The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is an inmate with the California Department of Corrections and Rehabilitation (CDCR) proceeding through counsel with an action under 42 U.S.C. § 1983. The Department of Mental Health (DMH) has filed a motion to dismiss the fifth amended complaint. The court heard the motion on February 15, 2012, and ordered supplemental briefing, which the parties have timely provided.
In 1984, plaintiff stood trial in the Superior Court of Orange County for certain sex offenses and was found not guilty by reason of insanity (NGI). Pursuant to California Penal Code § 1026.5, the Superior Court committed him to the custody of the California Department of Mental Health for a maximum term of eighty-one years. In 1996, the Superior Court found that plaintiff "presents a high escape risk and a danger to others" and concurred with DMH's recommendation that he be transferred to the custody of CDCR pursuant to California Welfare and Institutions Code § 7301. See First Am. Pet., Second Exhibit F (Docket No. 25).*fn1 That statute states that an inmate at a state hospital may be transferred to CDCR's custody if he "needs care and treatment under conditions of custodial security which can be better provided within the Department of Corrections...." The statute also requires "the approval of the Director of Corrections" to effect the transfer of an inmate from DMH to CDCR. The statute is silent on the process by which an inmate would be transferred back to the custody of DMH.
By letter to the Director of DMH, dated November 20, 1997, the Director of CDCR agreed to accept custody of plaintiff and another state hospital committee. That letter also stated that "[i]f, in the future, CDC custodial and clinical staff determine that care and treatment under the conditions of custodial security provided by CDC are no longer needed, CDC will initiate return of the individuals to a DMH facility." First Am. Pet., Exhibit M (Docket No. 26). Since then, CDCR has found that plaintiff no longer presents an escape risk and has recommended several times that he be returned to DMH. Id. at Exhibit N. However, DMH has written to CDCR that it still regards petitioner an unacceptable escape risk and has no intention of accepting him back into its custody until 2065, "when his CDC time expires." Id. at Exhibit O; see also Exhibit N at 28, 31.
Plaintiff initially challenged his continuing custody with CDCR through a complaint alleging violations of the Civil Rights Act, 42 U.S.C. § 1983, filed February 7, 2006, in the Central District of California. That court immediately transferred the case to this court, where it was received on February 13, 2006. On April 25, 2007, the court sua sponte ordered that this action be re-designated as one for writ of habeas corpus under 28 U.S.C. § 2254. See Docket No. 11. The court also granted the plaintiff-petitioner's request to proceed in forma pauperis and appointed him counsel. Id. Then, on January 25, 2010, the court found that plaintiff-petitioner could no longer proceed under § 2254 on the claims as pled in the second amended petition and gave him leave to file an amended complaint under § 1983. See Findings and Recommendations at 7-10 (Docket No. 55). The Fifth Amended Complaint is now the operative pleading before the court.
II. Allegations of the Fifth Amended Complaint
Plaintiff primarily complains about due process violations in his transfer to CDCR's custody in 1997 and the lack of any hearing regarding his custody ever since. He alleges that under the terms of his court-ordered commitment to DMH in 1984, he "was to be provided the right to a sanity hearing each year thereafter." Fifth Amended Complaint, ¶ 12A. He avers that he was entitled to such a hearing as recently as August 2010, but "both the DMH and CDCR failed to provide him with that hearing." Id. He alleges that, in transferring him to CDCR, the director of DMH, Stephen W. Mayberg, "endorsed the alteration of the commitment into a CDCR sentence." Id. at ¶ 12B. Plaintiff also complains that he has not received adequate mental health treatment since his transfer to CDCR's custody and has been denied his right to practice his religion as a Native American. See id. at ¶¶ 12D, 23.
The Fifth Amended Complaint enumerates five causes of action. First, it demands injunctive relief in the form of an order that he be released from CDCR's custody, "as he is no longer classifiable as insane." Id. at ¶ 17. As an alternative to that relief, it asks that CDCR be ordered to return him to the custody of DMH. Id. Second, it seeks injunctive relief "wherein the court orders [DMH] to resume custody of [plaintiff's] person and afford him all the rights and benefits due an individual in his position, a person found not guilty by reason of insanity, committed to the custody of the DMH." Id. at ¶ 20. Third, it asserts various claims for violations of plaintiff's rights under the First, Fourth, Fifth, Sixth and Eighth Amendments of the Constitution. Fourth, it alleges plaintiff has been deprived his right to substantive due process under the Fourteenth Amendment. Fifth, it alleges intentional and negligent infliction of emotional distress, a claim that only obtains under state tort law.
III. Screening and proper defendants
On December 12, 2011, the court conducted the screening analysis
28 U.S.C. § 1915A and found that plaintiff could proceed on the
following claims: (1) for an injunctive order requiring DMH to accept
the transfer of plaintiff's custody from CDCR; (2) for violation of
his First Amendment right to practice his religion as a Native
American; (3) for deliberate indifference to his mental health needs;
(4) for unconstitutional conditions of confinement; and (5) for
deprivations of due process.*fn2 The court recommended
to the district judge assigned to this case that defendants other than
DMH and CDCR be dismissed from the case without prejudice.*fn3
The district judge assigned to this case adopted that
recommendation but reinstated the plaintiff's state law claims of
intentional and negligent infliction of emotional distress, which the
court had originally screened out. See Order (Docket No. 88).
Because CDCR was already a defendant in this case, there was no reason to serve Cate as Director of CDCR after the screening order of December 12, 2011. However, neither DMH nor Mayberg, its Director, had been served, so the court allowed plaintiff's counsel to effect service on DMH through its agent of service or other official who can effectively receive service under Fed. R. Civ. P. 4(j)(2). The defendants were ordered to respond to the Fifth Amended Complaint in accordance with Fed. R. Civ. P. 12(a). See Order at 9 (Docket No. 73). DMH has filed the instant motion to dismiss, but CDCR has not filed anything in response to the screening order.
IV. DMH's motion to dismiss
DMH argues first that it is immune from suit under the Eleventh Amendment.
Insofar as plaintiff seeks an injunction ordering his transfer back into DMH's custody or any other prospective injunctive relief, DMH is not immune.
The Fifth Amended Complaint names Mayberg and Cate as defendants in their official capacities only. There is no allegation of individual liability anywhere in the Fifth Amended Complaint.
When a plaintiff names a state actor as a defendant in his official capacity, "the real party in interest... is the governmental entity and not the named official[.]" Hafer, 502 U.S. at 25. In other words, Mayberg in his official capacity and DMH are legally identical in this suit. Furthermore, "the Eleventh Amendment permits suits for prospective injunctive relief against officials acting in violation of federal law." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). A federal court may order measures ancillary to the appropriate prospective relief. See Edelman v. Jordan, 415 U.S. 651, 668 (1974).
State agencies and officials are immune from remedial or retrospective relief, such as damages, in official capacity lawsuits unless Congress has abrogated that immunity under its power to enforce the Fourteenth Amendment or the state has waived its immunity. See Frew, 540 U.S. at 437; Holley v. CDCR, 599 F.3d 1108, 1111 (9th Cir. 2010). There is no such waiver under § 1983. Therefore, ...