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Allen v. Mayberg

February 7, 2010

GEORGE N. ALLEN, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
RICK GONZALES, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF MENTAL HEALTH, ET AL., DEFENDANTS.
RAYMOND AMEDEO, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
MANSFIELD R. BROWN, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
WAYNE P. DEBERRY, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
DON D. MCNEAL, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
HENRY C. SCOTT, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
LAWRENCE SMITH, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
FRED SCOTT, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.
HAROLD E. CARMONY, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF MENTAL HEALTH, ET AL., DEFENDANTS.
ELDRIDGE CHANEY, PLAINTIFF,
v.
STEPHEN MAYBERG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge

ORDER

I. INITIAL REVIEW

Pursuant to 28 U.S.C. § 1915A, "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which [plaintiff appearing pro se] seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

The Court must dismiss a complaint or any portion thereof that states a claim that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. §§ 1915(e) and 1915A.

A. Standard

"[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . . . [The] term 'frivolous,' when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (Bivens action); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (non-prisoner § 1983 action); Lopez v. Dep't of Health Servs., 939 F.2d 881, 882 (9th Cir. 1991) (prisoner § 1983 action). Where "there is no controlling authority requiring a holding that the facts as alleged fail to establish even an arguable claim as a matter of law," the complaint cannot be dismissed as legally frivolous. Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990) (per curiam) (citing Pratt v. Sumner, 807 F.2d 817, 820 (9th Cir. 1987)); see also Iasu v. Smith, 511 F.3d 881, 892 (9th Cir. 2007).

When determining whether a complaint is frivolous, the court need not accept the allegations as true, but must "pierce the veil of the complaint's factual allegations," Neitzke, 490 U.S. at 327, to determine whether they are "'fanciful,' 'fantastic,' [or] 'delusional,'" Denton v. Hernandez, 504 U.S. 25, 33 (1992) (quoting Neitzke, 490 U.S. at 328). A complaint may not, however, be dismissed as frivolous merely because the allegations are unlikely. See Denton, 504 U.S. at 33. A complaint may be dismissed as frivolous where a defense is obvious on the face of the complaint. See Franklin v. Murphy, 745 F.2d 1221, 1228--29 (9th Cir. 1984). But, the court may not anticipate defenses. Id. A complaint may also be dismissed as frivolous if it "merely repeats pending or previously litigated claims." Cato, 70 F.3d at 1105 n.2 (citations and internal quotations omitted).

In the Ninth Circuit, "[p]ro se plaintiffs proceeding [in forma pauperis] must . . . be given an opportunity to amend their complaint [prior to dismissal] unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (citation and internal quotations omitted); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Rizzo v. Dawson, 778 F.2d 527, 529-30 (9th Cir. 1985); cf. Denton v. Hernandez, 504 U.S. 25, 34 (1992) (suggesting that if the complaint's deficiencies could be remedied by amendment, then it may be abuse of discretion to dismiss complaint without granting leave to amend). The plaintiff must also be given some notice of the complaint's deficiencies prior to dismissal. See Cato, 70 F.3d at 1106; cf. Denton, 504 U.S. at 34 (declining to address the Ninth Circuit's notice and leave-to-amend rule for frivolous complaints).

The Prison Litigation Reform Act ("PLRA") states that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim on which relief may be granted."

28 U.S.C. § 1915(e)(2)(B)(ii); see also 28 U.S.C. § 1915A(b)(1); 42 U.S.C. § 1997e(c)(1). The Ninth Circuit Court of Appeals has concluded that this provision applies to all appeals pending on or after the enactment of the PLRA. See Anderson v. Angelone, 123 F.3d 1197, 1199 (9th Cir. 1997); Marks v. Solcum, 98 F.3d 494, 495-96 (9th Cir. 1996) (per curiam); see also Franklin v. Oregon, 662 F.2d 1337, 1340-41 (9th Cir. 1981) (discussing procedural requirements for sua sponte dismissal for failure to state a claim). This provision is "not limited to prisoners," and applies to Plaintiffs here. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).

"In determining whether a complaint states a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. A complaint may not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [the plaintiff's] claims which would entitle [the plaintiff] to relief." Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (citations omitted); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976); Tyler v. Cisneros, 136 F.3d 603, 607 (9th Cir. 1998); Hale v. Arizona, 993 F.2d 1387, 1391 (9th Cir. 1993). "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001).

