(PC) Kindred v. Allenby

Opinion

Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 1 of 35

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 RICHARD SCOTT KINDRED, Case No. 1:18-cv-00554-DAD-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS’ 13 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART 14 BRANDON PRICE, et al., (ECF No. 65) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 TWENTY-ONE DAYS 17 I. INTRODUCTION 18 Plaintiff Richard Scott Kindred (“Plaintiff”) is a civil detainee proceeding pro se and in 19 forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 This case proceeds on Plaintiff’s Third Amended Complaint (“TAC”) alleging claims 21 against Defendants Brandon Price, J. Corona, Jorge Lopez, and John/Jane Does 1-5 for violation 22 of Plaintiff’s Fourth Amendment right against unreasonable search and seizure; against 23 Defendants J. Corona and Jorge Lopez for violation of Plaintiff’s First Amendment right to freely 24 exercise his religion; and against John/Jane Does 6-10 for violation of Plaintiff’s First 25 Amendment right to access the courts. (ECF No. 23 at 2.) 26 On December 4, 2020, Defendants Brandon Price, J. Corona, and Jorge Lopez

27 (“Defendants”) filed a motion for summary judgment on Plaintiff’s claims for violation of his

28 Fourth Amendment rights as to each Defendant and for violation of Plaintiff’s First Amendment 1 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 2 of 35

1 Rights against Defendants Corona and Lopez. (ECF No. 65.) Defendant filed an opposition on

2 March 11, 2021. (ECF No. 75.) Defendants filed a reply on March 26, 2021. (ECF No. 76.)

3 For the reasons that follow, the Court will recommend that Defendants’ motion for

4 summary judgment be granted in part and denied in part.

5 II. BACKGROUND a. Summary of Plaintiff’s Claims 6 Plaintiff is a civil detainee at the Department of State Hospitals—Coalinga (“DSH- 7 Coalinga”) confined pursuant to California’s Sexually Violent Predator Act. Plaintiff alleges that, 8 between January 12, 2018, and February 20, 2018, Defendant Brandon Price, Executive Director 9 of DSH-Coalinga, ordered staff to conduct unit to unit searches pursuant to an emergency 10 regulation deeming certain electronic devices as contraband. (ECF No. 16 at 4-5.) Plaintiff’s 11 personal property items, including an electric razor, battery-operated alarm clock, and down 12 pillows, were taken during these searches. (Id. at 5.) These items were not returned and were 13 destroyed without any compensation to Plaintiff. (Id. at 10.) 14 Plaintiff also alleges that, on May 29, 2018, Plaintiff’s religious and non-religious 15 personal property items, including a ceremonial ribbon shirt, ceremonial deer skin trousers, 16 spiritual blanket, large black duffel bag, small leather/suede duffel bag, rechargeable batteries, 17 and 24” Samsung television, were taken during a search of his living area. (ECF No. 16 at 6-7.) 18 The search was conducted by Defendant Corona but Defendant Lopez was also present during the 19 search and told Plaintiff he would watch the other officers perform the search. (Id. at 7.) 20 Finally, Plaintiff alleges that certain undesignated defendants were unable to locate/lost a

21 gray bin that contained Plaintiff’s legal paperwork, causing Plaintiff to miss a deadline for filing a

22 petition with the U.S. Supreme Court. (ECF No. 16 at 7-8.)

23 On July 8, 2019, the Court entered findings and recommendations recommending that this action proceed on the following: (1) Plaintiff’s Fourth Amendment search and seizure claims 24 against Defendant Price and John/Jane Does 1-5 arising out of the January/February 2018 search; 25 (2) Plaintiff’s Fourth Amendment search and seizure claims against Defendants Corona and 26 Lopez arising out of the May 29, 2018 search; (3) Plaintiff’s First Amendment free exercise 27 claims against Defendants Lopez and Corona arising out of the May 29, 2018 search; and (4) 28 2 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 3 of 35

1 Plaintiff’s First Amendment access to the courts claim against John/Jane Does 6-10 arising out of

2 the loss of Plaintiff’s legal paperwork. (ECF No. 19.)

