The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) and is proceeding through counsel with an action under 42 U.S.C. § 1983. CDCR has filed a motion to dismiss the claims levied against it in the Fifth Amended Complaint. See Dkt. No. 97.
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 (DMH) 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 obtains only under state tort law.
III. Screening, proper defendants and previous ruling dismissing DMH
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).
On January 11, 2012, DMH filed a motion to dismiss the claims against it. The undersigned found that because the director of DMH had been sued in his official capacity only, plaintiff could make no claim for damages or for retrospective injunctive relief because state agencies and officials are immune from such claims under the Eleventh Amendment. See Findings and Recommendations at 5 (May 3, 2012, Docket No. 90) (citing Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004), and Holley v. CDCR, 599 F.3d 1108, 1111 (9th Cir.2010)). The undersigned further found that, as to plaintiff's claim for prospective injunctive relief, including an order requiring DMH to accept transfer of plaintiff's custody back from CDCR, the court should abstain under Younger v. Harris, 401 U.S. 37 (1971). See Findings and Recommendations at 7-14 (Docket No. 90). The court adopted the findings and recommendations in full, and DMH was dismissed from the case without prejudice. See Order (Docket No. 94).
IV. CDCR's motion to dismiss
CDCR moves for dismissal pursuant to Federal Rule of Civil ...