The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED, WITH PREJUDICE, FOR PLAINTIFF'S FAILURE TO STATE A CLAIM (Doc. 24.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Plaintiff Denis K. Rotroff ("Plaintiff") is a civil detainee proceeding pro se and in forma pauperis in this civil rights action.*fn1 This action proceeds on Plaintiff's complaint, filed November 17, 2009, against defendants Stephen Mayberg and Pam Ahlin, and John Does 1-20, for denial of freedom of expression under the First Amendment, violation of the Takings Clause under the Fifth Amendment, violation of Due Process under the Fourteenth Amendment, and breach of contract, stemming from the passage of a regulation which Plaintiff alleges will result in the nearly immediate confiscation of his laptop computer. (Doc. 1.)
I. RELEVANT PROCEDURAL HISTORY
Plaintiff filed the complaint initiating this action on November 17, 2009, along with an emergency motion for preliminary injunction to enjoin the defendants from confiscating his laptop computer. (Docs. 1, 3.) On December 3, 2009, the Court directed the United States Marshal to serve process upon defendants Pam Ahlin and Stephen Mayberg ("Defendants"). (Doc. 8.) On December 7, 2009, and March 9, 2010, Plaintiff filed a second and third motion for preliminary injunctive relief. (Docs. 10, 17.)
On April 16, 2010, Defendants filed a motion to dismiss the complaint under Rule 12(b)(6). (Doc. 24.) On May 25, 2010, Plaintiff filed an opposition. (Doc. 32.) Defendants did not file a reply to the opposition, and the motion has been deemed submitted. L.R. 230(l). Defendants' motion to dismiss is now before the Court.
II. SUMMARY OF THE COMPLAINT
Plaintiff is currently a civil detainee at Coalinga State Hospital ("CSH"), where the events at issue allegedly occurred. Plaintiff names Pam Ahlin (CSH Executive Director), Stephen Mayberg (Director of California Department of Mental Health ("DMH")), and John Does 1-20 as defendants.
Plaintiff alleges as follows. On July 28, 2006, the administration at CSH adopted Administrative Directive #654 ("AD-654"), which allowed CSH patients to purchase and own personal laptop computers, subject to certain rules to be followed by patients. AD-654 expressly stated that rules violations would be dealt with on an individual basis. Plaintiff purchased a laptop computer pursuant to AD-654. In November 2006, an amendment was made to AD-654 which changed the language of the directive to state that ownership of a laptop computer was "a privilege."
On October 6, 2009, during a settlement conference for Plaintiff's prior case,*fn2 the DMH's Legal Affairs attorney declared that "it is just too much trouble for the patients to own such devices." The attorney confirmed it is the DMH's intention to confiscate all patient-owned computers, Sony PSP playstations, and palm pilots. On October 26, 2009, the DMH adopted an emergency regulation which declares as "contraband" all electronic devices with the capability to connect to the internet, and will result in the nearly immediate confiscation of Plaintiff's laptop computer and peripheral hardware and software. The regulation, Title 9 of the California Code of Regulations, section 4350, provides:
Section 4350. Contraband Electronic Devices With Communication and Internet Capabilities. Electronic devices with the capability to connect to a wired (for example, Ethernet, POTS, Fiber Optic) and/or wireless (for example, Bluetooth, Cellular, Wi-Fi [802.11a/b/g/n], WIMAX) communications network to send and/or receive information are prohibited, including devices without native capabilities that can be modified for network communication. The modification may or may not be supported by the product vendor and may be a hardware and/or software configuration change. Some examples of the prohibited devices include desktop computers, laptop computers, cellular phones, electronic gaming devices, personal digital assistant (PDA), graphing calculators and radios (satellite, shortwave, CB and GPS). 9 CCR § 4350 (emphasis added). No notice or hearing was afforded the Plaintiff or any of the other patients at CSH. Plaintiff contends there was no "emergency," and that patients at CSH have had laptop computers for over three years without mishap or injury to the public. Plaintiff contends that he and the other patients should have been notified and given the opportunity to oppose the emergency regulation at a hearing.
Plaintiff requests monetary damages and declaratory and injunctive relief.
III. RULE 12(b)(6) MOTION TO DISMISS
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. The first step in testing the sufficiency of the complaint is to identify any conclusory allegations. Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations and quotation marks omitted). Although the court must accept well-pleaded factual allegations of the complaint as true for purposes of a motion to dismiss, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id.
After assuming the veracity of all well-pleaded factual allegations, the second step is for the court to determine whether the complaint pleads "a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949, 1950 (citing Twombly, 550 U.S. at 556, 570) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A claim is facially plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). The standard for plausibility is not akin to a "probability requirement," but it requires "more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. 556).
Defendants argue that the complaint should be dismissed based on Plaintiff's failure to state a claim for which relief may be granted under 42 U.S.C. § 1983.
Defendants argue that Plaintiff lacks standing to bring this action. "Federal jurisdiction is limited to 'actual cases and controversies.' " Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). "Article III standing is a controlling element in the definition of a case or controversy." Stormans Inc., 586 F.3d at 1119 (quoting Alaska Right to Life Political Action Comm. v. Feldman, 504 F.3d 840, 848 (9th Cir. 2007) (alteration and internal quotation marks omitted)). "[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Stormans, Inc., 586 F.3d at 1119; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81(2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61(1992)). "A plaintiff must satisfy the injury-in-fact requirement by alleging that he 'has suffered some threatened or actual injury resulting from the putatively illegal action.'" Scott v. Pasadena Unified School District, 306 F.3d 646, 656 (9th Cir. 2002) (quoting O'Shea v. Littleton, 414 U.S. 488, 493 (1974)).
"The mere existence of a statute ... is not sufficient to create a case or controversy within the meaning of Article III." Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983). Rather, there must be a "genuine threat of imminent prosecution." Id. "A plaintiff may allege a future injury in order to comply with this requirement, but only if he or she 'is immediately in danger of sustaining some direct injury as a result of the challenged official conduct and the injury or threat of injury is both real and immediate, not conjectural or hypothetical.'" Scott, 306 F.3d at 656 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks and citations omitted).
The court must consider the facts as they existed at the time that the complaint was filed. Scott, 306 F.3d at 655; Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989) ("The existence of federal jurisdiction ordinarily depends on the ...