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Timothy O'keefe v. Jerry Brown

December 28, 2012

TIMOTHY O'KEEFE, PLAINTIFF,
v.
JERRY BROWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On July 5, 2012, defendants Brown and Cate filed a motion to dismiss this action, alleging that plaintiff failed to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). On November 2, 2012, plaintiff filed an opposition; on September 7, 2012, defendants Brown and Cate filed a reply. On October 23, 2012, defendant Higgins filed a motion to join in the motion to dismiss; on November 2, 2012, plaintiff filed an opposition to defendant Higgins' motion. As set forth more fully below, defendants' motions to dismiss are granted, but plaintiff is granted leave to file a third amended complaint.

II. Plaintiff's Allegations

In his original complaint, filed October 5, 2011, plaintiff alleged that he was not

receiving adequate and appropriate psychiatric treatment in a safe and therapeutic environment for his axis 1 diagnosis of exhibitionism, voyeurism, paraphilia, and other sexual problems. (Dkt. No. 1 at 1.) Plaintiff stated that he was about to be transferred to R.J. Donovan in San Diego, which has no adequate psychiatric treatment for plaintiff. (Dkt. No. 1 at 3.)

In his amended complaint, filed November 7, 2011, plaintiff alleged that he was not receiving adequate or appropriate psychiatric treatment in a safe and therapeutic environment for his mental health diagnoses of exhibitionism, voyeurism, and paraphilia. (Dkt. No. 5 at 2.) Plaintiff alleged that defendants were deliberately indifferent to plaintiff's serious medical needs.

In his second amended complaint, filed January 27, 2012, plaintiff claims his "issue is with the entire prison system in California." (Dkt. No. 21 at 1.) Plaintiff alleges that his Eighth and Fourteenth Amendment rights are being violated because plaintiff "is not receiving adequate and appropriate psychiatric care for his mental health diagnosis in a safe and therapeutic environment." (Id. at 4.) Plaintiff claims he is suffering "much mental and physical pain and anguish" and that he "has chronic suicidal thinking and feels hopeless and helpless." (Id.) Plaintiff recounts his long history of mental disorders, as well as the legal consequences for his actions resulting from his "deep-rooted psychosexual problems," including exhibitionism. Plaintiff provided copies of 2001 letters from District Attorney Kerry Wells and defense attorney William Apgar who both recommended that plaintiff receive sexual offender treatment at Atascadero or CMC East, California Men's Colony. (Dkt. No. 21 at 15, 17.) Plaintiff provided a copy of the 2001 report of licensed psychologist Kris Mohandie, Ph.D., who recommended, inter alia , that plaintiff receive adequate treatment which addresses plaintiff's affective disorder (depression), as well as his sexual offense related disorders; intensive psychological treatment to address his longstanding, recurrent, severe depression and serious suicidal ideation, including a psychiatric medication evaluation; and mandatory involvement in psychological treatment for his voyeurism and exhibitionism. (Dkt. No. 21 at 42.)

Plaintiff claims he has raised this issue of inadequate psychiatric treatment for his mental health diagnoses through inmate appeals, as well as through correspondence with various state officials, including the named defendants. Plaintiff alleges that in 2005, the Board of Parole Hearings recommended that plaintiff get psychiatric treatment for his criminal sexual proclivities. (Dkt. No. 21 at 8, 72.) Plaintiff provided a copy of an October 5, 2011 letter from Jay Atkinson, PRA Coordinator, Offender Information Services Branch, Office of Research, California Department of Corrections and Rehabilitation ("CDCR"), who stated that "[a]t this time there is no treatment for sex offenders offered in state prison." (Dkt. No. 21 at 45.)

Plaintiff seeks, inter alia , a court order requiring defendants to provide adequate and appropriate mental health care in a safe and therapeutic environment that is consistent with the plaintiff's mental health diagnosis of exhibitionism, voyeurism, and paraphilia. (Dkt. No. 21 at 12.) In the alternative, if such treatment is not available through the CDCR, plaintiff seeks an order requiring defendants to transfer plaintiff to the Coalinga State Mental Hospital for treatment. (Dkt. No. 21 at 13.)

III. The Parties' Arguments

A. Motion to Dismiss

Defendants move to dismiss plaintiff's claims on multiple grounds. First, defendants contend plaintiff fails to state a cognizable due process claim because the Ninth Circuit has held that an inmate serving a criminal sentence does not possess a constitutionally protected liberty interest in sex offender treatment. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461 (9th Cir. 1989).

