(PC) Fletcher v. Department of State Hospitals

• Court: District Court, E.D. California
• Decided: January 25, 2024
• Docket: 1:22-cv-01150
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 ALLAN FLETCHER, Case No. 1:22-cv-01150-EPG-PC

10 Plaintiff, FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART 11 v. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE AND GRANT IN PART AND 12 STEPHANIE CLENDENIN, et al., DENY IN PART DEFENDANTS’ MOTION TO DISMISS 13 Defendants. (ECF Nos. 12, 14) 14 ORDER DIRECTING CLERK OF COURT 15 TO ASSIGN DISTRICT COURT JUDGE

16 OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 17 18 Allan Fletcher (“Plaintiff”), who is currently housed at the Department of State Hospitals, 19 Coalinga pursuant to California’s Sexually Violent Predator Act, is proceeding pro se and in 20 forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Before the Court are 21 Plaintiff’s request for judicial notice and Defendants Stephanie Clendenin and Brand Price’s 22 (“Defendants”) motion to dismiss the Sixth Amendment and Fourteenth Amendment claims. For 23 the reasons described below, the undersigned will recommend granting in part and denying in 24 part Plaintiff’s request for judicial notice and granting in part and denying in part Defendants’ 25 motion to dismiss. 26 I. BACKGROUND 27 Plaintiff filed the complaint commencing this action on September 9, 2022. (ECF No. 1.) On January 26, 2023, the Court issued a screening order, allowing the complaint to proceed on 1 Plaintiff’s First, Sixth, and Fourteenth Amendment claims regarding legal mail against 2 Defendants Clendenin, Price, and Carter. (ECF No. 6.) 3 On April 28, 2023, Defendants Clendenin and Price filed the instant motion to dismiss 4 the Sixth and Fourteenth Amendment claims. (ECF No. 12.) On May 12, 2023, Plaintiff filed an 5 opposition and request for judicial notice. (ECF No. 14.) On May 22, 2023, Defendants filed a 6 reply in support of the motion to dismiss. (ECF No. 15.) That same day, Defendants also filed 7 objections to Plaintiff’s request for judicial notice. (ECF No. 16.) On May 30, 2023, Plaintiff 8 filed a response to Defendants’ objections. (ECF No. 18.) 9 II. SUMMARY OF PLAINTIFF’S COMPLAINT 10 Plaintiff alleges as follows in his complaint: 11 The incidents occurred at Department of State Hospitals, Coalinga (“DSH, Coalinga”). 12 As defendants, Plaintiff names Stephanie Clendenin, the Director of the California Department 13 of State Hospitals, and Brandon Price, the Executive Director of DSH, Coalinga. Both are sued 14 in their official capacity only. Plaintiff also appears to sue Department of Police Services Chief 15 Carter.1 16 On or about January 23, 2012, Plaintiff arrived at DSH, Coalinga pursuant to California’s 17 Sexually Violent Predator Act (“SVPA”). Plaintiff is aware that he has a right to confidential 18 case discussions with his attorney, which includes written correspondence. Plaintiff was 19 educated on the meaning of “Non-LPS Patients’ Rights.” Plaintiff was informed that a Non-LPS 20 patient means that his placement in or commitment to the facility is pursuant to statutory 21 authority other than individuals committed under Welfare and Institutions Code section 5000. 22 Plaintiff was informed that even though he is a civil detainee patient, he is housed with Penal 23 Code mental health patients. 24 The Department of State Hospitals (“DSH”) was formerly known as the Department of 25 Mental Health (“DMH”), and in 2003 was sued for violating the Federal Civil Rights of 26 Institutionalized Persons Act. DSH entered into a consent degree in 2006 to correct the civil

27 1 Carter is not listed as a defendant in Plaintiff’s complaint, but Plaintiff repeatedly refers to Carter as a defendant. As noted in the Court’s screening order, (ECF No. 6 at 3 n.2), the Court will treat Carter as a 1 rights violations noted throughout the other four state hospitals. One such violation was for 2 opening privileged legal mail outside of the patients’ presence. 3 In or about May of 2022, a member of the DSH, Coalinga patient government was 4 informed by a peer that Unit 1 staff were opening patients’ mail prior to delivery. Plaintiff spoke 5 to the Unit Shift Lead Psychiatric Technician, and she informed Plaintiff that she was instructed 6 by the Unit Supervisor to open and inspect greeting cards for contraband prior to delivery to 7 patients. Department of Police Services (“DPS”) was called by the patient whose mail was 8 opened outside of his presence, and Plaintiff addressed the issue with DPS. DPS Officers then 9 stated: “I will speak to the Shift Lead, however, I’m aware that as of last month unit staff were 10 doing this. This did not come from us.” 11 In or about June of 2022, Plaintiff received from his attorney of record, a Deputy Public 12 Defender in Alameda County, a clearly marked attorney-client legal mail envelope. Upon 13 receiving the envelope from staff, Plaintiff noticed that it had been opened and resealed with a 14 small piece of scotch tape. Plaintiff called his attorney and was able to confirm that his attorney 15 did not place the tape on the envelope. Plaintiff filed a Patients’ Right Complaint. 