(PC) Hester v. Clendenin

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HESTER, Case No. 1:20-cv-01569-DAD-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND 13 v. (ECF No. 23) 14 CLENDENIN, et al., ORDER GRANTING PLAINTIFF’S MOTION 15 Defendants. REQUESTING LEAVE TO FILE SURREPLY (ECF No. 24) 16 FINDINGS AND RECOMMENDATIONS TO 17 GRANT DEFENDANT’S MOTION TO 18 DISMISS (ECF No. 18) 19 FOURTEEN (14) DAY DEADLINE 20 21 I. Introduction 22 Plaintiff William Hester (“Plaintiff”) is a civil detainee proceeding pro se and in forma 23 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to 24 California Welfare and Institutions Code § 6600 et seq. are civil detainees and are not prisoners 25 within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 26 (9th Cir. 2000). This action proceeds on Plaintiff’s first amended complaint for substantive due 27 process and First Amendment claims against Defendant Stephanie Clendenin, in her official 28 capacity, with respect to the policy adopted in California Code of Regulations, Title 9, § 4350 1 precluding patients committed to California State Hospitals from possessing communication and 2 internet capable devices. 3 On September 27, 2021, Defendant filed a motion to dismiss on the ground that the matter 4 is time-barred, the complaint fails to state a claim upon which relief can be granted, and 5 Defendant is entitled to judgment as a matter of law. (ECF No. 18.) Plaintiff filed an opposition 6 on October 18, 2021, (ECF No. 20), and Defendant filed a reply brief on October 25, 2021, (ECF 7 No. 21). 8 On November 4, 2021, Plaintiff filed a motion for leave to file a second amended 9 complaint, together with a motion requesting to file a surreply to Defendant’s motion to dismiss. 10 (ECF Nos. 23, 24.) Defendant did not file an opposition or otherwise respond to these motions, 11 and the deadline to do so has expired. 12 Defendant’s motion to dismiss and Plaintiff’s motions to amend and to file a surreply are 13 deemed submitted. Local Rule 230(l). 14 II. Plaintiff’s Motion to Amend 15 In his motion to amend, Plaintiff states that since the initial filing, additional facts have 16 come to light that support the cause of action in the complaint, and he requests leave to file a 17 second amended complaint to state these new facts and to clarify any confusion between 18 historical information and current facts or conditions. (ECF No. 23.) Plaintiff did not attach a 19 proposed second amended complaint. 20 “Under Federal Rule of Civil Procedure 15(a), leave to amend shall be freely given when 21 justice so requires. However, the district court may exercise its discretion to deny leave to amend 22 due to undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure 23 deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . , and 24 futility of amendment.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) 25 (citations and internal quotation marks and brackets omitted); see also Lopez v. Smith, 203 F.3d 26 1122, 1127 (9th Cir. 2000) (“[I]n dismissing for failure to state a claim under Rule 12(b)(6), a 27 district court should grant leave to amend even if no request to amend the pleading was made, 28 unless it determines that the pleading could not possibly be cured by the allegation of other facts.” 1 (citation and internal quotation marks omitted)). 2 Although Defendant apparently has no opposition to the filing of a second amended 3 complaint, as discussed in the findings and recommendations below, the Court has determined 4 that Plaintiff’s claims are barred by the applicable statute of limitations. As Plaintiff cannot plead 5 any additional facts regarding more recent events that would cure this defect, it would be futile to 6 grant Plaintiff leave to amend. See Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 7 1060 (9th Cir. 2008). 8 III. Plaintiff’s Motion to File Surreply 9 In conjunction with his motion to amend, Plaintiff filed a request to file a surreply to 10 Defendant’s motion to dismiss, including a proposed surreply. (ECF No. 24.) The proposed 11 surreply argues that Plaintiff’s complaint is based on current conditions due to current policies in 12 effect, and Defendant is misapplying historical information and confusing the issue at hand. 13 Plaintiff contends that the statute of limitations only applies to requests for monetary damages, 14 which are not permitted in this suit pursuant to the Court’s screening order. Plaintiff is only 15 requesting injunctive and declaratory relief based on the current conditions, and a