Opinion
Civil No. 05cv2095-LAB (NLS).
January 25, 2006
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) SUA SPONTE DISMISSING COMPLAINT WITHOUT PREJUDICE PER 28 U.S.C. § 1915(e)(2)
Plaintiff, a person civilly committed under California's Sexually Violent Predator Law (Cal. Welfare Institutions Code § 6600 et seq.), residing at the George Bailey Detention Facility in San Diego, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, accompanied by a Motion to proceed in forma pauperis. Plaintiff alleges that while incarcerated at the "San Diego Jail facilities" from January 6, 2005 to the present, he has been subjected to conditions of confinement which are penal rather than civil in nature. (Compl. at 1-5.) Plaintiff asserts claims under the Fourth, Fifth, Eighth and Fourteenth Amendments for denial of substantive due process, violation of his right of access to the courts and adequate medical care, unreasonable searches and seizures, violation of double jeopardy, ex post facto, and equal protection principles, cruel and unusual punishment, defamation, destruction of personal property and freedom of association and to peaceably assemble. (Id.) Plaintiff seeks injunctive relief and monetary damages. (Id. at 7.)
Referral to U.S. Magistrate Judge per S.D. CAL. CIVLR 72.3 These proceedings have been referred to the Honorable Magistrate Judge Nita L. Stormes by Local Rule 72.3(e), "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges," pursuant to 28 U.S.C. § 636.
I. Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, "[u]nlike other indigent litigants, prisoners proceeding IFP must pay the full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform Act]." Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by the PLRA, a "prisoner" is "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h). Under this definition, a person civilly committed under California Welfare Institutions Code § 6600 is not a "prisoner" within the meaning of the PLRA. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000).
Thus, because Plaintiff is not presently a "prisoner" as defined by 28 U.S.C. § 1915(h), the filing fee provisions of 28 U.S.C. § 1915(b) do not apply to him. Accordingly, the Court has reviewed Plaintiff's affidavit of assets, just as it would for any other non-prisoner litigant seeking IFP status, and finds it is sufficient to show that he is unable to pay the fees or post securities required to maintain this action. See S.D. CAL. CIVLR 3.2(d). Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a).
II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding in forma pauperis is subject to sua sponte dismissal to the extent it is "frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases,"Ferdick v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend, however, unless it determines that "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.
A. Allegations in the Complaint
Plaintiff alleges that on January 6, 2005, subsequent to the completion of his state prison sentence, he was transferred to and confined at the San Diego Jail until May 24, 2005, for the purpose of determining whether he should be declared a sexually violent predator ("SVP") and be civilly committed. (Attachment to Complaint, Plaintiff's Declaration at 1.) From May 24, 2005 to the present, Plaintiff apparently has been housed at the George Bailey Detention Facility in San Diego. (Id.)
Plaintiff alleges that during his incarceration at the jail he was subjected to conditions of confinement which were penal in nature rather than civil. (Compl. at 3-3A.) Plaintiff alleges that several of the Deputy Sheriff Defendants, including an unnamed Facility Captain, Lieutenants Evers and Scott, and Sergeants LaChappell and Brewer, have instructed their deputies to search the personal and legal property of all SVPs each Saturday, and that it is the policy, practice and custom of unspecified Defendants to publicly strip search SVPs and to use mechanical restraints upon them. (Id. at 4.) Plaintiff claims the conditions of confinement at the jail amounted to punishment in violation of ex post facto, double jeopardy and substantive due process principles, and amounted to cruel and unusual punishment. (Id. at 5-5A.) He identifies these conditions as: "contaminated food, inadequate facilities, excessive punishments, unnecessary isolation and seclusion, improper restriction of law library access and materials, contaminated cleaning supplies or lack of, degrading public strip searches, and excessive mechanical restraints." (Id. at 5A.)
Plaintiff alleges a denial of equal protection because penal detainees receive greater privileges such as "pens, typewriters (which are particularly necessary for proper court access), VCRs, DVDs, 450-movies, soda machines, exercise yard on a regular basis, and cable TV, etc." (Id. at 5B) He alleges interference with communications between himself and "his legal personnel" because he is required to use non-confidential telephones, because jail officers open and view his mail outside his presence, and improperly deny or restrict his ability to access the law library, which itself is inadequate. (Id. at 5B-5C.) Plaintiff alleges his life was placed in danger because the criminal detainees are told the reason why Plaintiff is a civil detainee, resulting in meals which have been tampered with by jail trustees and threats of bodily injury from criminal inmates, and amounts to defamation of his character because he had not yet been adjudicated as an SVP at the time. (Id. at 5C-5D.)