B. Summary of Plaintiffs' Complaints

By way of summary, Plaintiffs are sexually violent predators ("SVPs")*fn1 being housed at Coalinga State Hospital (CSH) in Coalinga, California. Plaintiffs all allege that the acts complained of occurred at CSH. Plaintiffs name the following as defendants: Stephen Mayberg, Director of California Department of Mental Health; W.T. Voss, Executive Director of CSH; Ben McClain, Executive Director of CSH; Norman Kramer, Executive Director of CSH; George Maynard, Assistant Administrator; Gary Renzaglia, Clinical Administrator of CSH; Linda Clark, CPS Movie Chairperson; Rocky Spurgeon, Program Director at CSH; Eddie Sanchez, Security Director; Charles Rabault, Chief DPS; Sharon Rogers, Lieutenant DPS; Tom Hunt, External Affairs Administrator; Pam Ahlin; Cynthia Radavsky; and Does 1-99.

Plaintiffs allege that a number of policies and procedures at CSH violate their constitutional rights (i.e., visitation restrictions, restriction of movies for private viewing, searches of dorms, seizure/restriction of possession of personal items, noises within living quarters via the PA system, police officers involvement in patient treatment plans rather than health care workers, searches of mail, job assignment and training, and residents' wages). Specific details are discussed further below. Plaintiffs seek declaratory, injunctive and monetary relief. Finally, it is important to note that each Plaintiff challenges only their conditions of confinement and not their civil commitment.

C. Plaintiffs' Claims for Relief

1. Visitation Restrictions

Plaintiffs allege their constitutional rights have been infringed by CSH's policy of not allowing visitation from anyone under the age of eighteen.

a. Fourteenth Amendment

The Constitution protects "certain kinds of highly personal relationships," Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). At a minimum, SVPs must be afforded the same rights afforded prisoners confined in a penal institution. Hydrick v. Hunter, 500 F.3d 978, 998 (9th Cir. 2007) (abrogated on other grounds). Further, a parent has a fundamental interest in maintaining a relationship with his child. Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). However, many liberties and privileges enjoyed by other citizens must be surrendered when one is rightfully incarcerated, either as an inmate or an SVP. See Overton v. Bazzetta, 539 U.S. 126, 131 (2001). Put simply, "[a]n inmate does not retain rights inconsistent with proper incarceration." Id.

The Due Process Clause of the Fourteenth Amendment protects prisoners from being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). "Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id.

With respect to prison disciplinary proceedings, the minimum procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Id. at 563--71. So long as the five minimum Wolff requirements are met, the due process clause of the 14th Amendment has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994). "Some evidence" must support the decision of the hearing officer. Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly stringent and the relevant inquiry is whether "there is any evidence in the record that could support the conclusion reached . . . ." Id. at 455--56 (emphasis added).

Here, Plaintiffs fail to state a cognizable claim as none allege sufficient facts for the Court to ascertain whether or not a liberty interest was even infringed upon. Plaintiffs complain of the prohibition of visits from relatives under the age of 18 for all patients, but there is no mention as to whether any Plaintiff has actually been unreasonably restricted from visits from his own children, and/or who, if any, of his own immediate family have been unable to visit him. Plaintiffs also fail to state what, if any, procedural due process they were provided before this restriction/prohibition was imposed. Thus, Plaintiff's claim under the Fourteenth Amendment regarding the prohibition of all visitors under the age of 18 is not cognizable at this time.

b. Equal Protection

The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). A plaintiff may establish an equal protection claim by showing that the defendant has intentionally discriminated on the basis of the plaintiff's membership in a protected class. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Under an equal protection theory, a plaintiff must show that the defendants' actions were a result of the plaintiff's membership in a suspect class, such as race. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).

If the action in question does not involve a suspect classification, such as the case here, a plaintiff may establish an equal protection claim by showing that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); San Antonio School District v. Rodriguez, 411 U.S. 1 (1972); Squaw Valley Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004); Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). To state an equal protection claim under this theory, a plaintiff must allege that: (1) the plaintiff is a member of an identifiable class; (2) the plaintiff was intentionally treated differently from others similarly situated; and (3) there is no rational basis for the difference in treatment. Village of Willowbrook, 528 U.S. at 564. If an equal protection claim is based upon the defendants' selective enforcement of a valid law or rule, a plaintiff must further show that the selective enforcement is based upon an "impermissible motive." Squaw Valley, 375 F.3d at 944; Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995).