second 16 amended complaint would clarify this by removing historical references and focusing on current 17 conditions and policies. (Id.) 18 Generally, parties do not have the right to file sur-replies, and motions are deemed 19 submitted when the time to reply has expired. Local Rule 230(l). The Court generally views 20 motions for leave to file sur-replies with disfavor. Hill v. England, No. CVF05869 REC TAG, 21 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes–Benz USA, LLC, 366 F. 22 Supp. 2d 1190, 1197 (N.D. Ga. 2005)). However, district courts have the discretion to either 23 permit or preclude a sur-reply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 24 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit “inequitable 25 surreply”); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district 26 court did not abuse discretion in denying leave to file sur-reply where it did not consider new 27 evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply 28 may not be considered without giving the non-movant an opportunity to respond). In this Circuit, 1 courts are required to afford pro se litigants additional leniency. E.g., Wilhelm v. Rotman, 680 2 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. 3 Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th 4 Cir. 2010). 5 Here, in light of Defendant’s apparent non-opposition and Plaintiff’s pro se status, the 6 Court will exercise its discretion and grant the motion to file a surreply. The Court will consider 7 the evidence presented, as discussed below. 8 III. Defendant’s Motion to Dismiss 9 A. Legal Standard 10 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 11 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 12 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 13 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 14 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 15 McKeithen, 395 U.S. 411, 421 (1969); Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 16 1999). In ruling on the motion, the court “may generally consider only allegations contained in 17 the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” 18 Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and 19 quotation marks omitted). The court may also consider documents incorporated by reference into 20 the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 21 In general, pro se pleadings are held to a less stringent standard than those drafted by 22 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe 23 such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). 24 However, a court’s liberal interpretation of a pro se complaint may not supply essential elements 25 of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th 26 Cir. 1982). Also, the Court need not credit “naked assertions,” “labels and conclusions” or “a 27 formulaic recitation of the elements of a cause of action.” See Bell Atlantic Corp. v. Twombly, 28 550 U.S. 544, 555–57 (2007). 1 B. Summary of Relevant Allegations in First Amended Complaint 2 Plaintiff is currently housed at Coalinga State Hospital, where the events in the first 3 amended complaint are alleged to have occurred. Plaintiff alleges that he arrived at Coalinga 4 State Hospital on April 17, 2005, and has been suffering the alleged causes of action from April 5 17, 2005 to the present. Plaintiff names Stephanie Clendenin, Director of State Hospitals, as the 6 sole defendant. Defendant Clendenin is named in her official capacity. 7 Plaintiff alleges that he, as a civil detainee, has the right to be free from punishment. 8 Defendant is the top policy maker responsible for the policies at issue. Plaintiff alleges that the 9 Sexual Violent Predator Act does not implicate punishment and retribution and deterrence cannot 10 be used to implement regulations that pertain to Plaintiff. Plaintiff alleges title 9, § 43501 does 11 not have penological interest, and cannot be for the purpose of punishment, retribution, or 12 deterrence. Nevertheless, implementation of § 4350, designed to enforce deterrence, is punishing 13 Plaintiff because it is a blanket regulation and not case specific to Plaintiff. That makes it 14 punishment and subjects Plaintiff to conditions of confinement more restrictive than those for 15 criminals on parole and probation and his SVP peers on ConRep/Liberty. This violates Plaintiff’s 16 due process rights under the Fourteenth Amendment. 17 In addition, the regulations are designed in a way to obstruct Plaintiff’s access to political 18 information and discussions, which are predominantly distributed and conducted online. Plaintiff 19 is being functionally denied access to society and his rights of free speech in violation of the First 20 Amendment. 21 Plaintiff is seeking declaratory and injunctive relief.2 22 C. Parties’ Positions 23 Defendant argues that Plaintiff’s claims are barred by the two-year statute of limitations. 24 (ECF No. 18, p. 4.) Plaintiff admits that he was subject to the challenged electronic property 25