3 On October 18, 2019, the district judge assigned to the case entered an order adopting the

4 Court’s findings and recommendations in full. (ECF No. 23.)

5 III. MOTION FOR SUMMARY JUDGMENT a. Defendants’ Motion 6 On December 4, 2020, Defendants filed their motion for summary judgment. (ECF No. 7 65.) Defendants argue that Plaintiff has not demonstrated Article III standing on his claims. (ECF 8 No. 65-2 at 18-22.) According to Defendants, Plaintiff cannot show an injury in fact that is 9 traceable to Defendants or redressable by a favorable decision of this Court because: (1) his 10 alleged harm is self-inflicted; (2) the injuries for which he seeks relief are not traceable to Lopez; 11 (3) Price cannot be held responsible either as a supervisor or for his individual actions; (4) Corona 12 conducted a lawful search and confiscated contraband; and (5) Plaintiff’s alleged injuries cannot 13 be redressed by a favorable decision. (Id.) 14 Defendants also argue that Plaintiff’s First Amendment claim fails and Defendants Corona 15 and Lopez are entitled to summary judgment because Plaintiff cannot establish that the items at 16 issue were mandated by his faith and the denial of religious items did not place a substantial 17 burden on Plaintiff’s religious practice. (ECF No. 65-2 at 22-27.) Additionally, Defendants are 18 entitled to summary judgment on Plaintiff’s Fourth Amendment claims because Plaintiff did not 19 have a reasonable expectation of privacy during either the January 2018 or the June 2018 search 20 and the items seized were contraband. (Id. at 27-29.) Even if non-contraband items were

21 inadvertently confiscated, there was no Fourth Amendment violation because California law

22 provides Plaintiff with a post-deprivation remedy and Plaintiff was permitted to mail out

23 confiscated property. (Id. at 30-31.) Finally, Defendants are entitled to qualified immunity. (Id. at 31-33.) 24 b. Plaintiff’s Opposition 25 Plaintiff filed an opposition to Defendants’ motion for summary judgment on March 11, 26 2021. (ECF No. 75.) In his opposition, Plaintiff argues that Defendant Price is responsible for 27 running the facility and is just as guilty or liable as the individuals who violated Plaintiff’s civil 28 3 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 4 of 35

1 rights. (Id. at 312, 358.)

2 Plaintiff argues that his injuries are traceable to Defendant Lopez and the May 2018

3 search was an “illegal” search that did not comply with DSH-Coalinga’s policies, procedures,

4 and/or administrative directives. (Id. at 318-19, 329-30, 344-46.) Defendants additionally are not

5 entitled to summary judgment on the Fourth Amendment claims because the items confiscated were not contraband. (Id. at 340.) 6 Finally, Plaintiff argues that the religious items seized during the May 2018 search 7 substantially burdened Plaintiff’s beliefs because DSH-Coalinga is on modified program due to 8 COVID-19 and all services and ceremonies were stopped, therefore the only connection to his 9 spiritual beliefs was his spiritual/healing blanket. (ECF No. 75 at 330, 336-39.)1 10 c. Defendants’ Reply 11 Defendants filed a reply on March 26, 2021. (ECF No. 76.) In their reply, Defendants 12 argue that Plaintiff cannot establish that any of the items confiscated during the May 2018 search 13 are mandated by his faith or that deprivation of these items substantially burdens Plaintiff’s 14 religious practice. (Id. at 2.) Additionally, Plaintiff’s opposition relies on legal conclusions and 15 authorities rather than facts or evidence. (ECF No. 76 at 2-3.) The evidence Plaintiff has produced 16 does not support his claims. (Id. at 3.) Finally, the opposition is fifty-five pages in length and 17 exceeds the twenty-five page limit,2 and the opposition also raises issues that are not part of this 18 case. (Id. at 4.)3 19 1 Plaintiff also makes several arguments that are outside the scope of the TAC and Defendants’ motion for summary 20 judgment. For instance, Plaintiff alleges that: (1) a 500gb hard drive and 63 gb hard drive were voluntarily turned in during DSH-Coalinga’s amnesty program and were supposed to be mailed to Plaintiff’s brother but were not; (2) the June 29, 2018 search was in retaliation for Plaintiff’s civil litigation against DSH-Coalinga and Sergeant Kenneth 21 Bell; and (3) Unit Supervisor Rodriguez took and destroyed Plaintiff’s altar in September of 2019. (ECF No. 75 at 3, 313-314, 339.) These claims were not alleged in the TAC or addressed in the Court’s screening order and Plaintiff 22 has not sought leave to amend his complaint. (See ECF Nos. 16, 19.) Therefore, these arguments are not addressed in the Court’s findings and recommendations. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 23 2000) (finding no error when the district court refused to allow plaintiffs to proceed with a new theory of liability in opposition to a motion for summary judgment after the close of discovery because it would prejudice the defendant). 24 2 Although the Court has considered Plaintiff’s opposition brief in its entirety for purposes of this motion, Defendants 25 are correct that it exceeded the page limitations imposed by the Scheduling Order. Plaintiff is reminded that all moving and opposition briefs are not to exceed twenty-five pages and reply briefs are not to exceed ten pages. (See 26 ECF No. 43 at 4-5.) Future failures to comply with the Court’s orders may result in the imposition of sanctions.