Plaintiff alleges that on August 13, 2005, Defendant Deputy Sheriff Dickerson along with a deputy in training exceeded their orders regarding a search of the module where Plaintiff was housed when they "ripped through plaintiff's legal papers and left them laying on the bed and floor," "tore" his personal correspondence, and denied Plaintiff's request to speak to a Sergeant or Lieutenant. (Id. at 5D.)
B. Applicable Standards
"The case of the individual confined awaiting civil commitment proceedings implicates the intersection between two distinct Fourteenth Amendment imperatives." Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004). An individual no longer serving a criminal sentence and detained under California's SVP statue "cannot be subjected to conditions that `amount to punishment.'" Id. at 932 (quoting Bell v. Wolfish, 441 U.S. 520, 536 (1979). The Ninth Circuit has "recognized that punitive conditions may be shown (1) where the challenged restrictions are expressly intended to punish, or (2) where the challenged restrictions serve an alternative, non-punitive purpose but are nonetheless `excessive in relation to the alternative purpose' . . . or `are employed to achieve objectives that could be accomplished in so many alternative and less harsh methods.'"Blanas, 393 F.3d at 932 (citations omitted). "Legitimate, non-punitive government interests include ensuring a detainee's presence at trial, maintaining jail security, and effective management of a detention facility." Id.
C. Conditions of Confinement Claims
As a preliminary matter, the allegations in the Complaint are unclear regarding Plaintiff's status during the events giving rise to his claims. Plaintiff contends on the first page of the Complaint that he is bringing claims regarding the conditions of his confinement at the "San Diego Jail Facilities" from January 6, 2005 up until the present. (Compl. at 1.) In the declaration attached to the Complaint, he states he was housed at the San Diego Jail from January 6, 2005 until May 24, 2005, and at the George Bailey Detention Facility from then up until the present. (See Attachment to Complaint, Plaintiff's Declaration at 1.) However, there are apparently no allegations in the body of the Complaint regarding the conditions of confinement at George Bailey. If Plaintiff wishes to include claims regarding the conditions of confinement at George Bailey, he must set forth factual allegations in the Complaint regarding the conditions of confinement there. The Complaint itself is also unclear whether Plaintiff was still serving his criminal sentence while undergoing SVP proceedings while housed at the jail. In any subsequent amended complaint Plaintiff should clearly allege his housing status, including the place of detention, at all relevant times.
The Court notes that Plaintiff has attached his declaration to the Complaint in which he states he "did not stand accused of a crime" while housed at the jail and that he was a civil detainee. (See Attachment to Complaint, Plaintiff's Declaration at 4.) In order for such a declaration to be considered as setting forth factual allegations supporting his claims, it must be specifically referenced in the Complaint as incorporated therein. See S.D. CA. CIV. LR. 15.1 (requiring complaint to be complete in itself without reference to other pleadings). Plaintiff is cautioned that he should include all his factual allegations in the body of any amended complaint.
Even were the Court to assume Plaintiff was a civil detainee at all times alleged in the Complaint, Plaintiff's allegations regarding the participation in the alleged violations of his rights by the individual Defendants named in the Complaint are defective and render the Complaint subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). Plaintiff alleges that an unnamed Facility Captain, along with Lieutenants Evers and Scott, and Sergeants LaChappell and Brewer, have instructed their deputies to search the personal and legal property of all SVPs each Saturday, and that it is the policy, practice and custom of unspecified Defendants to publicly strip search SVPs and use mechanical restraints upon them. (Compl. at 4.) The allegations regarding routine searches of personal property at the jail once a week do not allege a violation of substantive due process.Blanas, 393 F.3d at 932 ("Legitimate, non-punitive government interests include ensuring a detainee's presence at trial, maintaining jail security, and effective management of a detention facility.")
Although the allegations regarding strip searches and the use of mechanical restraints are arguably sufficient to survive screening under 28 U.S.C. § 1915, the Complaint is impermissibly vague regarding which Defendants Plaintiff alleges is responsible for these and other conditions at the jail which, if true, may support a finding of punitive conditions. If Plaintiff seeks damages from Defendant Kolender based on his role as Sheriff of San Diego County, whom Plaintiff appears to contend is responsible for the workings of the San Diego Jail and George Bailey, he must set forth specific factual allegations regarding this Defendant's participation in the alleged violation of his rights, because there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Plaintiff also lists as a Defendant the "San Diego Board of Supervisors" (Compl. at 2), but sets forth no specific factual allegations as to why this Defendant is directly responsible for the alleged violation of his rights. (See Compl. at 3.) While the County of San Diego itself may be considered a "person," and therefore a proper defendant, under section 1983, see Monell v. Department of Social Services, 436 U.S. 658, 691 (1978);Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988), as a municipality it may be held liable under section 1983 only where the Plaintiff alleges facts to show that a constitutional deprivation was caused by the implementation or execution of "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by the County. Monell, 436 U.S. at 690; Board of the County Commissioners v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). In other words, respondeat superior and vicarious liability are not cognizable theories of recovery against a municipality. City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694-95).
