Erwin v. Ahlin

         OBJECTIONS DUE WITHIN THIRTY DAYS

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS (ECF No. 9)

         Plaintiff Joey Erwin, a civil detainee, is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 21, 2018, the Court screened Plaintiff's complaint and he was ordered to either notify the Court that he was willing to proceed on the claims found to be cognizable or to file an amended complaint. Currently before the Court is Plaintiff's first amended complaint, filed March 26, 2018.

         I.

         SCREENING REQUIREMENT

         Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to screen the plaintiff's complaint in this action to determine if it “i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

         In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). A 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)).

         In reviewing the pro se complaint, the Court is to liberally construe the pleadings and accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts that are ‘merely consistent with' a defendant's liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for the court to draw the reasonable conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678.

         II.

         COMPLAINT ALLEGATIONS

         Plaintiff is a civil detainee at Coalinga State Hospital as a sexually violent predator (“SVP”) under California's Sexually Violent Predator Act (“SVPA”), California Welfare and Institutions Code, section 6600 et seq. (First Am. Compl. (“FAC”) 5, ^[1] ECF No. 9.) Plaintiff contends that his rights under the First, Fourth, and Fourteenth Amendments are being violated because he is unable to own and possess games and associated hardware and a laptop computer by Title 9, section 4350. (FAC 6.) Plaintiff argues that section 4350 is unconstitutional, violates expo facto and double jeopardy and is a punitive regulation. (FAC 6.)

         On December 27, 2017, Plaintiff received a copy of Title 9, section 4350 which was implemented as an emergency amendment. (FAC 6.) Plaintiff contends that section 4350 and section 880-892^[2] are regulations designed for prisoners that are confined in the Department of State Hospitals (“DSH”) and that by he is being subjected to the same punitive terms of confinement as inmates sent to DSH for treatment of a mental health commitment and therefore the regulation is punitive in nature. (FAC 7.) Plaintiff contends that by implementing and supporting the regulations, Pam Ahlin, Director of State Hospitals, and Brandon Price, Director of Coalinga State Hospital, violate the treatment Plaintiff is to receive while civilly committed and also violate expo facto and double jeopardy by being punitive and subjecting him to cruel and unusual punishment. (FAC 8.) Plaintiff argues that since prisoners are allowed the right to access the internet and possess games that have the ability to access the internet, denying a SVP identical or similar access violates his rights under the Fourteenth Amendment. (FAC 8.)

         Plaintiff also contends that banning electronic devices (computers, games, radios, MP3 players, etc.) violates his rights because he has returned to a punitive setting much more restrictive than when he was incarcerated in the California State Prison System which violates his rights under the First, Fourth, and Fourteenth Amendments. (FAC 8-9.) As of January 28, 2018, Plaintiff's personal property was removed pursuant to section 4350. (FAC 9.) Plaintiff states that his rights have been violated when Defendants implemented and enforced a computer moratorium preventing him from purchasing approved personal laptop computers and electronic games, and then implementing new regulations, California Code of Regulations, Title 9, section 4350, which allowed the Director of State Hospitals to pick up electronic games and computers already in Plaintiff's possession. (FAC 9-10.)

         On March 7, 2006, patients were allowed the right to own and possess personal laptop computers, DVD players, and PlayStations. (FAC 10.) DSH employees were allowed to modify the devices so they were determined not to be accessible to the internet up to five miles or more from the hospital grounds. (FAC 10.) Plaintiff was allowed to purchase a Palm Pilot for his use with the approval of laptop computers, games, and other electronic accessories. (FAC 10.) The administrators at the time stated that ownership of these devices would enhance the therapeutic atmosphere of the hospital. (FAC 10.)

         In October of 2009, the Director of DSH took steps to implement section 4350 which forbid the ownership of personal laptop computers and electronic gaming devices by Plaintiff within the DSH. (FAC 10.) Prohibited devices include desktop computers, laptop computers, cellular phones, electronic gaming devices, personal digital assistants, graphing calculators and radios. (FAC 10-11.) This regulation was implemented and took effect in 2010. (FAC 11.) Plaintiff contends that this regulation is overbroad, vague, and punitive. (FAC 11.) As written the regulation does not define or distinguish wireless internet devices that are pre-internet wireless devices, remotes, and electronic devices with no internet capability like a common radio. (FAC 11.) Section 4350 was placed into effect because of supposed violations of hospital policies and state and federal laws and allows defendants to seize any electronic device as internet capable. (FAC 11.) Plaintiff has not violated any hospital policies, or state or federal laws concerning the ownership of his electronic devices. (FAC 11.)

         On August 16, 2016, Plaintiff learned that the defendants planned to implement California Code of Regulations, Title 9, section 4350-Contraband Electronic Devices with Communication and Internet Capabilities. (FAC 11.) Plaintiff contends that this is a prison regulation applying to the California Department of Corrections and Rehabilitations (“CDCR”) and applying it to civilly committed individuals places the civil detainee in the category of a prisoner subject to punishment. (FAC 11.) Plaintiff states that prisons and other local penal institutions are allowed to have the electronic devices that he is being prevented from owning. (FAC 11.)