27 3 Defendants also filed various objections to the evidence Plaintiff submitted in support of his opposition. (ECF No. 77.) To the extent the Court necessarily relied on evidence that has been objected to, the Court relied only on 28 evidence it considered to be admissible. Generally, it is not the practice of the Court to rule on evidentiary matters 4 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 5 of 35

1 IV. SUMMARY JUDGMENT LEGAL STANDARDS

2 Summary judgment in favor of a party is appropriate when there “is no genuine dispute as

3 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

4 56(a); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine

5 dispute about material facts, summary judgment will not be granted.”). A party asserting that a

6 fact cannot be disputed must support the assertion by “citing to particular parts of materials in the

7 record, including depositions, documents, electronically stored information, affidavits or

8 declarations, stipulations (including those made for purposes of the motion only), admissions,

9 interrogatory answers, or other materials, or showing that the materials cited do not establish the

10 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

11 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The Court may consider other materials in

12 the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3);

13 Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

14 A party moving for summary judgment “bears the initial responsibility of informing the

15 district court of the basis for its motion, and identifying those portions of ‘the pleadings,

16 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

17 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

18 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “In order to carry its

19 burden of production, the moving party must either produce evidence negating an essential

20 element of the nonmoving party's claim or defense or show that the nonmoving party does not

21 have enough evidence of an essential element to carry its ultimate burden of persuasion at

22 trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If

23 the moving party moves for summary judgment on the basis that a material fact lacks any proof,

24 the Court must determine whether a fair-minded jury could reasonably find for the non-moving

25 party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a

26 individually in the context of summary judgment. “This is especially true when, as here, ‘many of the objections are 27 boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence.’” Capital Records, LLC v. BlueBeat, Inc., 765 F.Supp.2d 1198, 1200 n.1 (C.D. Cal. 2010) (quoting Doe v. 28 Starbucks, Inc., 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009)). 5 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 6 of 35

1 scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

2 evidence on which the jury could reasonably find for the plaintiff.”). “[A] complete failure of

3 proof concerning an essential element of the nonmoving party’s case necessarily renders all other

4 facts immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion

5 cannot be defeated by relying solely on conclusory allegations unsupported by factual data.”

6 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

7 In reviewing the evidence at the summary judgment stage, the Court “must draw all

8 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros

9 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only

10 draw inferences, however, where there is “evidence in the record … from which a reasonable

11 inference … may be drawn…”; the court need not entertain inferences that are unsupported by

12 fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he evidence of the non-

13 movant is to be believed . . ..” Anderson, 477 U.S. at 255.

14 V. DISCUSSION

15 a. Fourth Amendment Claims

16 i. Fourth Amendment Legal Standards

17 The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be 18 violated….” U.S. Const. amend. IV. This prohibition against unreasonable search and seizure 19 extends to incarcerated prisoners and civil detainees. Thompson v. Souza, 111 F.3d 694, 699 (9th 20 Cir. 1997) (prisoners); Hydrick v. Hunter, 500 F.3d 978, 993 (9th Cir. 2007) (civil detainees), 21 judgment vacated on other grounds, 556 U.S. 1256 (2009). 22 For the Fourth Amendment to apply, there must be a “reasonable expectation of privacy in 23 the area invaded.” Espinosa v. City and County of San Francisco, 598 F.3d 528, 533 (9th Cir. 24 2010). “Whether a search is reasonable is determined by assessing, on the one hand, the degree to 25 which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed 26 for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 27 (2006) (internal quotation marks omitted). 28 6 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 7 of 35