16 In or about August of 2022, Plaintiff received a phone call from a DSH, Coalinga 17 Patients’ Rights Advocate who stated that his office had been made aware of DSH, Coalinga 18 staff opening confidential legal mail at the direction of “Defendants Clendenin et al.” 19 In or about July of 2022 through August of 2022, Plaintiff received from his attorney of 20 record and “through” the California Deputy Attorneys General confidential legal 21 correspondence. These envelopes were opened and resealed before being given to Plaintiff. 22 Additionally, in August of 2022, Plaintiff received an order granting an extension of time in a 23 case that he filed. It was open when Plaintiff received it. 24 As a result of Plaintiff’s legal correspondence from his attorney of record being opened 25 outside of his presence, Plaintiff received a response from a Patients’ Rights Advocate. The 26 Advocate stated: “My office has been made aware of Defendants opening, by way of their 27 policy, confidential legal mail.” The Advocate explained that, in or about April or May of 2022, 1 inspect, and if need be, to “photocopy the contents” of correspondence of select DSH, Coalinga 2 patients that had been placed on a list. The mail was then resealed and delivered to the mail room 3 at DSH, Coalinga, where it was processed for regular delivery to the patients’ units. The 4 Advocate stated that he was told by the hospital’s administration that Defendant Price and DPS 5 are permitted to implement this “pilot program” and intercept, open, and photocopy legal mail 6 pursuant to California Code of Regulation, Title 9, § 884(b)(6), and the policy outlined in 7 Administrative Directive No. 624 signed by Defendant Price. 8 The Advocate further stated that DSH, Coalinga administration cited the following from 9 Administrative Directive No. 624 in support of its pilot program: “DSH-C must adhere to the 10 legal prohibition not to read Non-LPS individual patients’ letters, and documents sent or received 11 from attorneys, courts, or government officials through the mail (CCR, Title 9, §§ 884 (b)(6) and 12 881 (c)). Such legal prohibition is consistent with the legal obligation to open, and inspect mail 13 and packages for contraband (i.e. the facility must open and inspect each mail, package, but need 14 to refrain from reading any letters or documents found therein that constitute confidential mail.” 15 (ECF No. 1 at 12 (errors in original) (emphasis added by Plaintiff).)2 16 The Advocate further informed Plaintiff that defendant Price was informed that the 17 current pilot program may violate patients’ rights because the program permits all privileged 18 mail to be opened, inspected, and photocopied outside of the presence of patients. He then added 19 that this may subject the hospital to liability. 20 Plaintiff further alleges that the word “mail” was recently added throughout the “Waiver 21 Form for Patients’ Packages.” This is a violation of Plaintiff’s rights in that it does not provide an 22 exemption for confidential legal mail, which must be opened and inspected in the patients’ 23 presence. 24 The policy, practice, and custom at DSH, Coalinga when making changes affecting the 25 rights, benefits, and/or privileges of civil detainees at DSH, Coalinga has been to involve 26 Patients’ Rights and Patients’ Government (the Civil Detainee Advisory Counsel). In or about 27 August of 2022, Plaintiff was given the newly revised Waiver Form for Patients’ Packages, 1 which had not undergone the vetting process described above, nor had it been properly 2 promulgated through the Office of Administrative Law pursuant to the Administrative Procedure 3 Act mandate requirements.3 Plaintiff attempted to have the word “mail” removed from the Form, 4 but his requested change was rejected by DPS Officers. 5 Plaintiff believes that prisoners from the California Department of Corrections and 6 Rehabilitation that are receiving mental health treatment at DSH, Coalinga have their legal mail 7 opened and inspected in their presence, which is contrary to the policy for civil detainees like 8 Plaintiff, who are denied this right. 