         The CDCR is currently allowing the advancement of technology within the prison industry by purchasing 500 tablets to be used by inmates at the California Men's Colony as a tool for educational and vocational training. (FAC 12.) These wireless devices allow inmates to communicate work assignments and tests via wireless communication to the prison instructor without the need of a classroom. (FAC 12.) For entertainment purposes, the CDCR allows X-Boxes and PlayStations as long as the wireless devices are inoperable and disconnected. (FAC 12.) State prisoners are allowed to purchase and own computer tablets, PlayStations, and X-Boxes without security concerns as long as the internet devices are disconnected. (FAC 12.) Plaintiff contends that he is being subjected to punitive conditions by not being allowed to own the same items. (FAC 12.) Plaintiff contends that only detainees who have committed violations should be subject to prosecution and not Plaintiff who has not committed any violation of state or federal laws. (FAC 12.) Plaintiff also alleges that denying him such devices violates his right to own devices which allows protected speech to be expressed. (FAC 12.)

         On December 23, 2017, Plaintiff received a copy of the proposed regulation that Pam Ahlin is implementing to now include electronic devices other than Wi-Fi. (FAC 13.) On January 13, 2018, the facility was locked down and searched and Plaintiff's property was removed from his possession. (FAC 13.) This included pens and pencils, books, DVD players, factory DVDs, all electronic devices including X-Plod radios, cassette players, cassettes, Wiki-Readers, book readers, calculators, shavers, watches, pictures, cables etc. (FAC 13, 14-15.) Plaintiff did not receive a receipt for his property and has not received any of his confiscated property back. (FAC 13.)

         Brandon Price is responsible for enforcing this new regulation. (FAC 13.) This amended regulation has removed from Plaintiff the ability to own all media devices which have the capability to store data: including Plaintiff's MP3 player which stores music for entertainment; flash drives used to store legal materials, letters, and briefs; hard drives used to store legal data, music, and television series, and storage of current court decisions and opinions. (FAC 13.) Since 2014, patients have been allowed to scan their legal work to digital copies and stored these copies on personal hard drives to remove excess storage of paperwork which was considered a fire hazard. (FAC 13.) Plaintiff destroyed most of his legal work in paper form and only has the information stored on his hard drives. (FAC 14.)

         Plaintiff has an MP3 player with approximately 2, 000 songs for personal listening; DVD players, Micca Media device, Blu-Ray player, DVR, memory devices, hard drives with over 20, 000 MP3s. (FAC 14.) Plaintiff has invested over $10, 000 in DVD and Blu-Ray movies and has collected many series for his personal use and viewing. (FAC 14.) Plaintiff has been advised that pursuant to this new regulation he will only be allowed a combination of 30 music CDs and DVDs. (FAC 14.) Plaintiff contends this is punitive because CDs and DVDs do not constitute a security threat to the institution. (FAC 14.) Plaintiff was previously allowed to purchase blank DVD and readers/writers with the knowledge that they would be used to copy movies and music. (FAC 14.) Sony, MGM, and Blu-Ray give permission to download movies on your personal media players to view, as well as streaming for series produced by Netflix, Disney, etc. (FAC 14.) Plaintiff contends that taking copies of movies from patients who do not have money to buy the original movies amounts to cruel and unusual punishment. (FAC 14.) Plaintiff states that he bought his movies and series as originals and he should not have to mail them home as contraband when he was previously allowed to possess them without restriction just to satisfy a false security concern. (FAC 14.)

         Finally, Plaintiff contends that the child pornography which the defendants are using to justify removing the memory storage devices was introduced into the hospital by staff. (FAC 15.) The state court records reflect that between nine months to one year ago, two state employees were apprehended bringing child pornography and cell phones into the institution. (FAC 15.) Cell phones, pornography, wireless devices, alcohol, drugs, and tobacco have been and continue to be introduced into the hospital by patients willing to pay for the contraband material to staff. (FAC 15.) Plaintiff alleges that he should not be punished for the actions of other individuals. (FAC 15.)

         Plaintiff has been allowed to purchase these items for 4 to 5 years and then after some patients started misusing approved items, the DSH issues a blanket ruling declaring the items to be contraband thus punishing the innocent with the guilty. (FAC 15.) Now all the money Plaintiff has spent purchasing the items at one and a half times their actual cost will be lost. (FAC 15.) Plaintiff works as a janitor making $52.50 per month and it takes him more than six months to save the money to purchase an X-Box or tablet because he has no family members able to buy them for him. (FAC 16.) Plaintiff contends that taking away the items will make the institution more dangerous because the detainees will have no way to entertain themselves and it will open the door to violence. (FAC 16.) Plaintiff argues that the least restrictive way to address the security concerns would be to stop allowing blank CDs and DVDs as well as DVD burners. (FAC 16.) If the defendants start to police their own employees (for example, Kory G. Cooper (child porn, etc.) and Carla K. Magdaleno (tobacco, cell phones, etc.)) the criminal acts of the staff members and patients will cease. (FAC 16.)

         Plaintiff contends that Pam Ahlin and Brandon Price violate his rights under the First and Fourteenth Amendments by denying him access to the internet. (Compl. 15.) Plaintiff is not allowed any electronic devices or any internet access, yet in San Francisco County Jail more than 200 adult inmates acquire skills and earn high school credits using tables provided by the American Prison Data Systems. (Compl. 15.) Eight states, Ohio, North Dakota, Georgia, Louisiana, Virginia, Michigan, Washington, and Colorado, now regularly allow their prison inmates to possess tablets. (Compl. 15-16.)

         Plaintiff contends that the regulation violates his right to access the internet under the First and Fourteenth Amendment. (FAC 18.) Plaintiff is not allowed any access to the internet, no matter how limited. (FAC 18.) Other correctional facilities allow inmates to use tablets to earn high school credits and allow inmates to possess tablets. (FAC 18-19.) A prison in North Dakota limited electronics provided to one tablet that can be remotely and cheaply monitored by professionals off site. (FAC 19.) ...