1 9 C.C.R. § 4350 prohibits as contraband, electronic devices with communication and internet capabilities, such as 26 devices capable of connection to the internet, computers, digital memory storage, and other means of memory storage. 27

2 As Plaintiff is suing Defendant Clendenin in her official capacity, his claim for monetary damages is barred by the 28 Eleventh Amendment. (ECF No. 11.) 1 restrictions immediately upon his admission to Coalinga State Hospital on April 17, 2005, while 2 § 4350 was first promulgated on October 26, 2009. Defendant contends that the statute of 3 limitations commences to run from, at the latest, October 26, 2009, and given the two-year statute 4 of limitations, Plaintiff had a deadline of October 26, 2011 to initiate this action. However, 5 Plaintiff fails to explain why he waited until May 7, 2021 to file suit.3 Further, Plaintiff is not 6 excused by the continuing violations doctrine, as it is inapplicable to Plaintiff’s individualized 7 claim. 8 In his opposition, Plaintiff contends that his complaint is not time-barred, because 9 although the first element of the complaint may have started nine years back, the last element has 10 not been reached due to current conditions amounting to punishment. Plaintiff argues that 11 although the statute of limitations may have started to run nine years ago, when the Plaintiff was 12 aware of the conditions, in a continuous violation the statute of limitations is used to bar older 13 events but not those within the statute of limitations. Further, there should be no limit to 14 equitable tolling. In this case, Plaintiff argues that the statute of limitations should also be four 15 years, not two, and that those four years should only be applied from the filing date of the case 16 back four years for a claim for money damages only. 17 In reply, Defendant argues that equitable tolling does not apply because Plaintiff admits 18 that he was aware that he was subject to the challenged electronic property restrictions since April 19 17, 2005, but pleads no facts indicating that he was otherwise pursuing other legal remedies 20 challenging the restrictions prior to filing this suit. The continuing violations doctrine is also 21 inapplicable because Plaintiff alleges only individualized claims, and while he remains subject to 22 the electronic property restrictions, no new acts are occurring to create an obligation and the 23 restrictions do not impose a continuing or recurring obligation that would trigger a new 24 limitations period. 25 In his surreply, Plaintiff argues that Defendant is misapplying historical information and 26 confusing the issue at hand, and the historical information is provided to be informational in 27 3 Defendant erroneously states that May 7, 2021 is the date Plaintiff filed suit. The Court clarifies that while the first 28 amended complaint was filed on May 7, 2021, Plaintiff initiated this action on November 6, 2020. (ECF No. 1.) 1 nature only. The cause of action relates to current ongoing and evolving conditions, and therefore 2 the statute of limitations, which would apply to requests for monetary damages, does not apply to 3 the injunctive and declaratory relief requested in this suit. 4 D. Statute of Limitations 5 Section 1983 contains no specific statute of limitations. Therefore, federal courts apply 6 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 7 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. Shedler, 8 192 F.3d 911, 914 (9th Cir. 1999). California’s statute of limitations for personal injury actions is 9 two years. Cal. Civ. Proc. Code § 335.1; Jones, 393 F.3d at 927; Maldonado, 370 F.3d at 10 954−55. 11 Federal law determines when a civil rights claim accrues, and “[u]nder federal law, a 12 claim accrues when the plaintiff knows or should know of the injury that is the basis of the cause 13 of action.” Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citation omitted); 14 Maldonado, 370 F.3d at 955; Fink, 192 F.3d at 914. 