1 ii. Supervisory Liability Legal Standards

2 Supervisory personnel are not liable under section 1983 for the actions of their employees

3 under a theory of respondeat superior and, therefore, when a named defendant holds a

4 supervisory position, the causal link between the supervisory defendant and the claimed

5 constitutional violation must be specifically alleged. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 6 441 (9th Cir. 1978). To establish liability under section 1983 based on a theory of supervisory 7 liability, a plaintiff must establish that the supervisory defendants either: were personally 8 involved in the alleged deprivation of constitutional rights, Hansen v. Black, 885 F.2d 642, 646 9 (9th Cir. 1989); “knew of the violations and failed to act to prevent them,” Taylor v. List, 880 10 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] a policy so deficient that the 11 policy itself is a repudiation of constitutional rights and is the moving force of the constitutional 12 violation,” Hansen, 885 F.2d at 646 (citations and internal quotation marks omitted). 13 For instance, a supervisor may be liable for his or her “own culpable action or inaction in 14 the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence in the 15 constitutional deprivations of which the complaint is made,” or “conduct that showed a reckless 16 or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 17 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 18 iii. January 2018 Search and Seizure 19 Plaintiff’s claim for violation of his Fourth Amendment rights arising out of the January 20 2018 search of his living area and seizure of his personal property proceeds against Defendant

21 Price and Doe defendants. (ECF No. 19.)

22 Defendant Price moves for summary judgment on the ground that he cannot be held liable

23 either as a supervisor or due to his individual actions. (ECF No. 65-2 at 21.) Plaintiff argues that Defendant Price is liable for the alleged constitutional violations because 24

25 he refused to take any action against those under his authority for either not adhering to his instructions as [to] what they were suppose[d] to be taking as 26 [c]ontraband or he failed to give any and allowed those under his authority just to take and destroy whatever they wanted[.] Either way he is liable since he is the one 27 who gave the order to search patients’ units and he is liable for the actions or inactions of those he told to search and take patients’ property in most cases not 28 leaving a [confiscation] receipt [or] not signing it as they are suppose[d] to do so 7 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 8 of 35

1 they wouldn’t be held accountable for their actions because what they were doing was wrong. 2 (ECF No. 75. at 313.) 3 For the reasons described below, the Court will recommend that summary judgment be 4 granted in favor of Defendant Price on Plaintiff’s Fourth Amendment search and seizure claim. 5 It is undisputed that, on January 12, 2018, Defendant Price issued a memorandum to all 6 DSH-Coalinga patients concerning the Office of Administrative Law’s approval of the emergency 7 amendment to California Code of Regulations title 9 Section 4350 (“Section 4350”), pertaining to 8 electronic devices. (UMF 61, ECF Nos. 65-3 at 8, 75 at 357.) The memorandum notified patients 9 that an emergency regulation had been approved by the Office of Administrative Law and that

10 patients were not permitted to possess certain electronic devices, including but not limited to

11 desktop computers, laptop computers, and digital media recording devices, and that they could

12 not possess floppy disks, hard disks, VHS tapes, and items capable of memory storage (including

