United States District Court, E.D. California
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.) ...