The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff, committed to a state mental hospital, pursuant to Cal. Penal Code § 1026, having been found not guilty by reason of insanity in a criminal case, is proceeding pro se in a civil rights action. Pending before the court are: 1) a motion to dismiss, filed on March 3, 2011 (docket # 18), brought by defendants Benchman, Cate, DeMorales, Griffith, Holt, Knapp, Mayberg, Mills, Radavsky, Schwarzenegger, Vazquez,*fn1 Walker and the State of California, to which plaintiff filed his opposition on May 2, 2011 (having been granted an extension of time), after which these defendants filed a reply on May 6, 2011; and 2) a motion to dismiss, filed on May 4, 2011 (docket # 23), brought by defendants County of San Luis Obispo, Patrick Hedges, Robert Thompson, and Kelly Kenitz, to which plaintiff filed an opposition on May 31, 2011. Plaintiff's Allegations Plaintiff, who was involuntarily civilly committed to a state hospital pursuant to Cal. Pen. Code § 1026 when he was found not guilty by reason of insanity of a criminal offense, sets forth four (of five) claims regarding alleged violations of his Fourteenth Amendment rights and his rights as a mentally disabled person under the Americans with Disabilities Act (ADA) when he was, on March 17, 2009, while in the custody of the Department of Mental Health and Atascadero State Hospital (ASH), transferred first to San Luis Obispo County Jail (SLO CJ), then to the custody of the California Department of Corrections and Rehabilitation (CDCR) and placed in Wasco State Prison and then California State Prison-Sacramento (CSP-Sac) until his return to ASH on August 17, 2009 (some five months later). See Complaint. He asserts defendants were deliberately indifferent and showed willful disregard for Solano County Superior Court's jurisdiction with an improper custody transfer in violation of state and federal law and the ADA, regarding providing disabled "the most integrated and least restrictive setting"). See id. Plaintiff also makes a fifth claim of a violation of his due process rights and his rights under RLUIPA, based on an allegation that ASH employees intentionally destroyed plaintiff's personal property, containing numerous sacred Native American religious items while he had been transferred away. Id. Plaintiff seeks relief in the form of compensatory and punitive damages, declaratory and injunctive relief. Id.
Legal Standard for Motion to Dismiss.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility 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.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
In the first motion to dismiss, brought by thirteen of the defendants, Benchman, Cate, DeMorales, Griffith, Holt, Knapp, Mayberg, Mills, Radavsky, Schwarzenegger, Vazquez, Walker, in their individual and official capacities, and the State of California, in its official capacity, the following grounds are raised: 1) the State of California may not be sued under § 1983; 2) plaintiff failed to allege that any of the conditions of his confinement were punitive; 3) the conditions of plaintiff's confinement did not implicate a liberty interest; 4) there are sufficient post-deprivation remedies for the alleged unauthorized deprivation of his property available to plaintiff; 5) plaintiff failed to allege facts to show that any defendant deprived him of his right to equal protection; 6) plaintiff alleged no facts showing defendants knew or suspected another prisoner would attack him or that he needed mental health treatment; 7) plaintiff did not allege facts showing any defendant participated in any claimed violation of his constitutional rights; 8) defendants did not violate any constitutional right and are entitled to qualified immunity. Notice of Motion to Dismiss at dkt. # 18; Memorandum of Points and Authorities in Support of [First] Motion to Dismiss at docket # 18-1 (hereafter, MTD1), p. 2.
