The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge Sitting by designation
Riley Noonkester is in civil detention in a California hospital as a sexually violent predator (SVP). His complaint under 42 U.S.C. § 1983 alleges constitutional violations during his periodic confinement at Tehama County Jail in 2003, 2005 and 2006 for re-commitment as an SVP. Noonkester originally sued in 2003 with two co-plaintiffs, but their claims were severed and each was instructed to file an amended complaint. When Noonkester failed to do so, his case was dismissed. A co-plaintiff's case proceeded to summary judgment on many of the same claims, and the magistrate judge made extensive findings and recommendations, Sumahit v. Parker, No. CIV S-03-2605, 2009 WL 2879903 (E.D. Cal. Sept. 3, 2009), that were adopted in full by the district judge, No. CIV S-03-2605, 2009 WL 4507723 (E.D. Cal. Dec. 1, 2009). Given the similarities between the cases, throughout this order I reference the rulings in Sumahit where relevant.
Noonkester eventually filed a new complaint. Defendant TransCor America filed a motion to dismiss, which was granted. The other defendants-the county and its sheriff-moved for summary judgment. The court now grants in part and denies in part the motion for summary judgment, and orders mediation.
1. Contrary to local rule 260(b), Noonkester failed to "reproduce the itemized facts in the Statement of Undisputed Facts and admit those that are undisputed and deny those facts that are disputed, including with each denial a citation." E.D. Cal. R. 260(b). But because Noonkester is a pro se civil detainee, the court "must consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [he] attested under penalty of perjury that the contents . . . are true and correct." Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
2. Noonkester filed his complaint on February 13, 2006. Section 1983 doesn't contain a statute of limitations, so this court applies the forum state's statute of limitations for personal injury actions and its law of tolling. See Canatella v. Van de Kamp, 486 F.3d 1128, 1132--33 (9th Cir. 2007). Under California's two-year statute of limitations, anything that occurred before February 13, 2004, is barred. Cal. Civ. Proc. Code § 335.1. Statutory tolling doesn't apply to civil detainees. See Blanas, 393 F.3d at 927. Equitable tolling is applicable to a "continuously confined civil detainee who has pursued his claim in good faith."
Id. at 930; see also Fink v. Shelder, 192 F.3d 911, 916 (9th Cir. 1999). But Noonkester didn't face the types of major obstacles to pursuing his claim found in Blanas, and doesn't offer any explanation for why he failed to file an amended complaint after his first suit was severed, so he doesn't qualify for equitable tolling. Below, I note which claims are barred by the statute of limitations.
3. Noonkester alleges that he was treated as a prisoner even though he was a civil detainee. He relies on Blanas for the proposition that civil detainees "are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Blanas, 393 F.3d at 931 (quoting Youngberg v. Romeo, 457 U.S. 307, 321--22 (1982)). Blanas held that, under the Fourteenth Amendment, SVPs awaiting commitment or, like Noonkester, re-commitment deserve conditions of confinement that aren't punitive. Id. at 932. But such detainees are subject to legitimate, non-punitive conditions designed for "ensuring a detainee's presence at trial, maintaining jail security, and effective[ly] manag[ing] a detention facility." Id. Under Blanas, if a civil detainee is treated the same as a penal inmate or pretrial criminal detainee, that treatment is presumed punitive. Id. at 934. But a defendant's explanation of legitimate, non-punitive purposes can rebut that presumption. Id.
Conditions of Confinement
SVPs must be housed separately because their convictions for sexual offenses against children leave them at risk of assault from other inmates. Tehama County is small and its jail doesn't have a separate facility for the occasional SVP housed there temporarily for re-commitment hearings. So the County houses SVPs in the least restrictive custody available: the Special Unit House (SHU) or "cellside" when the SHU is unavailable. Clay Decl. ¶¶ 3--5.
When Noonkester was held cellside, he could use the shared dayroom only when no penal inmates were there (for his own protection), and he generally got only an hour per day there, though some days he didn't even get that. He complains that this amounted to punitive treatment worse than that of penal inmates. Amended Complaint, Memorandum of Points and Authorities at 5--6, 8.
Under Blanas, because Noonkester received the same or worse access to the dayroom as penal inmates, the treatment is presumed punitive. Defendants allege that Noonkester received extra time in the dayroom when possible, but they present neither specific evidence nor justification for why Noonkester didn't get to use the dayroom whenever no penal inmates were there. Compare Plaintiff Depo. at 106, with Clay Decl. ¶ 16. Defendants haven't overcome the Blanas presumption, and there's a factual dispute here. See Sumahit, 2009 WL 2879903, at *16--17.
Noonkester alleges that, when he was cellside, he was given such "infrequent and sporadic" access to the exercise yard as to qualify as "creating a punitive environment." Oppos. to Summary Judgment at 15. Defendants provide no evidence on what typical treatment was for penal inmates, merely alleging that Noonkester's treatment was "equal or better" than that given to penal inmates, so they haven't overcome the presumption created by Noonkester's allegations of ...