging his 2002 civil commitment. See Huftile v. Hunter, CIV S-05-0174 GEB DAD P. In that habeas petition plaintiff challenged the November 1, 2002, finding by the Sacramento County Superior Court that he was a sexually violent predator on the grounds that: (1) the evidence was insufficient to support the jury's finding; and (2) the trial court violated his right to due process when it excluded evidence that he was subject to an outstanding arrest warrant out of South Dakota for completion of a criminal sentence imposed against him in that state. On January 16, 2009, the undersigned issued findings and recommendations recommending that the habeas petition be denied. On February 17, 2009, those findings and recommendations were adopted by the assigned district judge and judgment was entered accordingly. No appeal was taken.
The above-entitled action is now the final remaining case of the four (three civil rights, one habeas) cases filed by plaintiff in this court, with respect to his 2002 civil commitment proceeding. Plaintiff filed his complaint in this action on July 17, 2003, pursuant to 42 U.S.C. § 1983 and therein challenged the manner in which defendant Dr. Miccio-Fonseca conducted her 2002 evaluation of plaintiff. Specifically, plaintiff alleged that Dr. MiccioFonseca violated confidentiality rules and codes of professional ethics by reviewing plaintiff's prison file, medical records, psychological evaluations, and police and court records without his consent. (See Huftile v. Miccio-Fonseca, CIV S-03-1522 FCD DAD P, Doc. No. 5 at 3.) Plaintiff also alleged that Dr. Miccio-Fonseca's report contained false and unsupported statements, inaccurate test results, incomplete information and unsound conclusions. (Id.) In his original complaint plaintiff sought damages as well as declaratory relief and made vague reference to injunctive relief that would "prevent Defendant from inflicting further injury upon Plaintiff." (Compl. at 27.)
On August 15, 2003, the undersigned recommended that the action be dismissed as barred by the holding in Heck v. Humphrey. Those findings and recommendations were adopted by the assigned district judge on September 4, 2003. Plaintiff appealed and, on June 10, 2005, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of plaintiff's claims for damages and declaratory relief, finding that the rule announce in Heck did apply to individuals detained under California's SVPA. Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-41 (9th Cir. 2005). The court also concluded that "a judgment in favor of Huftile in his § 1983 action would necessarily imply the invalidity of his civil commitment." 410 F.3d at 1141.*fn8 The Ninth Circuit, however, reversed the dismissal of plaintiff's claim for injunctive relief which sought an order preventing Dr. Miccio-Fonseca from inflicting further injury upon him. Id. at 1141. Specifically, the court stated in this latter regard:
While Huftile's claims for damages and declaratory relief are barred by Heck, Huftile's claim for injunctive relief is not barred. We therefore reverse the portion of the district court's order finding a Heck bar to injunctive relief. We do not decide whether Huftile is, in fact, entitled to injunctive relief. On remand, the district court will be free, through appropriate procedures, to decide on the propriety of such relief.
Following remand, on March 8, 2006, the undersigned filed findings and recommendations recommending that plaintiff's claims for damages and declaratory relief be dismissed without prejudice and that this action proceed solely on his claim for prospective injunctive relief. Those findings and recommendations were adopted by the assigned district judge on April 19, 2006. On July 24, 2006, defendant filed a motion to dismiss plaintiff's sole remaining claim for injunctive relief. Rather than opposing that motion, on July 31, 2006, plaintiff filed an amended complaint, erroneously titled "Second Amended Complaint."*fn9
In a lengthy narrative plaintiff's second amended complaint listed thirteen claims and eight requests for injunctive relief. His claims fell into the following four groups: (1) challenges to the methodology, accuracy and sufficiency of Dr. Miccio-Fonseca's evaluation, including her alleged misconstruing of facts relating to plaintiff's South Dakota conviction involving his stepdaughter; (2) claims that both the Clinical Evaluator Handbook and Standardized Assessment Protocol (SAP) manual used by Dr. Miccio-Fonseca in conducting plaintiff's evaluation are "illegal"; (3) claims that Dr. Miccio-Fonseca violated plaintiff's constitutional right to privacy, his contract rights and the doctor/patient and husband/wife privileges by accessing his prison files, medical files and the records of Dr. Farmer without plaintiff's consent; and (4) claims that Dr. Miccio-Fonseca violated plaintiff's rights by her failure to tape record his interviews, produce a copy of the court order requiring plaintiff to be interviewed and to provide proper notice to plaintiff before the interviews and advise him of his right to have counsel present. Based upon these alleged unconstitutional acts by Dr. MiccioFonseca, plaintiff sought prospective injunctive relief in the form of an order: (1) barring Dr. Miccio-Fonseca from "approaching Plaintiff in any official or unofficial manner" without the presence of counsel; (2) prohibiting Dr. Miccio-Fonseca, state evaluators or other agents of the State of California from using or referring to Dr. Miccio-Fonseca's evaluation of plaintiff; (3) requiring that all records of Dr. Miccio-Fonseca's evaluation of plaintiff be destroyed; (4) prohibiting Dr. Miccio-Fonseca, other evaluators and agents of California from using Dr. Val Farmer's reports, evaluations or testimony; (5) prohibiting any contact with plaintiff's ex-wife and requiring that all records of past conversations with plaintiff's ex-wife be destroyed; (6) prohibiting Dr. Miccio-Fonseca, other evaluators and agents of California from using the Clinical Evaluator Handbook and Standardized Assessment Protocol (SAP); (7) prohibiting the use of his South Dakota conviction, involving plaintiff's stepdaughter, as a predicate offense under the SVPA; and (8) barring Dr. Miccio-Fonseca and other evaluators and agents of California from falsely characterizing the nature of his South Dakota conviction.*fn10
On February 9, 2007, defendant responded to plaintiff's second amended complaint with another motion to dismiss, which plaintiff opposed.*fn11 On September 27, 2007, the court granted the motion to dismiss, noting that plaintiff had simply alleged many of the same claims that the Ninth Circuit had already found to be Heck-barred because plaintiff's success on those claims would necessarily imply the invalidity of his civil commitment and because he had not alleged facts entitling him to prospective injunctive relief and was seeking said relief against individuals who were not parties to this action. (Doc. No. 53 at 13-18.) Out of an abundance of caution, the court granted plaintiff leave to file a third amended complaint in order to provide him a final opportunity to allege a cognizable claim for prospective injunctive relief as to defendant Dr. Miccio-Fonseca.*fn12
On November 29, 2007, plaintiff filed his third amended complaint. On November 6, 2008, the court ordered defendant to file her response. On December 22, 2008, defendant filed the pending motion to dismiss. On March 9, 2009, plaintiff filed his opposition.