At the outset, the court observes that defendants correctly characterize plaintiff's claims as having been brought under the Fourteenth Amendment, the Americans with Disabilities Act, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). MTD1, p. 1.*fn2 Defendants then make the erroneous leap that, upon screening, the undersigned only permitted plaintiff to proceed on his claims under § 1983. Id. However, plaintiff accurately avers that he has been permitted to proceed on all claims. First Opposition (Opp.1), p. 2. While the screening order, filed on October 6, 2010 (docket # 8) makes reference, in standardized language, to the complaint's having stated a cognizable claim pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b), there are no findings and recommendations recommending dismissal of any claims nor is there any order dismissing other allegations. In listing the State as a party, plaintiff asserts that he is suing for violations of his constitutional rights and his rights under the ADA. Complaint, p. 4. Moreover, and more tellingly, the court found the complaint appropriate for service upon the State as a defendant, which would not have occurred if plaintiff were proceeding against the state under § 1983, as it is without doubt that the Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) ( per curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). In his opposition, plaintiff, while he correctly contends that the State may be sued for violations of the Rehabilitation Act and Title II of the ADA, "in light of plaintiff[']s limited legal knowledge, in the interest of the court[']s economy...." also states "the plaintiff has no opposition to the State being dismissed as a named defendant if this court rules it appropriate." Opp.1, p. 4. In reply, defendants characterize this statement as a concession that this defendant should be dismissed. However, as defendants appear to have been confused as to what bases plaintiff was proceeding under, the court finds that the State of California should not be dismissed as a defendant with respect to plaintiff's ADA claims.
Title II of the ADA prohibits a public entity from discriminating against a qualified individual with a disability on the basis of a disability. 42 U.S.C. § 12132 (1994); Weinrich v. L.A. County Metro Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). To state a claim under Title II, the plaintiff must allege four elements: 1) the plaintiff is an individual with a disability; 2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; 3) the plaintiff was either excluded from participation in or denied the benefits by the public entity; and 4) such exclusion, denial of benefits or discrimination was by reason of the plaintiff's disability. Weinrich, 114 F.3d at 978.
Under the ADA, plaintiff may bring a claim pursuant to Title II of the ADA against state entities for injunctive relief and damages. See Phiffer v. Columbia River Correctional Institute, 384 F.3d 791 (9th Cir. 2004); Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002). However, he cannot seek damages pursuant to the ADA against the defendants in their individual capacities. Eason v. Clark County School Dist., 303 F.3d 1137, 1144 (9th Cir. 2002), citing Garcia v. S.U.N.Y. Health, 280 F.3d 98, 107 (2d Cir. 2001). To the extent he makes claims of violations of the ADA against any individual defendant, plaintiff could proceed only to the extent that plaintiff seeks injunctive relief and has sued such individual defendant in an official capacity. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Since, however, the State is named as a defendant, the individual defendants should be dismissed.
As to plaintiff's claim V (summarized above), in which plaintiff seeks to implicate several ASH employees for, inter alia, a violation of his rights under RLUIPA based on his allegation of intentional destruction or disposal of his personal property, including numerous sacred Native American religious items while he was transferred away, it is unclear whether plaintiff meets the threshold requirement for proceeding. Under 42 U.S.C. § 2000cc-1 (a)(1)(2):
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution...even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person - -
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Arguably, plaintiff fails to implicate an institutional regulation, policy or procedure that burdens the practice of his religion. Rather, he claims a lack of enforcement of, or a deviation from, an existing policy or procedure as regards the manner in which his religious objects and other personal property were stored for the period when he was taken from the hospital leading to the possible destruction of his personal, religious property. To proceed under RLUIPA, plaintiff would have to challenge a program, policy or procedure which allegedly placed a substantial burden on him limiting the practice of his religion. See, e.g., Warsoldier v. Woodford,418 F.3d 989 (inmate challenge to prison grooming policy under RLUIPA). Nevertheless, plaintiff will be permitted to proceed on this portion of Claim V at this point, particularly since defendants failed to address the question.
However, RLUIPA provides no basis for suits against individuals in their individual capacityy. See Rupe v. Cate, 688 F. Supp. 2d 1035, `045-46 (E.D. Cal. 2010) and cases cited therein. Moreover, sovereign immunity forestalls plaintiff's claims against defendants in their official capacities for money damages under RLUIPA for allegedly imposing a substantial burden on the practice of his religion. Alvarez v. Hill, __ F.3d ___, 2012 WL 164507 *1 (9th Cir. Jan. 20, 2012), citing Sossamon v. Texas, __ U.S.___, 131 S. Ct. 1651, 1655 (2011) (by accepting federal funding states do not waive their sovereign immunity to suits by private parties for money damages under RLUIPA). Thus all claims for damages under RLUIPA must be dismissed.
