United States District Court, E.D. California
EDWARD J. JOHANNECK, Plaintiff,
PAM AHLIN, et al., Defendants.
ORDER REQUIRING PLAINTIFF TO EITHER FILE A FIRST
AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED
ON CLAIMS FOUND COGNIZABLE (ECF NO. 1) THIRTY (30) DAY
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a civil detainee proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 42 U.S.C.
complaint (ECF No.1) is before the Court for screening.
Court is required to screen complaints brought by
incarcerated persons seeking relief against a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). The Court must dismiss a complaint or
portion thereof if the prisoner has raised claims that are
legally “frivolous, malicious, ” or that fail to
state a claim upon which relief may be granted, or that seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b)(1), (2).
“Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the
case at any time if the court determines that . . . the
action or appeal . . . fails to state a claim upon which
relief may be granted.” 28 U.S.C. §
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiffs must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at
678. Facial plausibility demands more than the mere
possibility that a defendant committed misconduct and, while
factual allegations are accepted as true, legal conclusions
are not. Iqbal, 556 U.S. at 677-78.
1983 “provides a cause of action for the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983). To state a claim under
§1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the
United States was violated and (2) that the alleged violation
was committed by a person acting under the color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988);
Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th
section 1983 the Plaintiff must demonstrate that each
defendant personally participated in the deprivation of his
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
Cir. 2002). This requires the presentation of factual
allegations sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009). Prisoners
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor, Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (citations omitted), but
nevertheless, the mere possibility of misconduct falls short
of meeting the plausibility standard, Iqbal, 556
U.S. at 678; Moss, 572 F.3d at 969.
Facts and Allegations
is currently detained at Coalinga State Hospital
(“Coalinga”) and complains of acts that occurred
there. He names as Defendants (1) Pam Ahlin, Director of
California Department of State Hospitals (“DSH”),
and (2) Brandon Price, Director of Coalinga.
allegations can be fairly summarized as follows:
has been detained at Coalinga for twelve years under
California's Sexually Violent Predator Act
2006, after extensive testing to ensure the internet could
not be accessed, Defendants approved patient ownership and
use at state hospitals of laptop computers and other
electronic devices that did not have Wi-Fi capabilities.
2007, Defendants issued a moratorium prohibiting patients
from purchasing laptops, Palm Pilots, and PlayStations
because of violations of hospital policies and violations of
state and federal laws regarding child pornography.
October 2009, DSH implemented Cal. Code Regs. tit. 9, §
4350 (hereinafter Regulation 4350) prohibiting devices that
could send or receive information and devices that could be
modified to send or receive information, giving Defendants
the right to seize any such electronic device. On October 4,
2010, Coalinga notified Plaintiff that his banned electronic
devices could be picked up and stored or mailed to his home.
December 23, 2017, DSH provided Plaintiff a copy detailing
emergency amendments to Regulation 4350 prohibiting nearly
all electronic devices with memory storage, devices capable
of connecting to the internet or to other devices, and
devices capable of copying or recording information.
uses electronic devices to store music, movies, personal
items, and legal materials. Since 2014 Coalinga has allowed
patients to scan paperwork and store the copies
electronically on their personal hard drives. Plaintiff has
scanned thousands of irreplaceable legal documents, family
photographs, and other personal items. (Most paper documents
had been destroyed to comply with Coalinga limits on volumes
of paperwork. Almost all of Plaintiff's information
exists on hard drives only.)
has invested thousands of dollars on approved electronics and
data storage devices. Plaintiff should not to mail his
legally purchased movies and electronic devices home as
does not have the money to continue buying devices only to
have them taken away. Plaintiff works as a janitor at
Coalinga for $52.50 per month. It takes Plaintiff more than
six months to save enough to purchase an X-box or tablet.
Plaintiff has no family members to buy these items for him.
these regulations are punitive because many of these devices,
such as pre-internet gaming devices, commercial CDs and DVDs,
and media recorders which record television shows, pose no
allowed patients, including those who do not have the means
to buy original movies, to purchase blank DVDs and devices to
write on DVDs and now wants to take them away.
regulation will make the hospital more dangerous because
patients will have nothing to entertain themselves.
4350 falls under Title 9. California Code of Regulations,
Title 9 should not apply to civilly committed individuals.