Second, defendants contend that plaintiff fails to state a cognizable Eighth Amendment claim based on plaintiff's claim that he is denied sex offender treatment because a sex offender may or may not suffer from a mental disorder. In addition, defendants contend that sex offender treatment is a rehabilitative treatment used to ready inmates for return to society, and at least one court has held that denial of sex offender treatment to sex offenders does not qualify as deliberate indifference, citing Bell v. Holder, 2011 WL 7472930, at *8 (M.D. Ala. Nov. 14, 2011) (prisoners do not have a general constitutional right to participate in a specific rehabilitation program, and the failure to provide rehabilitation does not constitute cruel and unusual punishment). In connection with plaintiff's claim that defendants failed to provide him adequate treatment for his diagnoses of exhibitionism, voyeurism, and paraphilia, defendants contend that plaintiff failed to allege sufficient facts to support this claim. Specifically, plaintiff failed to allege specific facts as to what particular treatment, medication, or evaluation was allegedly denied, nor does he identify the defendant who allegedly denied such. (Dkt. No. 46-1 at 8.) Defendants argue that plaintiff's claim that he received no mental health treatment is contradicted by an exhibit in which plaintiff admits he received some psychiatric treatment (dkt. no. 46-1 at 9), and that another exhibit reflects plaintiff was recently treated at Salinas Valley Psychiatric Program -- Intermediate Care Facility. (Id.)

Third, defendants argue that plaintiff's claims for injunctive relief are barred in light of Coleman v. Schwarzenegger, No. 2:90-cv-0520 LKK JFM (E.D. Cal.), a class action suit concerning mental health care in California state prisons. Defendants contend that because exhibitionism is a subject matter under the jurisdiction of Coleman, plaintiff's claim for equitable relief should be dismissed for failure to state a claim.

Finally, defendants contend that plaintiff's settlement of claims in O'Keefe v. Gomez, et al., 2:92-cv-0104 JFM, bar litigation of those claims in this action according to the doctrine of res judicata . Defendants point to the language of the Stipulated Settlement and Release, which states the parties' intent to settle and waive all future claims on the issue:

Plaintiff does for himself, his heirs, executors, administrators, attorneys, representatives, agents and assigns, release and expressly waive the right to pursue any and all claims, demands, liabilities, actions, suits, causes of action, obligations, controversies, costs, expenses, damages, losses and judgments of every kind or character in law, equity or otherwise, including attorney's fees and costs, against the defendants, named and unnamed, and the State of California, its agencies and departments, officers, employees, agents or assigns which plaintiff has based upon or by reason of, in whole or in part, any act, omission to act, transaction, practice, conduct, matter, cause or thing of any kind or charge directly or indirectly arising out of or in anyway connected with the alleged events which are the subject of the action.

(Dkt. No. 47-3 at 4.)

B. Plaintiff's Opposition

In opposition, plaintiff clarifies that he is not seeking "sex offender" treatment, but rather argues that he is not receiving adequate and appropriate psychiatric treatment in a safe and therapeutic environment for his Axis 1 diagnosis of exhibitionism, voyeurism, and paraphilia, because no such treatment exists. (Dkt. No. 58-1 at 1, 8.) Plaintiff asserts that defendants are violating his Eighth Amendment rights because the lack of treatment constitutes deliberate indifference to plaintiff's serious medical needs. Plaintiff concedes that he has received some psychiatric treatment, but contends it is not "close to the psychiatric treatment that Kris Monhandle recommended," or treatment that "effectively addresses plaintiff's mental health diagnosis." (Dkt. No. 58-1 at 9.) Plaintiff relies on his Exhibit A for the proposition that there is no treatment for exhibitionism, voyeurism and paraphilia in the CDCR. (Dkt. No. 58-1 at 13.) Exhibit A is PRA Coordinator Atkinson's October 5, 2011 letter stating that "there is no treatment for sex offenders offered in state prisons." (Dkt. No. 58-1 at 16.)

Plaintiff claims that he sued the named defendants because "this issue encompasses all the prisons within the [CDCR]." (Dkt. No. 58-1 at 7.) Plaintiff alleges that defendant Cate is responsible for all the prisons within the prison system, and that defendant Brown, as Governor, is responsible for what defendant Cate does. (Id.)

Plaintiff contends defendants violated his due process rights because he has a legitimate right to treatment for his criminal sexual proclivities, relying on Beebe v. Heil, 333 F. Supp.2d 1011, 1015 (D. Col. 2004). Plaintiff also contends his due process rights are violated by the failure to provide such treatment, because the Board of Parole Hearings recommended that plaintiff receive psychiatric treatment for his exhibitionism, voyeurism, and paraphilia, and plaintiff will be unable to obtain parole without this treatment.