SVPs do not constitute a suspect class. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966) and Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972). However, heightened scrutiny may be required where fundamental interests are at issue. A "heightened scrutiny standard" has been utilized when evaluating an equal protection violation under sexually violent predator statutes. See Young v. Weston, 176 F.3d 1196, 1201 (9th Cir. 1999) (rev'd on other grounds); Seling, 531 U.S. 250. In other words, heightened scrutiny will be applied where a fundamental liberty interest is at stake. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

Plaintiffs may be able to claim violations of a clearly established fundamental right. Youngberg, 457 U.S. at 315--16. Thus, a Plaintiff may be able to show that a difference in treatment between himself and other civilly committed persons violates equal protection because such treatment does not meet heightened scrutiny. At the same time, however, it cannot be said that it is firmly established that every condition of an SVP's confinement is subject to heightened scrutiny. Hydrick 500 F.3d at 998 (9th Cir. 2007). In the prison setting, prison officials need some latitude in deciding how to run prisons. The courts have consistently refused to subject each classification drawn by prison officials to heightened scrutiny. Rather, a prisoner cannot challenge the conditions of his confinement on equal protection grounds unless the discrimination against him is irrational or arbitrary. McGinnis v. Royster, 410 U.S. 263, 276 (1973).

Here again, Plaintiffs complain of the prohibition of visits from relatives under the age of 18, but fail to mention whether any of them has actually been unreasonably restricted from visits from his own children, and what, if any, of his own immediate family have been unable to visit him because of this policy. Plaintiffs fail to state whether other SVP's receive different visitation restriction(s). Plaintiffs have not, but might be able to, state a cognizable claim for violation of their rights on equal protection grounds.

c. Cruel & Unusual Punishment

Plaintiffs also allege that the visitation restrictions at CSH constitute cruel and unusual punishment in violation of the Eighth Amendment. An essential prerequisite to an Eighth Amendment claim is that the claimant is being punished. The California Supreme Court noted that "[t]he Legislature . . . made clear that, despite their criminal record, persons eligible for commitment and treatment as SVP's are to be viewed 'not as criminals, but as sick persons.'" Hubbart v. Superior Court, 969 P.2d 584, 606 (1999) (citing Cal. Welf. & Inst.Code § 6250). Because the SVPA is civil rather than criminal or punitive in nature, and Plaintiffs are not being punished, Plaintiffs have no right to make a claim under the Eighth Amendment. See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199 n. 6 ("The State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law."). Put another way, "the Eighth Amendment is not the proper vehicle to challenge the conditions of civil commitment." Rainwater v. Alarcon, 268 Fed. Appx. 531, 534 (2008).

Essentially, Plaintiffs claim that visitation restrictions amount to cruel and unusual punishment. However, this "punitive as applied" argument has already been foreclosed by the Supreme Court. See Seling v. Young, 531 U.S. 250 (2001) ("An Act, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the [Eighth Amendment] and provide cause for [redress]."). An SVP plaintiff cannot state cognizable claims regarding the conditions of their confinement under the Eighth Amendment. Accordingly, these claims will be dismissed without leave to amend.

2. Movie Restrictions

Plaintiffs claim that, after an agreement was reached between the hospital administration and the Patients Advisor Council as to content ratings and restrictions of DVD movies for patients' personal use, defendants began applying a different, much more restrictive policy, which lead to an alleged violation of their constitutional rights under the First Amendment, Ninth Amendment, Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the violation of his rights under sections 1985 and 1986.

a. First and Fourteenth Amendments

"[C]ivilly detained persons must be afforded 'more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Hydrick, 500 F.3d at 989 (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)). "[T]he rights afforded prisoners set a floor for those that must be afforded [to civil detainees]." Id. (citing Youngberg, 457 U.S. 307). When determining the rights of civil detainees, "[t]he law generally requires a careful balancing of the rights of individuals who are detained for treatment, not punishment, against the state's interests in institutional security and the safety of those housed at the facility." Id. "As is the case with prisoners, civilly committed persons retain those First Amendment rights not inherently inconsistent with the circumstances of their detention." See Turner v. Safley, 482 U.S. 78, 89 (1987).

Nonetheless, Plaintiffs' allegations regarding the DVD restrictions state cognizable claim(s) under the First Amendment and Fourteenth Amendment. Fed. R. Civ. P. 8(a); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. Specific facts are not necessary; the statement need only "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."

b. Ninth Amendment

Plaintiffs seem to allege a claim for relief for violation of the Ninth Amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const., amend. IX. The Ninth Amendment does not provide a basis upon which plaintiff may impose liability under §1983 because it does not "independently [secure] any constitutional right . . . ." Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (citations omitted); Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1029 (9th Cir. 2002) (Ninth Amendment claim properly dismissed because plaintiff's may not "double up constitutional claims"); Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (Ninth Amendment "not interpreted as independently securing any constitutional rights for purposes of making out a constitutional claim"). Accordingly, Plaintiffs' attempts at imposing liability under the Ninth Amendment fail as a matter of law are dismissed without leave to amend.

3. Search & Seizure

Plaintiffs complain that, during a lock down, super glue, a small screw driver, and a small scratching tool were found in a dorm room assigned to four men. Subsequently, the entire unit was locked down and searched. Plaintiffs complain that during this search, personal ...


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