15 In actions where the federal court borrows the state statute of limitations, courts should 16 also borrow all applicable provisions for tolling the limitations found in state law. Jones, 393 17 F.3d at 927. Under California law, the two-year statute of limitations is tolled during the time a 18 prisoner pursues his administrative remedies and is potentially tolled up to an additional two 19 years if Plaintiff is incarcerated for a term of less than life. Douglas, 567 F.3d at 1109 (“State law 20 governs the statute of limitations period for § 1983 suits and closely related questions of tolling. 21 Section 1983 claims are characterized as personal injury suits for statute of limitations purposes” 22 (citations omitted)); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he applicable statute 23 of limitations must be tolled while a prisoner completes the mandatory exhaustion process.”); Cal. 24 Civ. Proc. Code §§ 335.1, 352.1(a). 25 As noted above, Plaintiff is a civil detainee, not a prisoner. By its terms, Section 352.1 26 does not apply to civil detainees. See Jones, 393 F.3d at 927 (“the literal language of the statute 27 does not cover Jones, a civil detainee”). Nevertheless, by applying California’s doctrine of 28 equitable tolling, the Ninth Circuit has found that “a continuously confined civil detainee who has 1 pursued his claim in good faith” may take advantage of tolling. Id. at 930; see also Fink v. 2 Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (requirements for equitable tolling in California). The 3 Ninth Circuit found that “ ‘actual, uninterrupted incarceration is the touchstone’ for applying 4 California’s tolling provision for the disability of imprisonment,” Jones, 393 F.3d at 928 (quoting 5 Elliott v. City of Union City, 25 F.3d 800, 803 (9th Cir. 1994)), and that the rationale behind the 6 rule “applies with equal force to the case of an individual continuously detained under civil 7 process,” id. The Ninth Circuit observed that, “[l]ike criminal inmates, civil detainees litigate 8 under serious disadvantages. The civilly confined are limited in their ability to interview 9 witnesses and gather evidence, their access to legal materials, their ability to retain counsel, and 10 their ability to monitor the progress of their lawsuit and keep abreast of procedural deadlines.” 11 Id. at 929. 12 California law also provides for equitable tolling of the statute of limitations where a 13 plaintiff meets three conditions: “(1) defendant must have had timely notice of the claim; (2) 14 defendant must not be prejudiced by being required to defend the otherwise barred claim; and (3) 15 plaintiff’s conduct must have been reasonable and in good faith.” Fink, 192 F.3d at 916 (citation 16 and quotation marks omitted); see also Addison v. State of Cal., 21 Cal. 3d 313, 319 (1978) 17 (citations omitted). 18 “The continuing violation theory applies to § 1983 actions[.]” Knox v. Davis, 260 F.3d 19 1009, 1013 (9th Cir. 2001). “Since [Plaintiff] does not allege a system or practice of 20 discrimination, the only way [he] can hope to show a continuing violation is to ‘state facts 21 sufficient . . . [to] support[ ] a determination that the alleged . . . [violations] are related closely 22 enough to constitute a continuing violation, and that one or more of the acts falls within the 23 limitations period.’ ” Id. (citations omitted). However, the Ninth Circuit “has repeatedly held 24 that a mere continuing impact from past violations is not actionable.” Id. (citations and internal 25 quotation marks omitted). 26 E. Discussion 27 Plaintiff arrived at Coalinga State Hospital on April 17, 2005, and has been subject to the 28 challenged electronic property restrictions since that date. (ECF No. 7, p. 2.) On October 26, 1 2009, the Department of State Hospitals (“DSH”) promulgated California Code of Regulations, 2 title 9, § 4350. Cal. Code Regs., tit. 9, § 4350. “Section 4350 prohibits Sexually Violent 3 Predators . . . who have been civilly committed to a DSH-operated hospital from possessing 4 electronic devices, including personal laptops, capable of connecting to a wired or wireless 5 communications network.” Allen v. King, 741 F. App’x 463, 463 (9th Cir. 2018). As Plaintiff 6 admits that he was aware that he was subjected to the challenged electronic property restrictions 7 upon his arrival at Coalinga on April 17, 2005, Plaintiff’s claims accrued, at the earliest, on April 8 17, 2005. However, as Plaintiff challenges § 4350 specifically, his claims with respect to § 4350 9 accrued on October 26, 2009, when the regulation was promulgated. 