Plaintiff claims he suffers from a serious medical need by virtue of his diagnosis of exhibitionism, voyeurism, and paraphilia,, and the failure to provide mental health treatment constitutes deliberate indifference in violation of the Eighth Amendment.

Plaintiff argues that his claim for equitable relief is not barred by Coleman, and that Coleman counsel advised plaintiff that under Coleman, the CDCR is not mandated to treat prisoners with sexual disorders. (Dkt. No. 58-1 at 2.) Plaintiff concedes "that there are provisions under Coleman for prisoners who have a diagnosis of exhibitionism," but plaintiff contends that these provisions do not cover plaintiff's needs. (Dkt. No. 58-1 at 10.)

In connection with defendants' res judicata arguments concerning the prior settlement, plaintiff contends that while a few facts are the same, the instant case stems from a different set of facts, and that because plaintiff did not name the Governor as a defendant in the case settled in 1994, there is no identity or privity of parties.

C. Defendants' Reply

In reply, defendants note that plaintiff failed to allege facts demonstrating that a violation of federal law occurred, or that a government entity was the moving force behind the alleged violation. Defendants contend that plaintiff failed to allege sufficient facts demonstrating that plaintiff was denied a particular treatment, therapy, evaluation or level of care within the mental health system, or to allege facts demonstrating a culpable state of mind on the part of defendants, rather than a mere difference of opinion concerning mental health treatment. To the extent that plaintiff seeks to sue defendants in their official capacities, defendants argue that plaintiff failed to identify a policy that was the moving force behind the alleged violation. In the second amended complaint, plaintiff alleged that there was a lack of sex offender treatment, which plaintiff now states he is not challenging. Although plaintiff alleged he was personally not receiving adequate treatment for exhibitionism, voyeurism, and paraphilia, defendants argue that plaintiff did not allege that the CDCR does not offer any treatment for exhibitionism, voyeurism, and paraphilia. (Dkt. No. 61 at 4.) Defendants also contend that plaintiff admits that some treatment for exhibitionism is available through the security housing unit where there is psychiatric treatment for exhibitionism, and that plaintiff is part of the mental health delivery system, at the Enhanced Outpatient Program level of care (dkt. no. 58-1 at 4), and that plaintiff has an assigned psychologist (id. at 6). (Dkt. No. 61 at 4.)

Defendants argue that plaintiff's factual allegations in the second amended complaint are unclear as to whether plaintiff alleges a CDCR policy caused his alleged inadequate treatment, or whether the alleged inadequate treatment was caused by CDCR employees who are not following CDCR policy. (Dkt. No. 61 at 5.) Defendants further contend that it is unclear whether plaintiff is challenging a particular CDCR or State of California policy.

In addition, defendants contend that plaintiff failed to allege sufficient facts to demonstrate that defendants personally violated plaintiff's Eighth Amendment rights, arguing that there is no link or connection alleged between each defendant and the lack of treatment, and that supervisory liability under a theory of respondeat superior is insufficient.

With regard to plaintiff's due process claim, defendants argue that plaintiff's reliance on Beebe is unavailing because Beebe was sentenced under a Colorado sentencing scheme for sex offenders that gave him an indeterminate sentence and required sex offender treatment, but plaintiff is serving a sentence for assault with a deadly weapon, and California does not have a similar sentencing scheme for sex offenders. In addition, the Ninth Circuit has found that an inmate serving a criminal sentence does not possess a constitutionally protected liberty interest in sex offender treatment. Balla, 869 F.2d at 468-70.

Defendants reiterate their argument that plaintiff's injunctive relief claim is part of the Coleman class litigation. Defendants argue that plaintiff admits he is diagnosed with exhibitionism which defendants contend makes plaintiff a part of the Coleman class. Coleman v. Schwarzenegger, 2009 WL 2430820 at *15 (E.D. Cal. Aug. 4, 2009). Defendants contend that to the extent plaintiff requests that the CDCR change its policies regarding the treatment of inmates diagnosed with exhibitionism, his request falls squarely within the area covered by the Coleman class action.

In connection with the settlement of plaintiff's prior lawsuit, defendants dispute plaintiff's characterization of his claims as stemming from "a whole different set of facts." (Dkt. No. 61 at 7.) Defendants contend that plaintiff alleges no specific instance since 1994 where plaintiff was denied adequate mental health care. Rather, plaintiff alleges vague allegations that the CDCR is not providing plaintiff with adequate mental health treatment. Defendants argue that in his prior case, ...


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