Title 9 is a California Department of Corrections and
Rehabilitation (“CDCR”) regulation designed for
penal commitments. It is punitive when applied to civil
detainees. Plaintiff, a civil detainee, now has no greater
rights in these devices than convicted prisoners serving a
punitive term of commitment at DSH. Title 22 applies to
civilly committed individuals.
is being subjected to worse punishment than if he were
serving a penal commitment. CDCR allows some prisoners
serving punitive sentences to own electronic devices and have
access to the internet. The devices are Wi-Fi capable, but
have had the Wi-Fi components removed. At least some state
prisoners, therefore, have access to electronic devices and
internet services that are being denied to Plaintiff.
has never had any device confiscated by officials at Coalinga
or been in possession of child or adult pornography.
Plaintiff has not violated any hospital policies or laws
relating to ownership of his electronic devices. Plaintiff is
not well-versed in computer skills and is unable to hack an
2006 to 2017, up to one hundred Coalinga staff members have
been terminated for bringing into Coalinga hospital grounds
contraband items, including child pornography. Coalinga
employees are still being terminated because they have been
bribed by patients to bring contraband material into
Coalinga. The contraband includes drugs, alcohol, tobacco,
electronic devices, and illegal devices that, when used with
other devices (tethering), make non-Wi-Fi capable devices
capable of accessing the internet and communicating with
other devices. All child pornography brought in to Coalinga
was brought in by hospital staff. Several Coalinga employees
were apprehended bringing child pornography into the
institution nine months ago. In April/May of 2015, Coalinga
police removed fifteen to twenty computers to investigate
whether they had been used to store or access child porn.
Plaintiff should not be punished for the criminal actions of
brings claims under the First, Fifth, Fourth, and Fourteenth
Amendments. He seeks declarative and injunctive relief.
Notice of Emergency Amendments and Finding of
includes as an exhibit to his complaint the Notice of
Emergency Amendments and Finding of Emergency provided to
Plaintiff by DSH. (See ECF No. 1, Ex. 1 at 24-37).
document outlines the facts and reasoning DSH relied upon in
making its determination that there was a need for emergency
amendment of Regulation 4350. As such, the document is
relevant in determining whether Plaintiff's allegations
state a claim. It is summarized here:
Notice recites a need to control not just access to the
internet and certain electronic devices, but data storage
at state hospitals. (Id.) Digital data storage and
communication has allowed patients to access, exchange
and/or profit from illegal material, including child
pornography. (Id. at 25.)
been working with the Fresno County District Attorney's
office to investigate and prosecute child pornography cases.
(Id. at 26.) In 2017, DSH made eleven arrests in
regards to child pornography. (Id.) There have been
five convictions of patients on charges relating to child
pornography and several more are awaiting trial.
(Id.) DSH has found that nearly all of the child
pornography is being distributed through various electronic
devices, even small devices, have the capability to store and
copy digital information; and many electronic devices, even
devices thought to be disconnected from the internet, allow
for access to the internet. (Id. at 26-27.)
further notes that:
[A]ccess to the internet provides full access to illegal
materials, aerial views of DSH facilities, communication with
victims, communication to create additional victims, and the
ability to download illicit images for sale or sharing with
other patients. However because the ability is in software
format within currently room searches. Penal Code section
1546.1, adopted in 2015, mandates that a search of electronic
devices is not permitted without permission by the possessor
or a search warrant further frustrating the ability to
enforce facility and public safety. . . This internet access
creates danger for the public, the staff, and patients, as
well as interferes with treatment by creating exposures,
triggers, and temptations that are intended to be controlled
in a secured inpatient mental health setting.
(Id. at 27.)
devices that access the internet are currently prohibited and
those without internet access are allowed. (Id.)
However, many recent gaming devices contain data storage
capabilities, permitting patients to download illegal
material to the device and then prevent the illegal material
from being discovered in a standard room search.
(Id.) These gaming devices also allow for copyright
violations. (Id.) Therefore, the amendment would
prohibit possession of gaming devices with accessible data
and the ability to play non-proprietary inserts.
ability to burn DVDs and CDs allows for the distribution of
illegal images, as well as copyright infringements.
(Id.) This poses enforcement challenges as DSH does
not have the staff needed to get warrants and to review disks
to determine what material is appropriate. (Id.)
Therefore the amendment would ban all CD/DVD burners and
blank disks, but allows some ownership of CDs and DVDs
provided by a manufacturer. (Id.)
acknowledges that child pornography and other illegal
materials exist within hospitals, but without the proposed
amendment, it ...