9 Administrative Directive NO. 624 also states that “Non-LPS individual patients have the 10 right to receive and send mail and packages, but no right to receive unopend [sic] mail and 11 packages, as such mail and packages are required to be searched for contraband.” 12 In order to remedy the opening of confidential legal mail outside of patients’ presence, 13 Plaintiff contacted the Civil Detainee Advisory Counsel (“CDAC”). During the CDAC meeting 14 with DPS Sergeant Barazza,4 Barazza claimed that he added the word “Mail” to the Package 15 Waiver Form. He then directed his staff to send the new Form to all DSH, Coalinga Units with 16 instructions that the Form be completed and returned no later than the end of August 2022. 17 Due to numerous complaints, a CDAC spokesperson brought the concerns with mail to 18 Defendants Price and Carter. The altered Form was addressed, and both claimed they did not 19 authorize Barazza to alter the Form. However, neither remedied the issue. Instead, Defendant 20 Price directed that the matter be referred to the Legal Division at DSH, Coalinga for review, and 21 the issue was tabled without resolution. 22 As a direct result of Defendant Price’s failure to remedy the issue of the Form, Plaintiff 23 had attorney/client mail deferred to the package room, where it was opened outside his presence 24 and then brought to Plaintiff’s housing unit. 25 Plaintiff alleges that Defendants violated his constitutional right to send and receive 26 privileged correspondence through the United States Mail. Defendant Clendenin issued a 27 3 Plaintiff does not bring a claim pursuant to the Administrative Procedure Act. 1 directive to Defendant Price to start a “Pilot Program” with DPS that unlawfully opens, inspects, 2 copies, and reads all incoming and outgoing mail. Defendant Price subsequently directed 3 Defendant Carter to utilize DPS staff to open, inspect, read, and copy incoming and outgoing 4 mail, and to flag certain patients’ names, including Plaintiff, for possible illegal activity. 5 Defendants were informed by a Patients’ Rights Advocate that their current practices violate 6 Plaintiff’s right to confidentiality, but Defendants continue to implement those practices. 7 Defendants also violated Plaintiff’s civil rights when they proclaimed that they may open 8 outgoing privileged mail outside of Plaintiff’s presence after Plaintiff sealed it. 9 Plaintiff asserts that California Code of Regulation, Title 9, § 884(b)(6) violates the Due 10 Process Clause of the Fourteenth Amendment because Defendants cited as authority and 11 referenced a promulgated regulation that is used for Penal Code mental health patients and not 12 civil detainees, like Plaintiff. This regulation also limits the volume of privileged legal mail that 13 Plaintiff can send and/or receive. 14 Plaintiff alleges that Defendants violated his First and Sixth amendment rights when they 15 promulgated rules and regulations that allow DPS Officers and other employees to open 16 privileged attorney/client correspondence outside of Plaintiff’s presence. These actions have 17 chilled attorney/client communication. 18 Plaintiff also alleges that Defendants violated the Fourteenth Amendment of the 19 Constitution because California Code of Regulation, Title 9 § 884 (b)(6) denies rights to Plaintiff 20 that are afforded to California Department of Corrections and Rehabilitation (“CDCR”) inmates 21 housed at DSH, Coalinga. These inmates, as well as CDCR prisoners and inmates in county jail, 22 are permitted to receive unopened confidential legal mail that is opened and inspected in their 23 presence. However, Plaintiff’s legal mail is opened outside of his presence. Plaintiff is thus 24 placed in conditions of confinement that are more restrictive than those applied to inmates in 25 county jails, prisoners held in prison for punishment, and Penal Code LPS patients at DSH’s 26 other hospitals. 27 /// 1 III. REQUEST FOR JUDICIAL NOTICE 2 Plaintiff requests that the Court take judicial notice of: (1) DSH, Coalinga Administrative 3 Directive No. 624 regarding patient mail and packages; (2) March 22, 2011 certification of 4 Cynthia A. Radavsky, Deputy Director of Long Term Care Services, California Department of 5 Mental Health, that the DMH “will not use, enforce, or attempt to enforce the challenged Internal 6 Management Directive No. 624 that was issued on October 12, 2010”; (3) patients’ rights 7 complaints and responses by DMH officials; and (4) July 1, 2002 letter from Latham & Watkins 8 to DMH’s Office of Regulations regarding comments on Proposed “Chapter 4.5: Patients’ Rights 9 and Related Procedures for Non-L.P.S. Act Patients In Department of Mental Health Facilities.” 