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Huftile v. Miccio-Fonseca

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 17, 2009

MICHAEL HUFTILE, PLAINTIFF,
v.
L.C. MICCIO-FONSECA, DEFENDANT.

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.

BACKGROUND

I. Case History*fn2

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.

Id.

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 Plaintiff further against Plaintiff;

D. An order expunging Defendant Miccio-Fonseca's prior evaluations (February 2001, and June 2002) from further proceedings under the SVP Act; and

E. An order enjoining Defendant Miccio-Fonseca from acting in a similar manner in the future to the detriment of Plaintiff Huftile. (Id. at 16.)

PARTIES' ARGUMENTS

I. Defendant's Motion to Dismiss

Counsel on behalf of defendant Dr. Miccio-Fonseca argues that plaintiff's request for injunctive relief is barred because it is still predicated on the notion that the doctor's mental health evaluation reports and her testimony were somehow constitutionally flawed. (Motion to Dismiss (MTD) at 5.) Counsel argues that regardless of the relief sought, under Heck v. Humphrey, 512 U.S. 477, 487 (1994), if plaintiff's success in this action would necessarily imply the invalidity of his civil commitment, plaintiff may not proceed on his claims unless that commitment has been invalidated. (Id.)

Second, counsel argues that under the Younger abstention doctrine, this court should abstain from accepting jurisdiction over plaintiff's claims because his civil commitment proceedings are ongoing. (Id. at 6.) In this regard, counsel argues that Younger abstention applies where there is an ongoing state judicial proceeding. (Id.) Here, according to counsel, state court proceedings are ongoing in the sense that under the SVPA, there are annual reviews of plaintiff's mental condition and he is entitled to a hearing if the annual review shows his condition has so changed that he no longer meets the definition of a sexually violent predator or if conditional release is a less restrictive alternative. (Id.) In addition, defense counsel argues that plaintiff has an opportunity to raise any claims that his federal constitutional rights are being violated in those ongoing state review proceedings.

Third, counsel argues that plaintiff cannot obtain the permanent injunction he seeks against Dr. Miccio-Fonseca because he "cannot show actual success on the merits and the likelihood of irreparable harm." (Id. at 8) (quoting Clement v. California Dep't of Corrections, 220 F. Supp. 2d 1098, 1114-15 (N.D. Cal. 2002)). Counsel notes that in his third amended complaint plaintiff claims that Dr. Miccio-Fonseca failed to tape record her interviews of him, attempted to interview plaintiff without giving him adequate prior notice which in turn deprived him of an opportunity to challenge the reliability of documents with respect to his qualifying offenses. (Id.) However, defense counsel contends that plaintiff cannot succeed on the merits of these claims because the SVPA required Dr. Miccio-Fonseca to take each of the challenged actions. (Id.) Counsel asserts that in assessing whether plaintiff has a diagnosable mental disorder or factors known to be associated with the risk of reoffense among sex offenders, Dr. Miccio-Fonseca properly reviewed his criminal and psychosexual history and previous mental health evaluations. (Id.) Counsel argues that while plaintiff may be dissatisfied with the conclusions reached by Dr. Miccio-Fonseca, plaintiff does not have a right to a particular mental health diagnosis. (Id. at 9.) Thus, counsel contends, plaintiff cannot succeed on his claims that Dr. Miccio-Fonseca violated his constitutional rights and this action should be dismissed. (Id.)

Counsel also argues that plaintiff cannot succeed on the merits of his due process claims because he does not have a protected interest and, in any event, received all the process to which he was due. (Id.) Counsel notes that plaintiff received mental health evaluations, a probable cause hearing and a jury trial and that plaintiff himself does not contend that the procedural protections of the SVPA were denied to him. (Id.) In addition, counsel observes that the SVPA does not require that one subject to civil commitment proceedings be given prior notice of the mental health evaluations or that a tape recording of those evaluations be provided. (Id.) Counsel argues that plaintiff's reference to the California Code of Civil Procedure as requiring defendant's interview be audio-taped applies to civil discovery, not mental health evaluations under the SVPA. (Id.) Moreover, defense counsel asserts that there is no law establishing a right to direct what information the mental health evaluator will consider or what procedures the evaluator will use to verify the accuracy of related documents. (Id.) Counsel contends that plaintiff could have obtained an independent mental health examination to review the same medical records and psychological reports that were available to Dr. Miccio-Fonseca. (Id. at 10.) In any event, counsel argues, the subsequent jury trial at which plaintiff was represented by counsel provided an opportunity for plaintiff to challenge any inadequacy with respect to the mental health evaluations. (Id.)