To the extent plaintiff seeks prospective injunctive relief plaintiff need not proceed against the individual defendants, rather the court will infer that the State is a named defendant with respect to this claim, as plaintiff would be permitted to proceed against any individual defendant in his or her official capacity only. Therefore, the court will recommend dismissal of all individual defendants in their official and individual capacities as to plaintiff's RLUIPA claim. (The court addresses the due process violation he claims for alleged mis-handling of his personal property separately below.)
Thus, to the extent plaintiff has made cognizable claims against the defendant State of California under the ADA and RLUIPA, such claims will proceed as unchallenged at this point (injunctive relief only under RLUIPA), but the court will recommend the dismissal of all individual defendants named with respect to these claims, in both their individual and official capacities. Defendant State of California will also remain as a defendant under the ADA for relief in the form of money damages as well.
As to all five of his claims, plaintiff alleges violations of his rights to due process and equal protection under the Fourteenth Amendment as a person involuntarily civilly committed pursuant to Cal. Penal Code § 1026, et seq., and/or his rights as a pretrial detainee and claims violations of his rights as a mentally disabled individual under the ADA. Complaint, pp. 7-22. In his first claim (I), plaintiff contends that on March 17, 2009, he was placed alone in a locked unit and asked by the Atascadero State Hospital (ASH) Department of Police Services (DPS) about his alleged involvement in a physical altercation with another patient but refused to say anything after being cut-off in mid-sentence, was directed to submit to photos and to remove his clothes. Plaintiff was informed, later that day, that he was being moved to another unit into "administrative isolation" but was not told what that would entail; in addition, plaintiff did not receive a review by a psychiatric treatment team or ASH administrators before being moved. Defendant Benchman told plaintiff his personal property would be taken care of when DPS officers gave their approval. Complaint, pp. 7-8.
Plaintiff was locked into an isolation room and at about 5:00 p.m., placed in waistchains and shackles by AHS DPS, told he was under arrest and "administratively transferred" to San Luis Obispo County Jail. Id., at 8. Plaintiff contends that at all times, he was under the care and authority of DMH and ASH, by order of the committing court, pursuant to Cal. Pen. Code § 1026, and that defendants Mayberg, Director of the California Department of Mental Health (DMH); Radavsky, DMH Deputy Director of Long Term Care; DeMorales, Executive Director of ASH; and Knapp, Medical Director for ASH, failed to formulate and/or enforce a policy, procedure or practice that would have prevented plaintiff's transfer of custody from ASH to San Luis Obispo County Jail (SLO CJ), a more restrictive setting; failed to properly review or inform him of a change in his custody status; and failed to ensure proper treatment for plaintiff, including mental health care treatment, while he was confined in the county jail. Id., at 8.
Claim II centers on the allegedly "restrictive" conditions under which plaintiff was housed at San Luis Obispo County Jail (SLO CJ) as of March 17, 2009. Complaint, p. 9. Plaintiff, a pretrial detainee, was put on "full restraint" status in accordance with jail "practice, policy and procedures for mental health patients received from ASH." Id. Plaintiff was compelled to shower, use the dayroom and phone, and go for yard exercise in waistchains and shackles. Id. Plaintiff claims he was provided nothing but a towel to cover himself other than for yard time or else he would have been forced to shower in his clothes while restrained by chains. Id. Plaintiff avers that these conditions were more restrictive than those "endured" by the SLO CJ general population. Id. From March 17, 2009 to June 18, 2009, he was housed in "disciplinary isolation" although he had no disciplinary problems at SLO CJ; when plaintiff spoke to defendant Thompson, senior classification officer, repeatedly asking for a change in housing and treatment, but was told that the classification, isolation, restrictions and housing to which he was subject arose from his being an ASH patient. Id., at 10. Plaintiff was told that he could not file a grievance related to these issues pursuant to SLO CJ policy with respect to ASH patients. Id. Plaintiff was also excluded during this time from any mental health treatment or services as a result of SLO CJ policy or practice of excluding patients from ASH from proper care for their disabilities; plaintiff states these conditions of confinement were significantly worse than those at ASH under DMH. Id.