10 (ECF No. 14 at 2.) Defendants do not object to the Court taking judicial notice of Administrative 11 Directive No. 624. (ECF No. 16 at 2.) Defendants object to the Court taking judicial notice of the 12 three other exhibits. (Id. at 2–3.) 13 “The Court may judicially notice a fact that is not subject to reasonable dispute because 14 it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 15 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 16 Evid. 201(b). Courts “may take judicial notice of court filings and other matters of public 17 record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). “But 18 a court cannot take judicial notice of disputed facts contained in such public records.” Khoja v. 19 Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (citing Lee v. City of Los 20 Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). “Just because the document itself is susceptible to 21 judicial notice does not mean that every assertion of fact within that document is judicially 22 noticeable for its truth.” Khoja, 899 F.3d at 999. 23 Here, Defendants do not object to the Court taking judicial notice of Administrative 24 Directive No. 624. (ECF No. 16 at 2.) As the directive is a public record, the Court will 25 recommend that judicial notice be taken of Administrative Directive No. 624. 26 With respect to the remaining three exhibits, the undersigned will recommend that 27 Plaintiff’s request for judicial notice be denied because “a court cannot take judicial notice of 1 IV. MOTION TO DISMISS 2 A. Legal Standard 3 In considering a motion to dismiss, the Court must accept all allegations of material fact 4 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. Rex 5 Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the 6 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on 7 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 8 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff’s 9 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must 10 be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 11 627 F.3d 338, 342 (9th Cir. 2010). 12 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 13 complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Rule 8(a)(2) requires only “a short 14 and plain statement of the claim showing that the pleader is entitled to relief” in order to “give 15 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 17 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant 18 is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236. 19 The first step in testing the sufficiency of the complaint is to identify any conclusory 20 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 21 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. 22 at 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires 23 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 24 will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 25 After assuming the veracity of all well-pleaded factual allegations, the second step is for 26 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 27 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6) 1 “pleads factual content that allows the court to draw the reasonable inference that the defendant 2 is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 3 The standard for plausibility is not akin to a “probability requirement,” but it requires “more than 4 a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “Determining 5 whether a complaint states a plausible claim for relief … [is] a context-specific task that requires 6 the reviewing court to draw on its judicial experience and common sense.” Id. at 679. 7 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 8 outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 9 Gumataotao v. Dir. of Dep’t of Revenue & Taxation, 236 F.3d 1077, 1083 (9th Cir. 2001). 10 B. Discussion 11 1. Sixth Amendment 12 In Nordstrom v. Ryan, 762 F.3d 903 (9th Cir. 2014), an inmate alleged “that when he 13 sought to send a confidential letter—‘legal mail’—to his lawyer, a prison guard actually read the 14 letter, instead of merely scanning and inspecting the letter for contraband.” Id. at 906. The Ninth 15 Circuit found that the claims fell “squarely within the scope of the Sixth Amendment right to 16 counsel,” because “Nordstrom allege[d] that the defendants’ conduct interfered with attorney- 17 client communications related to the appeal of his murder conviction and death sentence.” Id. at 18 909. The Ninth Circuit “recognized that prisoners have a Sixth Amendment right to confer 19 privately with counsel and that the practice of opening legal mail in the prisoner’s presence is 20 specifically designed to protect that right” and “clarif[ied] that, under Nordstrom, prisoners have 21 a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.” 