In conclusion, counsel for defendant Dr. Miccio-Fonseca asserts that in order to be entitled to injunctive relief, plaintiff must demonstrate some irreparable harm. Counsel argues that plaintiff cannot show any such irreparable harm flowing from any alleged inaccuracies in the information reviewed or biases reflected in the reports or testimony provided by Dr. MiccioFonseca. (Id.) This is because plaintiff had a probable cause hearing and a trial at which time both he and his counsel were provided access to the same information that was made available to Dr. Miccio-Fonseca. (Id.) Moreover, Dr. Miccio-Fonseca was subject to cross-examination. (Id.) Finally, plaintiff is entitled to yearly reviews of his mental condition as well as to the appointment of an expert who would be provided access to all of the records in question. (Id. at 11.) Under these circumstances, defense counsel argues, plaintiff cannot obtain a permanent injunction because he cannot show that he will be irreparably harmed by any alleged errors committed by defendant Dr. Miccio-Fonseca. (Id.)

II. Plaintiff's Opposition

Plaintiff opposes the motion to dismiss. Plaintiff argues that Younger abstention is inapplicable here because his request for expungement or redaction of defendant Dr. MiccioFonseca's psychological evaluations is not the subject of any ongoing judicial proceeding in state court. (Opp'n at 4.) Plaintiff argues that any ongoing SVPA proceedings involving him are independent of his 2002 civil commitment proceeding. (Id. at 5.) Plaintiff seeks the expungement or redaction of defendant Dr. Miccio-Fonseca's psychological evaluations from his record because her inaccurate conclusion that his South Dakota conviction for raping his step-daughter is a qualifying conviction will be relied upon in the future by other psychologists who will evaluate plaintiff in connection with SVPA review proceedings. (Id.)

Next, plaintiff argues that he does not challenge the "procedural process" provided for by the SVPA, but rather, "the conclusion drawn by the defendant, which substantially alters facts concerning the South Dakota conviction." (Id. at 7) (emphasis in original). Plaintiff also contends that he does not challenge defendant Dr. Miccio-Fonseca's evaluation due to her review of his prison and medical files, psychological and social history, or her use of the Static-99 test. (Id.) Instead, plaintiff challenges "her conclusion concerning the South Dakota conviction (as a predicate sexually violent offense under the SVP statute)" and seeks to have that "invalid conclusion" redacted and expunged from the record. (Id.) In this regard, plaintiff contends that he "is not claiming expungement/redaction of the MiccioFonseca's psychological reports is a constitutional right, but rather, plaintiff seeks expungement/redaction as an equitable remedy under 42 U.S.C. § 1983 for alleged violations of his constitutional right to due process." (Id. at 8.)

As to the his right to have his mental examination tape recorded, plaintiff argues that California's Civil Discovery Act of 1986 establishes this right. (Id.) Relying on California law, plaintiff contends that the Civil Discovery Act of 1986 applies to SVPA cases such as his. (Id.)

Finally, plaintiff argues that he is seeking an injunction prohibiting defendant from "ever again (1) utilizing Mr. Huftile's South Dakota conviction to his detriment, (2) to expunge or redact her prior erroneous mental health conclusion concerning his South Dakota conviction, and (3) enjoining defendant from any future mental health examinations of plaintiff under the SVP Act." (Id. at 10.) He argues that such an injunction is necessary because other evaluators will read defendant Dr. Miccio-Fonseca's reports in the future and will adopt the same conclusion "since that conclusion has become final as to the plaintiff." (Id. at 9.) Lastly, plaintiff argues that expungement of defendant Dr. Miccio-Fonseca's erroneous conclusion that his South Dakota conviction is a qualifying offense under the SVPA is an equitable remedy available to him through this § 1983 action. (Id. at 10.)