II. Plaintiff's Civil Commitment Proceedings
Defendant Dr. Miccio-Fonseca was one of two evaluators designated by the California Department of Mental Health to assist in the determination of whether plaintiff fell within California's SVPA, California Welfare & Institutions Code §§ 6600, et. seq. On February 2, 2001, Dr. Miccio-Fonseca attempted to interview plaintiff but he refused to be interviewed. (Third Am. Compl. at 4.) Dr. Miccio-Fonseca submitted her evaluation report, dated March 26, 2001, based solely on a review of plaintiff's Central File. (Id., at 4 & Ex. 2.)
On April 20, 2001, following a probable cause hearing on the petition for plaintiff's civil commitment, the assigned Sacramento County Superior Court judge determined that there was probable cause to believe that plaintiff was likely to engage in sexually violent predatory criminal behavior after being released from prison. (Id. at 4.)
On June 27, 2002, Dr. Miccio-Fonseca was directed to interview plaintiff for an updated evaluation but plaintiff again refused to be interviewed. (Third Am. Compl. at 4-5.) Dr. Miccio-Fonseca prepared an updated report based on a review of plaintiff's Central File and using actuarial scales. (Id., Ex. 5.)
On October 21, 2002, plaintiff's civil commitment trial commenced. (Id. at 5-6.) Dr. Miccio-Fonseca testified at the trial. (Id. at 6.) On November 1, 2002, the jury rendered a true verdict against plaintiff, finding beyond a reasonable doubt that he is a sexually violent predator. (Third Am. Compl. at 6.)
Plaintiff's initial civil commitment expired on November 1, 2004. (Id. at 8.) A second petition for the period November 1, 2004 to November 1, 2006 was granted. (Id.) A third petition for the period November 1, 2006 to November 1, 2008 has subsequently been granted. (Id.)
PLAINTIFF'S THIRD AMENDED COMPLAINT
Plaintiff's third amended complaint differs somewhat from his prior complaints filed in this action. Plaintiff now alleges as follows. Defendant Dr. Miccio-Fonseca violated his due process rights in three respects. First, Dr. Miccio-Fonseca relied on "inaccurate data material" concerning plaintiff's 1984 conviction in South Dakota in preparing her evaluation. (Id. at 12.) Plaintiff contends that his South Dakota conviction was not a qualifying offense under the SVPA because the victim was his adopted daughter and the offense did not result in an "extra-familiar [sic] conviction[.]" (Id. at 9.) Second, Dr. Miccio-Fonseca failed to provide plaintiff with proper advance notice of the February 2001 interview. (Id. at 13.) Plaintiff contends that because he did not receive adequate notice, he did not have "ample time to procure any and all pertinent material data pertaining to his 1984 South Dakota conviction" to show that it involved an "incestuous familiar [sic] offense." (Id.) Plaintiff alleges that because of the lack of notice he "was forced to . . . decline to interview[.]" (Id.) Third, Dr. Miccio-Fonseca failed to follow the state court's order to audio tape his mental examination in violation of California Code of Civil Procedure 2032.530(a). (Id. at 14.) Plaintiff contends that he declined to be interviewed, in part, because the doctor failed to comply with this requirement. (Id.)
In the prayer for relief set out in his third amended complaint, plaintiff requests the following prospective injunctive relief:
A. An order barring Defendant. Miccio-Fonseca from rendering a "legal conclusion" on whether Plaintiff's 1984 South Dakota conviction is a predicate sexually violent offense;
B. An order barring Defendant Miccio-Fonseca from approaching Plaintiff Huftile in any manner in the future;
C. An order prohibiting Defendant Miccio-Fonseca from further utilizing her constitutionally defective evaluation of ...