22 Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir. 2017). 23 Defendants argue that because “Plaintiff is detained civilly, not criminally, the Sixth 24 Amendment does not apply.” (ECF No. 12 at 7.) Plaintiff contends that “Ninth Circuit setting 25 precedence affirmed that where specific standards are lacking, courts may consider decisions 26 defining the constitutional rights of prisoners to establish a constitutional minimum for the rights 27 of civil detainees.” (ECF No. 14 at 5 (citing Padilla v. Yoo, 678 F.3d 748, 749 (9th Cir. 2012); 1 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall 2 enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. 3 “The protections provided by the Sixth Amendment are explicitly confined to ‘criminal 4 prosecutions,’” Austin v. United States, 509 U.S. 602, 608 (1993), and “the fact that a 5 proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a 6 ‘criminal prosecution’ for purposes of the Sixth Amendment.” Middendorf v. Henry, 425 U.S. 7 25, 37 (1976). For example, although the Ninth Circuit “recognize[s] that involuntary civil 8 commitment ‘constitutes a significant deprivation of liberty that requires due process 9 protection[,]’ . . . the Sixth Amendment right to confrontation does not attach in civil 10 commitment proceedings.” Carty v. Nelson, 426 F.3d 1064, 1073 (9th Cir.) (quoting Addington 11 v. Texas, 441 U.S. 418, 425 (1979)), amended on denial of reh’g, 431 F.3d 1185 (9th Cir. 2005). 12 See Burns v. Price, No. LACV 21-6823-AB (LAL), 2022 WL 2056770, at *5 (C.D. Cal. Feb. 24, 13 2022) (“As an initial matter, it is not apparent that clearly established federal law contemplates a 14 Sixth Amendment right to counsel at a civil commitment trial.”), report and recommendation 15 adopted, 2022 WL 2047939 (C.D. Cal. June 7, 2022); Samuels v. Ahlin, No. 1:10-cv-00585- 16 DAD-EPG-PC, 2017 WL 6594635, at *6 (E.D. Cal. Dec. 26, 2017), (“Here, Plaintiff cannot state 17 a claim for violation of his Sixth Amendment right to the effective assistance of counsel, because 18 the Sixth Amendment is not applicable to a civil commitment proceeding.”), report and 19 recommendation adopted, 2018 WL 497228 (E.D. Cal. Jan. 22, 2018). 20 The Ninth Circuit has acknowledged that “it may sometimes be permissible to rely on 21 cases involving one type of detainee to establish clearly established constitutional rights of 22 another type of detainee.” Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 2012). 23 In Hydrick,5 for example, we held that court decisions defining the constitutional rights of prisoners could be relied upon to establish a 24 floor for the clearly established constitutional rights of persons who are civilly detained as sexually violent predators, for whom 25 the law was at that time “still evolving.” 500 F.3d at 989. Central to our holding, however, was the Supreme Court’s earlier 26 statement that “civilly detained persons must be afforded ‘more

27 5 Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007), vacated and remanded on other grounds, 556 U.S. 1 considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.’ ” Id. 2 (quoting Youngberg, 457 U.S. at 322, 102 S.Ct. 2452). 3 Padilla, 678 F.3d at 759 (footnote added). However, Padilla and Youngberg did not involve Sixth 4 Amendment claims. Moreover, in Hydrick, the Ninth Circuit noted that civilly committed 5 persons awaiting commitment pursuant to the SVPA “have a statutory right to counsel in 6 probable cause proceedings and in commitment hearings,” and distinguished “the Sixth 7 Amendment, [which] by its express language, protects those in criminal proceedings.” Hydrick, 8 500 F.3d at 999 (emphasis added). 9 Nordstrom and Mangiaracina concerned legal mail related to criminal matters. Here, 10 however, Plaintiff is an SVPA civil detainee. SVPA detainees have a statutory right to counsel, 11 Hydrick, 500 F.3d at 999, and although “involuntary civil commitment ‘constitutes a significant 12 deprivation of liberty that requires due process protection,’” Carty, 426 F.3d at 1073, “the fact 13 that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a 14 ‘criminal prosecution’ for purposes of the Sixth Amendment,” Middendorf, 425 U.S. at 37. 15 Accordingly, the Sixth Amendment is not applicable, Defendants’ motion to dismiss should be 16 granted with respect to the Sixth Amendment claim, and the Sixth Amendment claim should be 17 dismissed with prejudice.6 18 2. Fourteenth Amendment 19 “Persons who have been involuntarily committed are entitled to more considerate 20 treatment and conditions of confinement than criminals whose conditions of confinement are 21 designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982) (citing Estelle v. 22 Gamble, 429 U.S. 97, 104 (1976)). 23 We held in Jones7 that individuals who are civilly detained pending commitment proceedings under the SVPA are “entitled to 24