APPLICABLE LEGAL STANDARDS

I. Legal Standards Applicable to a Rule 12(b)(6) Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of the complaint, or any claim within it, "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). See also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp., 550 U.S. at 555.

In determining whether a pleading states a claim, the court accepts as true all material allegations in the complaint and construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In the context of a motion to dismiss, the court also resolves doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).

II. Legal Standards Applicable to Actions Seeking Injunctive Relief

The United States Supreme Court has identified the requirements for the granting of permanent injunctive relief. as follows:

According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). See also Weinberger v. RomeroBarcelo, 456 U.S. 305, 312 (1982) (In exercising their sound discretion, courts should pay particular regard to public consequences in granting an injunction.); American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1066-67 (9th Cir. 1995) ("The requirements for the issuance of a permanent injunction are the likelihood of substantial and immediate irreparable injury and the inadequacy of remedies at law.") In addition, in seeking prospective injunctive relief, plaintiff must allege facts that if proven would establish that he is likely to suffer future injury if defendant is not so enjoined. See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042 (9th Cir. 1999). Thus, as the Ninth Circuit has observed:

In a suit for prospective injunctive relief, a plaintiff is required to demonstrate a real and immediate threat of future injury.

City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that the threat must be "'real and immediate'" as opposed to "'conjectural' or 'hypothetical'"). The key issue is whether the plaintiff is "likely to suffer future injury." Id. at 105, 103 S.Ct. 1660; see also O'Shea v. Littleton, 414 U.S. 488, 496, 498, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006).

Of course, "the court is not obliged to accept allegations of future injury which are overly generalized, conclusory, or speculative." Stevens v. Harper, 213 F.R.D. 358, 370 (E.D. Cal. 2002). See also City of Los Angeles v. Lyons, 461 U.S. 95, 105-08 & n.7 (1983) (a plaintiff is required to credibly allege that he faces a realistic threat of future harm from the practice he seeks to enjoin); Goldie's Bookstore v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984) ("Speculative injury does not constitute irreparable injury.")

The standards for permanent injunction and preliminary injunction are essentially the same with the exception that in order for a permanent injunction to issue, plaintiff must ultimately show actual success on the merits, instead of probable success on the merits. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987); see also Walsh v. City and County of Honolulu, 460 F. Supp. 2d 1207, 1211 (D. Hawaii 2006).*fn13

III. California's Sexually Violent Predators Act (SVPA)

The SVPA became effective on January 1, 1996 and reflected "'the Legislature's determination of the importance of identifying and controlling persons whose criminal history and mental state render them sexually violent predators.'" Hubbs v. Alamo, 360 F. Supp. 2d 1073, 1076 (C.D. Cal. 2005) (quoting Albertson v. Superior Court, 25 Cal. 4th 796, 810 (Cal. 2001)).

The procedures set out under the SVPA have been summarized by the Ninth Circuit as follows:

California's SVP Act requires that a prisoner who was previously convicted of certain enumerated violent sex crimes be evaluated by the Department of Corrections, the Board of Prison Terms, and the California Department of Mental Health six months before being released from prison to determine whether the prisoner may be a potential SVP. See Cal. Welf. & Inst.Code § 6601(a)(1). This screening involves review of the prisoner's background and criminal record. See id. § 6601(b). If the Department of Corrections concludes that the prisoner is likely to be an SVP, the prisoner is referred to the Department of Mental Health for a "full evaluation" to determine whether the prisoner meets the other criteria in the SVP Act. See id.

This full evaluation must be conducted in accordance with a standardized assessment protocol by at least two practicing psychiatrists or psychologists designated by the Department of Mental Health. See id. § 6601(c) & (d). The two evaluators must agree that the prisoner has a mental disorder and is dangerous within the meaning of section 6600 for proceedings to go forward under the SVP Act. [fn. omitted.] See id. § 6601(d). If the two evaluators agree that the prisoner should be civilly committed under the SVP Act, the Department of Mental Health will then transmit a request for a petition for commitment to the county in which the alleged SVP was convicted. At that time the Department of Mental Health will also send the county copies of the psychiatric evaluations prepared by the evaluators and any other supporting documentation. See id. § 6601(d), (h), & (i).