10 The Court applies California’s two-year statute of limitations for personal injury claims to 11 Plaintiff’s § 1983 claims. Douglas, 567 F.3d at 1109. Although Defendant asserts that only the 12 standard two-year statute of limitations applies, Defendant does not dispute that Plaintiff was 13 continuously detained from April 17, 2005 to the present. Therefore, the Court will assume for 14 purposes of this motion that Plaintiff may take advantage of section 352.1’s additional two years 15 of tolling. Jones, 393 F.3d at 930; Cal. Civ. Proc. Code §§ 335.1, 352.1(a). 16 Plaintiff has not otherwise presented any argument that he is entitled to additional 17 equitable tolling. Plaintiff has not alleged that he was in any way prevented from filing a lawsuit 18 regarding these claims prior to filing this action, or that he was pursuing another remedy in 19 another forum. 20 Rather, Plaintiff contends that his complaint is not time-barred because he remains subject 21 to conditions that amount to punishment, he is not seeking monetary damages, and his claims fall 22 under the continuing violations doctrine. The Court finds the argument regarding the merits of 23 Plaintiff’s claims and whether he is subject to conditions amounting to punishment to be 24 irrelevant, because the Court does not consider the merits of a claim when deciding whether a 25 claim is barred by the applicable statute of limitations. See Lukovsky v. City & Cty. of San 26 Francisco, 535 F.3d 1044, 1046 (9th Cir. 2008). As to the argument regarding monetary 27 damages, Plaintiff does not identify, and the Court is unaware of, any authority which limits the 28 statute of limitations in civil rights actions to claims for monetary damages, but exempts claims 1 for injunctive or declaratory relief. 2 Finally, the continuing violation doctrine is inapplicable to this action because Plaintiff 3 has failed to establish that a new violation occurs every day that § 4350 remains in effect. Rather, 4 the fact that Plaintiff has been prohibited from possessing such a device or accessing the Internet 5 since he arrived at Coalinga State Hospital is merely the continuing effect of the bans imposed by 6 the enactment of the challenged regulations. Knox, 260 F.3d at 1013 (mere continuing impact 7 from past violations is not actionable); see also Consiglio v. Brown, Case No. 1:16-cv-01268- 8 AWI-SAB (PC), 2019 WL 6338117, at *3 (E.D. Cal. Nov. 27, 2019) (dismissing challenge to 9 § 4350 as barred by the statute of limitations and finding no continuing violation). 10 Accordingly, the Court finds that Plaintiff’s claim accrued on October 26, 2009, 11 when§ 4350 was first promulgated. The statute of limitations applicable to Plaintiff’s claims 12 lapsed on October 26, 2013, four years after Plaintiff’s claim accrued on October 26, 2009. As 13 Plaintiff did not file the instant action until November 6, 2020, seven years later, Plaintiff’s 14 claims are time-barred. Although Plaintiff has moved for leave to file a second amended 15 complaint with facts regarding recent events, any recent allegations related to the claims in this 16 suit would similarly be the continuing impact of the original challenged regulations. Therefore, 17 Plaintiff cannot plead any additional facts that would cure this defect, and the Court finds that it 18 would be futile to grant Plaintiff leave to amend. See Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 19 522 F.3d 1049, 1060 (9th Cir. 2008). 20 IV. Order and Recommendation 21 Based on the foregoing, it is HEREBY ORDERED as follows: 22 1. Plaintiff’s motion for leave to amend, (ECF No. 23), is DENIED; and 23 2. Plaintiff’s motion requesting leave to file surreply, (ECF No. 24), is GRANTED. 24 * * * 25 Furthermore, it is HEREBY RECOMMENDED that: 26 1. Defendant’s motion to dismiss, (ECF No. 18), be GRANTED, without leave to amend; 27 and 28 2. This action be DISMISSED, with prejudice, as time-barred. 1 * * * 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 4 fourteen (14) days after being served with these Findings and Recommendations, the parties may 5 file written objections with the Court. The document should be captioned “Objections to 6 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 7 objections within the specified time may result in the waiver of the “right to challenge the 8 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 9 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11

12 Dated: July 7, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13

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