Plaintiff alleges that defendants Hedges, Sheriff of San Luis Obispo County; Thompson, SLO CJ Classification Sergeant; and Kenitz, SLO CJ Correctional Lieutenant, actively enforced the discriminatory practices and policies of SLO CJ referenced above with respect to those involuntarily civilly committed to ASH under Cal. Pen. Code § 1026. Complaint, pp. 5,6, 10-11. Defendants Mayberg, DeMorales, and Knapp failed to enforce a policy, practice or procedure to ensure proper treatment, including mental health care, for plaintiff while housed at SLO CJ. Id., at 11. Defendant County of San Luis Obispo (Board of Supervisors) actively pursued a policy and practice of failing to formulate or enforce a policy of delivering adequate mental health care to plaintiff. Id.
Plaintiff also alleges that defendant State of California failed to formulate and provide proper standards of mental health care in entities or agencies within the state, not limited to SLO County and its jail. Complaint, p. 11. Defendant Schwarzenegger failed to provide adequate mental health care standards for entities operating in the state, including SLO County and jail, and failed to enforce proper policies, procedures and practices to make sure the entities and agencies provided services and treatment for plaintiff for his mental disability. Id.
In claim III, plaintiff was arraigned in SLO County Superior Court on March 20, 2009, by agents of defendant SLO County and from that date until June 3, 2009, although aware of plaintiff's status as an ASH § 1026 civil committee, neither the agents nor the court inquired into his mental capacity. Complaint, p. 12. On June 3, 2009, plaintiff was ordered committed to the CDCR by SLO County notwithstanding the prior jurisdictional authority of the Solano County Superior Court. Id., at 13. Plaintiff's attorney informed the SLO Court that plaintiff was already committed to the DMH and ASH as an NGI (not guilty by reason of insanity). Id. Although notified on June 12, 2009, of the conclusion of plaintiff's court proceedings and of his commitment to CDCR, pending transfer, personnel at ASH, ASH DPS, and DMH failed to inform defendant SLO County that DMH had custody of plaintiff pursuant to another court's prior order. Id. On June 18, 2009, plaintiff was transferred to CDCR, and on June 26, 2009, plaintiff was attacked by his state prisoner cellmate and injured. Id.
Plaintiff alleges that defendants Mayberg, Radavsky, DeMorales and Knapp are responsible for having failed to implement/enforce a policy or procedure to prevent the transfer of plaintiff's custody to the CDCR and a more restrictive setting, and for failing to ensure mental health treatment for plaintiff at CDCR as well as for failing to protect him from assault by state prisoners. Id. Plaintiff also claims that defendant Holt, chief of AHS DPS, although informed of it, failed to prevent plaintiff's transfer, resulting in violations of his constitutional rights and his injury. Id. Plaintiff concedes that "the courts" followed the established guidelines with respect to convicting him and staying his sentence due to his prior P.C. § 1026 commitment, plaintiff faults the court and defendant SLO County for not having prevented his transfer. Id., at 14. Despite his concession with regard to having been convicted in SLO County Superior Court and having been given a stayed sentence, plaintiff alleges defendant Schwarzenegger and defendant State failed in implementing proper guidelines for defendant SLO County "and its judicial system" with regard to his having been sentenced to CDCR. Id.
In claim IV, plaintiff alleges that he was taken into custody at Wasco State Prison and compelled to stand naked for several minutes in front of inmates and female officers and support staff and "to spread his buttocks and squat several times," after which he was housed with "other state prisoners" in the reception center. Complaint, p. 15. On June 26, 2009, within two or three minutes of a state prisoner having been placed in his cell, plaintiff was attacked by him, after which plaintiff was placed into a "'Stand Up' cage and forced to remain there" for several hours while handcuffed before being transported to Kern Valley Medical Center. Id., at 15-16. After having been "accused of a 'horrific crime," plaintiff was forced to submit to a "'rape kit'" procedure, his only alternative "to clear his name." Id., at 16. ...