"If the county's designated counsel [either the district attorney or county counsel] concurs with the recommendation, a petition for commitment shall be filed in the [county's] superior court...." Id. § 6601(i). Once the petition for civil commitment is filed in the superior court by the county's designated counsel, a superior court judge will then hold a "probable cause hearing." Id. § 6602(a). At this hearing, the prisoner is entitled to assistance of counsel.

The superior court judge will determine at the hearing whether there is probable cause to believe that the prisoner is likely to engage in sexually violent, predatory criminal behavior after being released from prison. See id. If the judge determines there is no probable cause, the judge shall dismiss the petition for commitment. If, however, the judge determines that probable cause exists, the judge must order the prisoner to remain in custody pending a civil commitment trial to determine whether the prisoner is, by reason of a diagnosed mental disorder, a danger to the health and safety of others and likely to engage in acts of sexual violence upon release from prison.

Despite the fact that the commitment trial is civil in nature, the prisoner is nonetheless "entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports." Id. [Cal. Welf. & Inst. Code] § 6603. If the prisoner is indigent, then she or he is entitled to court-appointed counsel and court-appointed experts. If the prisoner or county's designated counsel do not demand a jury trial, a bench trial will be conducted. Id. § 6603(e). The court or jury shall determine whether, beyond a reasonable doubt, the prisoner is a sexually violent predator. Id. § 6604. A unanimous verdict is required in any jury trial. Id. § 6603(f). "If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced." Id. But if the court or jury determines following a trial that the person is a sexually violent predator, then the prisoner is deemed an SVP and civilly committed for two years in a facility designated by the California Department of Mental health. See id. § 6604. The SVP is then committed to the custody of the Department of Mental Health "for appropriate treatment and confinement in a secure facility . . . ." Id.

An SVP may not be civilly committed for more than two years unless a new petition for commitment is filed and a subsequent re-commitment is obtained pursuant to the same safeguards detailed above. See id. Once every year, the civilly committed SVP has a right to a "show cause" hearing to determine whether her or his condition has changed such that she or he no longer poses a danger to others. See id. § 6605. If the superior court at the show cause hearing determines that the SVP's condition has changed, then another hearing is held by the court to permit the State to show that the SVP remains a danger to others. Again, if the . . . [SVP] or county's designated counsel do not demand a jury trial, a bench trial will be conducted to determine whether the SVP remains a danger to others. If the court or jury finds in favor of the civilly committed SVP, then the person must be released. If, however, the court or jury finds in favor of the State, the person is recommitted for two more years. See id. §§ 6605, 6608.

Carty v. Nelson, 426 F.3d 1064, 1066-68 (9th Cir. 2005).

At the time of plaintiff's 2002 SVPA proceedings, a sexually violent predator was defined as follows: a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.

Cal. Wel. & Inst. Code § 6600(a)(1).

"Sexually violent offense" means the following acts when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity [for enumerated California Penal Code sections] . . .

Id. at § 6600(b). The sexually violent offense could be a prior or current conviction that resulted in a determinate prison sentence, a prior conviction that resulted in the grant of probation, or a prior conviction in another jurisdiction. Id. at § 6600(a)(2). "No restriction is placed on the time at which a prior qualifying crime must have occurred." Hubbs, 360 F. Supp. 2d at 1077.

ANALYSIS

As noted above, plaintiff claims that Dr. Miccio-Fonseca violated his right to due process by: (1) relying on his 1984 South Dakota conviction for raping his step-daughter in preparing her evaluation; (2) failing to provide plaintiff with advance notice of his February 2001 interview; and (3) failing to record plaintiff's mental examination.

First, defendant correctly argues that the SVPA does not require that the evaluator provide written notice before conducting the evaluation. As one district court has stated in rejecting a nearly identical claim:

SVPA does not provide for notification prior to screening and evaluation. Nor is it clearly established that the Due Process Clause requires such notification. The screening and evaluation process does not appear to amount to the sort of dispositive hearing for which a prisoner needs advance notice to marshal the facts and prepare a defense. Cf. Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (prisoner facing disciplinary hearing must be given advance notice of disciplinary charges against him in order to enable him to marshal the facts and prepare a defense). That generally will come at the probable cause hearing and jury trial, if a petition for commitment is filed. Not surprisingly, there is no Supreme Court precedent requiring that an individual must be given notification prior to being screened and evaluated under the circumstances of this case.

