FINDINGS & RECOMMENDATIONS
Plaintiff is a civil detainee confined at Coalinga State Hospital (Coalinga) under California's Sexually Violent Predators Act proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. This matter is before the court on defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendants contend that (1) this action is barred by the applicable statute of limitations; (2) plaintiff has failed to state a cognizable claim for violation of his rights under the substantive due process clause; (3) plaintiff has failed to allege the personal involvement of three of the named defendants in the events complained of; (4) defendants are entitled to qualified immunity; (5) plaintiff's request for prospective relief from the Department of Mental Health, not a party herein, is barred by sovereign immunity; and (6) this action is moot.
STANDARDS FOR A MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 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. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).
ALLEGATIONS OF THE COMPLAINT
Plaintiff's complaint, filed December 14, 2007, contains the following allegations. Plaintiff was committed to Atascadero State Hospital (Atascadero) in September 1998 under the Sexually Violent Predators Act. Shortly after he was admitted to Atascadero, he met with a clinician who put plaintiff on an antiandrogen medication, Depo-Provera*fn1 as a form of chemical castration to treat plaintiff's recurrent sexual fantasies. Plaintiff was maintained on DepoProvera until 2004. In 2004, defendant Dr. Gabriella Paladino took plaintiff off Depo-Provera, ostensibly because plaintiff had developed osteoperosis. Although there were medications available for osteoperosis that would have allowed plaintiff to continue the Depo-Provera, he was not offered any such medication, nor was he offered a different antiandrogen medication or surgical castration.
After he was taken off the Depo-Provera, his sexual fantasies returned, causing plaintiff significant emotional stress. Ultimately, plaintiff's attorney agreed to loan plaintiff the money for surgical castration, an orchiectomy. His attorney loaned plaintiff six thousand nine hundred dollars for the surgery, which was performed in September 2005. The surgery was a complete success.
Approximately 15 out of 850 men at Atascadero had the surgery and all but two have been released by the courts. Five of six men released by Atascadero or the Department of Mental Health have had the surgery or are on medication.
Plaintiff claims that the termination of the Depo-Provera combined with the refusal to provide him with alternative treatment, particularly surgical castration, constituted deliberate indifference to his health and safety. He seeks compensatory and punitive damages and injunctive relief in the form of an order requiring the Department of Mental Health and the State of California to allow voluntary orchiectomies for all men who elect the surgery, with the costs of the surgery paid for by the Department of Mental Health.
I. Statute of Limitations
Defendants' first contention is that this action is barred by the applicable statute of limitations. California law determines the applicable statute of limitations in this § 1983 action.
See Wilson v. Garcia, 471 U.S. 261 (1985). The applicable state limitations period is two years. See Cal. Code Civ. Proc. § 335.1; see also Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Federal law governs when plaintiff's § 1983 claims accrued and when the limitations period begins to run. Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998). Under federal law, "the claim generally accrues when the plaintiff 'knows or has reason to know of the injury which is the basis of the action.'" Id. (citations omitted).
Plaintiff's claim accrued, at the latest, in September 2005, when he underwent the surgical procedure paid for by the loan from his attorney.*fn2 This action was not filed until at least November 9, 2007, the date on which plaintiff signed his complaint. See Jones, at 926-27 ("prisoner mailbox rule" of Fed. R. Civ. P. 4(c) applies to civil detainees). Thus, ...