Thus, even were the Court to liberally construe Plaintiff's naming as a Defendant the "San Diego Board of Supervisors" as an attempt to state a claim against the County of San Diego, Plaintiff has not stated a section 1983 claim against this Defendant because he has failed to allege that any individual County employee deprived him of a constitutional right pursuant to official municipal policy, custom or practice. See Monell, 436 U.S. at 690; Brown, 520 U.S. at 403. Although Plaintiff uses the terms "policy, custom and practice" throughout the Complaint, as discussed above, his allegations are impermissibly vague regarding which Defendant or Defendants he is referring to in this regard. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (holding that, at a minimum, even the pro se plaintiff "must allege with at least some degree of particularity overt acts which defendants engaged in that support [his] claim."). Plaintiff must identify with particularity which Defendant or Defendants he contends has adopted or is enforcing which custom, policy and practice he is referring to, what those customs, policies and practices are, and why they are directly traceable to the alleged deprivation of his rights.
The Complaint as currently pleaded is vague regarding which Defendants Plaintiff alleges are responsible for the conditions of confinement at the jail, vague as to which facility at which Plaintiff contends he was housed in conditions of confinement which violated his rights, and vague as to Plaintiff's status during all relevant times. As to those Defendants against whom Plaintiff has set forth specific factual allegations, including Defendants Evers, Scott, LaChappel and Brewer, he has failed to state a claim against these Defendants for the reasons set forth above. Plaintiff's allegations that Defendant Deputy Barrera disclosed his status as a civil detainee to the jail's penal population fails to state a claim for the reasons set forth below.
For these reasons the Court finds that Plaintiff's substantive due process claim is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2). However, because it is not entirely clear that "the pleading could not possibly be cured by the allegation of other facts," and it appears "possible that the plaintiff can correct the defect," Lopez, 203 F.3d at 1130-31, he is granted leave to amend the complaint subject to the conditions listed at the end of this Order. Plaintiff must set forth specific allegations regarding each named Defendant in any amended complaint, and must clearly identify his housing at all relevant times.
D. Other Claims
In addition to the substantive due process conditions of confinement claim, Plaintiff also purports to bring separate claims for denial of medical treatment and access to courts, violation of double jeopardy, ex post facto and equal protection principles, defamation, destruction of personal property, and freedom of association and to peaceably assemble. Although the allegations with respect to these claims are required to be considered in support of the substantive due process claim, the Court will nevertheless liberally construe the Complaint as an attempt to present these as independent claims, and will notify Plaintiff of the pleading defects with respect to each claim.
Denial of Medical Care
The allegations regarding inadequate medical care are entirely conclusory (see Compl. at 3), and therefore fail to state a section 1983 claim. Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory allegations of official participation in civil rights violations are not sufficient" to state a claim upon which relief may be granted). Access to Courts
The exact contours of substantive due process protections in the area of medical care to pre-trial detainees is still an open question. The Ninth Circuit has indicated:
[Plaintiff] has not argued for a more demanding standard of care and we therefore do not pursue the issue. See Marsh v. Butler County, 268 F.3d 1014, 1024 n. 5 (11th Cir. 2001) (declining to decide how the Eighth and Fourteenth Amendment standards for evaluating medical needs claims differs given the lack of argument); see also Gibson, 290 F.3d at 1189 n. 9 ("It is quite possible . . . that the protections provided pretrial detainees by the Fourteenth Amendment in some instances exceed those provided convicted prisoners by the Eighth Amendment."); cf. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (holding that "the substantive due process rights of incapacitated criminal defendants are not governed solely by the deliberate indifference standard"); Jensen v. Lane County, 312 F.3d 1145, 1147 (9th Cir. 2002) (concluding that to comport with due process, committing physicians must exercise judgment "on the basis of substantive and procedural criteria that are not substantially below the standards generally accepted in the medical community").Lolli v. County of Orange, 351 F.3d 410, 419 n. 6 (9th Cir. 2003). Because Plaintiff's allegations do not state a claim under any standard as he has not named a single Defendant who he contends failed to provide him with adequate medical care, nor described in any manner how he was denied medical care, the Court need not determine the exact contours of such a claim at this time.