Woodward v. Mayberg, 242 F. Supp. 2d 695, 704-05 (N.D. Cal. 2003). See also Huftile v. Vognesen, No. Civ. S-03-0604 RRB JFM P, 2007 WL 1813711, at *6 (June 22, 2007) ("However, the SVPA does not provide for advance notice prior to interview by the mental health professional.") Because plaintiff cannot succeed on the merits of this due process claim, he has not stated a cognizable claim for injunctive relief in that regard.

Likewise, there is no authority for the proposition that plaintiff has a federal constitutional right to have his SVPA interviews or evaluations recorded. See Pritchett v. Hunter, No. C 05-0764 PJH (PR), 2008 WL 4183932, at *13 (N.D. Cal. Sept. 9, 2008) (concluding that the petitioner's contention that he was civilly committed in violation of state laws and procedures based on lack of notice and failure to provide him with a tape recording of his psychological interview failed to support a due process claim). Again, because plaintiff cannot prevail on his claim that his due process rights were violated in this regard, he has not stated a cognizable claim for prospective injunctive relief.

Finally, plaintiff has not stated a cognizable due process claim with respect to Dr. Miccio-Fonseca's consideration of his 1984 South Dakota conviction, for raping his step-daughter, in her evaluation. See Huftile v. Hunter, Civ. S-05-0174 GEB DAD, 2009 WL 111721, (E.D. Cal. Jan. 16, 2009) (discussing in the context of plaintiff's habeas challenge to his civil commitment, the role his 1984 South Dakota offense played in his civil commitment). As petitioner himself has alleged, any challenge to the accuracy of documents relating to that prior conviction was addressed at his civil commitment trial. (Third Am. Compl. at 6.) Such a challenge may be mounted again should plaintiff have objection to the matters considered in any subsequent SVPA review proceedings. Plaintiff is not entitled, under the U.S. Constitution, to one particular psychological or psychiatric diagnosis. Plaintiff's disagreement with Dr. MiccioFonseca's evaluation or the matters she considered in reaching her conclusions was more properly raised during the probable cause hearing, in his subsequent civil commitment jury trial, on appeal in state court and in his federal habeas action.*fn14 Because plaintiff has not prevailed and cannot now prevail on this due process claim, he cannot be entitled to the requested injunctive relief.

In addition, the undersigned finds that plaintiff has alleged no facts establishing that he will suffer irreparable harm if the requested prospective injunctive relief is not granted. As noted above, in his third amended complaint plaintiff seeks prospective injunctive relief that would bar Dr. Miccio-Fonseca from reaching the same conclusions she reached in her 2001-02 evaluations of plaintiff, expunging those allegedly flawed evaluations from his record and prohibit the doctor from "approaching Plaintiff Huftile in any manner in the future." (Third Am. Compl. at 16.) Whether or not Dr. Miccio-Fonseca poses a future threat to plaintiff in this regard is purely speculative. Plaintiff has not alleged that Dr. Miccio-Fonseca played a role in his SVPA proceedings subsequent to 2002. In fact, it is clear that she did not. Huftile, 410 F.3d at 1142 ("Dr. Miccio-Fonseca did not conduct any of the evaluations underlying the state's recommitment petition."). The allegations in plaintiff's third amended complaint pertain only to Dr. Miccio-Fonseca's 2001 and 2002 evaluations leading up to the 2002 civil commitment trial. It is now clear that plaintiff continues to focus on alleged defects in those 2001 and 2002 reports and their consideration of his 1984 conviction for raping his step-daughter and that he is in fact seeking to undo what has been done rather than attempt to stop it from happening again in the future. As noted above, this case is limited to prospective injunctive relief only. Accordingly, plaintiff has failed to allege facts demonstrating any threat of irreparable injury specifically from Dr. Miccio-Fonseca in the future.