25 6 “In dismissing for failure to state a claim, ‘a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the 26 allegation of other facts.’” Creech v. Tewalt, 84 F.4th 777, 787–88 (9th Cir. 2023) (citations omitted). Here, the Court finds that amendment of the Sixth Amendment claim would be futile. See Bonin v. 27 Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”). 1 protections at least as great as those afforded to a civilly committed individual[.]” Id. Jones established two presumptions: First, 2 conditions of confinement are presumptively punitive if they are “identical to, similar to, or more restrictive than, those in which [a 3 civil pre-trial detainee’s] criminal counterparts are held.” Id.; see also Youngberg v. Romeo, 457 U.S. 307, 321–22, 102 S.Ct. 2452, 4 73 L.Ed.2d 28 (1982) (requiring civil detainees be given “more considerate treatment” than criminal detainees). Second, conditions 5 of confinement are presumptively punitive if “an individual awaiting SVPA adjudication is detained under conditions more 6 restrictive than those the individual would face following SVPA commitment.” Jones, 393 F.3d at 933. If either presumption 7 applies, the burden shifts to the defendant to show (1) “legitimate, non-punitive interests justifying the conditions of [the detainee’s] 8 confinement” and (2) “that the restrictions imposed ... [are] not ‘excessive’ in relation to these interests.” Id. at 935. 9 10 King v. Cnty. of Los Angeles, 885 F.3d 548, 557 (9th Cir. 2018) (footnote added).8 11 Whether Plaintiff can establish that the promulgated rules, regulations, and policies 12 applied to Plaintiff are similar to or more restrictive than regulations governing his criminal 13 counterparts and whether Defendants can rebut any presumption arising therefrom are issues 14 better suited for resolution at a later stage of the proceedings, such as summary judgment. See 15 Saint-Martin v. Price, No. 1:18-cv-00123-DAD, 2018 WL 2716907, at *6 n.7 (E.D. Cal. June 6, 16 2018). Accordingly, Defendants’ motion to dismiss should be denied with respect to the 17 Fourteenth Amendment claim. 18 V. CONCLUSION 19 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 20 1. Plaintiff’s request for judicial notice (ECF No. 14) be GRANTED IN PART AND 21 DENIED IN PART; 22 2. Defendants’ motion to dismiss (ECF No. 12) be GRANTED IN PART AND 23 8 Here, it is unclear whether Plaintiff is awaiting SVPA adjudication or has been committed following 24 SVPA adjudication. In the complaint, Plaintiff states that he “is a civil detainee pursuant to Welfare and Institutions Code section 6602, non-adjudicated Sexually Violent Predator.” (ECF No. 1 at 8 (emphasis 25 added).) Regardless, for purposes of this motion to dismiss, it appears that whether Plaintiff is awaiting SVPA adjudication or has been committed following SVPA adjudication is a distinction that is not 26 relevant given that Defendants argue in their reply that “[t]o the extent that Plaintiff’s Due Process claim is based on him being subject to conditions more restrictive than individuals detained under criminal 27 codes, his claim also fails” because “[c]ivilly detained individuals can be subject to restrictions that have a legitimate, non-punitive government purpose and that do not appear to be excessive in relation to that 1 DENIED IN PART; and 2 3. Plaintiff's Sixth Amendment claim be DISMISSED with prejudice. 3 Further, the Court DIRECTS the Clerk of Court to assign a District Court Judge to the 4 | present matter. 5 These Findings and Recommendations will be submitted to the United States District 6 | Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 7 | THIRTY (30) days after being served with a copy of these Findings and Recommendations, any 8 | party may file written objections with the court and serve a copy on all parties. Such a document 9 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 10 | reply to the objections shall be served and filed within FOURTEEN (14) days after service of 11 | the objections. The parties are advised that failure to file objections within the specified time 12 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. 16] Dated: _ January 25, 2024 [sf Sy — 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28