Plaintiff alleges the law library at the jail is inadequate to perform legal research, that he is unable to have confidential access to lawyers, his legal mail has been opened outside his presence, and Defendants "ripped through his legal papers" during a search, thereby denying him his right of access to the courts. (Compl. at 3A, 5B, 5D.) In order to establish a violation of the right to access to the courts, an inmate must allege facts sufficient to show that: (1) a nonfrivolous legal attack on his conviction, sentence, or conditions of confinement has been frustrated or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 343, 353-55 (1996). An "actual injury" is defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348;Blanas, 393 F.3d at 936 (holding that the "actual injury" requirement of Lewis applies to civil detainees).
Plaintiff has not alleged any facts sufficient to show that he has been precluded from pursuing a non-frivolous direct or collateral attack upon either his criminal conviction or sentence or the conditions of his current confinement. See Lewis, 518 U.S. at 355 (right to access to the courts protects only an inmate's need and ability to "attack [his] sentence, directly or collaterally, and . . . to challenge the conditions of [his] confinement."); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (the non-frivolous nature of the "underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint.")
Double Jeopardy and Ex Post Facto
Plaintiff's claims alleging violation of double jeopardy and ex post facto principles are not cognizable because Plaintiff alleges he is not a prisoner but is a civil detainee. Such claims must be brought as a denial of substantive due process under the Due Process Clause of the Fourteenth Amendment. Blanas, 393 F.3d at 933 (citing Seling v. Young, 531 U.S. 250, 263-65 (2001)). Thus, any allegations set forth in support of such claims are subsumed into the substantive due process claim alleging punitive conditions of confinement.
Equal Protection
Plaintiff has failed to adequately allege an equal protection violation because he has not alleged specific facts showing that any Defendant acted with an intent or purpose to discriminate against him based upon his membership in a protected class.Barren, 152 F.3d at 1194; Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995). There are no allegations whatsoever in the Complaint which would support an equal protection claim.
Defamation
Plaintiff alleges he was subject to defamation of character because Defendant Deputy Barrera informed criminal detainees at the jail "the reason [Plaintiff] is a `civil' detainee." (Compl. at 5C.) Plaintiff alleges that as a result all the SVPs have had meals which have been tampered with by jail trustees, and that he has "received threats of bodily injury from criminal inmates housed within the jail facility." (Id.)
The United States Supreme Court has held that injury to reputation alone does not implicate a liberty or property interest sufficient to invoke the protections of federal due process. Paul v. Davis, 424 U.S. 693, 712 (1976). The Ninth Circuit has made clear that a section 1983 claim cannot be predicated on injury to reputation alone, but must be accompanied by an allegation of an injury to a recognizable property or liberty interest in order to be cognizable, a requirement known as "defamation-plus." Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991). The Ninth Circuit has stated that: "there are two ways to state a cognizable § 1983 claim for defamation-plus: (1) allege that the injury to reputation was inflicted in connection with a federally protected right; or (2) allege that the injury to reputation caused the denial of a federally protected right." Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999) (citing Cooper, 924 F.3d at 1532) (emphasis in original).
There are no allegations in the body of the Complaint demonstrating that the alleged injury to Plaintiff's reputation from the Defendants' identification of him as an SVP was connected with, or in any way caused, a violation of any federally protected right, or otherwise implicated any protected property or liberty interest. Even assuming Plaintiff's allegations that he received threats or had meals tampered with could satisfy this requirement, Plaintiff has in any case failed to state a defamation claim because he has not alleged that the statement regarding his status was false. See Old Dominion Branch No. 496 v. Nation Association of Letter Carriers, 418 U.S. 264, 283 (1974) ("The sine qua non of recovery for defamation . . . is the existence of falsehood.")
Destruction of Property
Plaintiff alleges that although there was supposed to be no searches of his module, on one occasion a Deputy in training "ripped though" and "tore" his personal papers without proper authority. (Compl. at 5D) These allegation fail to state a claim that his personal property was taken or destroyed without due process of law in violation of the Fourteenth Amendment, as such a claim is not cognizable under section 1983 if Plaintiff has an adequate post-deprivation state remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). The California Tort Claims Act ("CTCA") provides an adequate post-deprivation state remedy for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).
Freedom of Association and to Peaceably Assemble
There are no specific allegations in the Complaint regarding Plaintiff's claim of denial of his rights to freedom of association or to peaceably assemble. Rather, Plaintiff sets forth only conclusory allegations that these rights have been violated due to the penal nature of the conditions at the jail. (Compl. at 3A.) If Plaintiff wishes to pursue a claim in this regard independent of the substantive due process claim, he must set forth specific factual allegations in support of such a claim. Ivey, 673 F.2d at 268.
III. Conclusion and Order
Based on the foregoing,
IT IS ORDERED THAT
1. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] is GRANTED.
2. The case is DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2).
3. Plaintiff is granted forty five (45) days in which to file an amended complaint in an attempt to cure the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to the superseded pleading.See S.D. CA. CIV. LR. 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
IT IS SO ORDERED.