For the reasons set forth above, this action for prospective injunctive relief should therefore be dismissed. Although not necessary to the disposition of the pending motion, the undersigned notes that as clarified by the allegations of the third amended complaint this action may fall within that category of cases still barred by Heck even though plaintiff seeks only prospective injunctive relief. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (holding that "a state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration.")

As noted, plaintiff asserts that he is not challenging Dr. Miccio-Fonseca's "ultimate conclusion . . . [as to] whether Plaintiff had (past) a diagnosable mental disorder, and is therefore likely to engage in acts of sexual violence" but rather is challenging the lack of procedural due process evidenced by defendant's impartiality and failure to establish the reliability of documents before using the South Dakota offense in her evaluation. (Third Am. Compl. at 8.) The distinction drawn by plaintiff, however, does not withstand scrutiny. As the Ninth Circuit has already explained in this case,

[T]he structure of the SVPA statutory scheme indicates that the success of Huftile's § 1983 claim would necessarily imply the invalidity of his civil commitment. Before the California Director of Mental Health can forward a request for an SVPA commitment petition to the appropriate county, two evaluators must agree that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody. Cal. Welf. & Inst. Code § 6601(d). An attorney for that county may then file a petition for commitment.

Id. § 6601(i). A judge must then review this petition to determine whether there is probable cause to believe that the person is likely to engage in sexually violent predatory criminal behavior upon release. Id. § 6602(a). Because Dr. Miccio-Fonseca was one of Huftile's evaluators, a judgment in favor of Huftile in his § 1983 action would necessarily imply the invalidity of his civil commitment. That is, if only one evaluator, rather than two, had concluded that Huftile had a mental disorder within the meaning of § 6601(d), there would have been no basis for the state Director of Mental Health to send the request to the county, no basis for the county attorney to file a petition for commitment, and no basis for the judge to go forward with a probable cause determination.

Huftile v. Miccio-Fonseca, 410 F.3d at 1140-41. See also Hubbs, 360 F. Supp. 2d at 1080 (plaintiff's allegations that the defendant psychologist had included false statements and misrepresentations in the evaluation report were barred because they implicated the validity of plaintiff's SVPA civil commitment); Kitchens v. Houge, No. Civ S-04-1206 MCE PAN P, 2006 WL 2223881, at *3 (E.D. Cal. Aug. 2, 2006) (concluding that success on plaintiff's claims that the two evaluators had violated his right to due process by relying on documents in his CDC Central File would implicate the validity of plaintiff's civil commitment term).

The undersigned recognizes that the Ninth Circuit previously reversed this court's dismissal of plaintiff's claim for injunctive relief as Heck-barred, noting that "[o]rdinarily, a prayer for . . . prospective relief will not 'necessarily imply' the invalidity of a previous loss of good-time credits, and so may properly be brought under § 1983." Huftile, 410 F.3d at 1141 (quoting Edwards v. Balisok, 520 U.S. 641, 648 (1997)). However, when the appellate court did so it was faced with a claim which vaguely sought injunctive relief only to prevent "Defendant from inflicting further injury" on plaintiff. Id. Now, in his third amended complaint, plaintiff has made clear that he actually seeks the expungement of Dr. Miccio-Fonseca's 2001 and 2002 evaluations from his record. As the Ninth Circuit has recognized, those evaluations were essential to plaintiff's civil commitment and were they to be expunged, the validity of that commitment would clearly be implicated. 410 F.3d at 1141. Thus, this may well be a case where plaintiff's specific claim for prospective injunctive relief is so intertwined with his substantive claims that a favorable ruling on the former would imply the invalidity of his civil commitment and would therefore be barred under Heck. Nonetheless, the court need not resolve this issue. In his third amended complaint plaintiff has failed to state any cognizable claim that his due process rights were violated by defendant. Accordingly, his complaint should be dismissed.*fn15

CONCLUSION

In accordance with the above, IT IS HEREBY RECOMMENDED that:

1. Defendant's Rule 12(b)(6) motion to dismiss plaintiff's third amended complaint (Doc. No. 59), filed on December 22, 2008, be granted; and

2. This action be closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within five days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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