13 thumb drives, flash drives, SIM cards, etc.). (UMF 62, ECF Nos. 65-3 at 8, 75 at 357.) An Amnesty and Voluntary Turn-in Program was in effect from January 19, 2018, through January 14 28, 2018 where patients were given the option to sign a voluntarily consent form and turn over 15 devices that would be considered contraband. (UMF 65, ECF Nos. 65-3 at 8, 75 at 357.) At the 16 end of the amnesty/grace period, DSH Coalinga conducted a facility-wide search. (UMF No. 66, 17 ECF Nos. 65-3 at 9, 75 at 358.)4 18 Plaintiff does not challenge the constitutionality of Section 4350. See Allen v. King, 741 19 Fed.Appx. 463 (9th Cir. 2018) (affirming district court’s grant of summary judgment on 20 substantive due process challenges to Section 4350). Plaintiff also does not challenge the 21 constitutionality of the facility-wide search.5 Defendant Price therefore is not liable for 22 4 23 Defendant contends that the facility-wide search lasted from January 29, 2018, to January 31, 2018. (UMF No. 67; ECF No. 65-3 at 9.) Plaintiff contends that his unit was searched three separate times and one of them was in 24 February. (ECF No. 75 at 358.) However, it is undisputed that the search at issue here occurred on January 28 or 29, 2018. (See Office of Patients’ Rights Complaint Form dated March 26, 2018; ECF No. 75 at 36 (“On January 28th or 29th 2018, Complainant Unit [sic] was searched.”).) 25 5 Plaintiff’s response to the Separate Statement of Undisputed Material Facts indicates he disputes Defendants’ 26 statement that “[a]t the end of the amnesty/grace period, it was necessary to conduct a search of every room on every unit in the entire facility for any electronic contraband” because Plaintiff contends that “the reason for the hospital 27 wide search was suppose[d] to be for the search for electronic devices that could store data.” (UMF No. 66; ECF No. 65-3 at 9, 75 at 358.) In support, Plaintiff cites the notice of emergency regulations regarding Section 4350. (ECF No. 28 75 at 9-19, 358.) However, there does not appear to be a material distinction between “electronic contraband” and 8 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 9 of 35

1 promulgating or implementing a deficient policy.

2 The Court also finds that there is no genuine dispute of fact that Defendant Price was not

3 personally involved in the January 2018 search. Defendant Price provides a sworn declaration

4 stating that he did not personally participate in the physical search, did not instruct staff to

5 confiscate non-contraband, and did not learn that non-contraband property had been confiscated until after the search was completed. (Declaration of Brandon Price, ECF No. 65-6 at 7-8; UMF 6 Nos. 70-71, ECF Nos. 65-3 at 9, 75 at 358.) Defendant Price meets his burden of showing that he 7 was not personally involved in the January 2018 search and the burden shifts to Plaintiff to show 8 some evidence that Defendant Price was personally responsible for the actions Plaintiff claims 9 violated his rights. Black v. Hansen, 2015 WL 1294965, at *7 (E.D. Cal. Mar. 23, 2015). 10 Plaintiff argues that Defendant Price did not act to stop or report the violations, either 11 refused to take any action against those under his authority who did not adhere to his instructions 12 regarding what they were supposed to be taking or failed to give any instructions at all, and 13 allowed individuals under his authority to just take and destroy whatever they wanted. (ECF No. 14 75 at 312, 358.) According to Plaintiff, Defendant Price “is liable since he is the one who gave the 15 order to search patients’ units and he is liable for the actions or inactions of those he told to search 16 and take patients’ property[.]” (Id. at 358.) 17 The Court does not find Plaintiff’s arguments persuasive. Plaintiff states that Defendant 18 Price admitted to failing to properly give instructions to those in supervisory positions. (ECF No. 19 75 at 358.) However, Plaintiff does not identify any supporting evidence for this argument. See 20 Taylor, 880 F.2d at 1045 (“A summary judgment motion cannot be defeated by relying solely on 21 conclusory allegations unsupported by factual data.”). Defendant Price’s declaration states that 22 “[a]ll employees receive in-service training on control of contraband” and “I never instructed 23 DSH-Coalinga staff to confiscate non-contraband items during the facility-wide search in January 24 2018.” (Price Decl., ECF No. 65-6 at 2.) Further, according to Defendant Price’s declaration, he 25 was “made aware that some non-contraband items may have been inadvertently confiscated 26 during the search” after the search was completed. (Id. at 8.) After Defendant Price learned that 27 “electronic devices that could store data” and Plaintiff does not argue that the facility-wide search itself was 28 unconstitutional. 9 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 10 of 35

1 some non-contraband items may have been confiscated, according to his declaration, “DSH-

2 Coalinga staff work[ed] to return . . . non-contraband items to patients.” (Id.) Plaintiff did not

3 submit any evidence rebutting Defendant Price’s declaration. Therefore, there is no genuine

4 dispute that training on control of contraband was provided, DSH-Coalinga staff was not

5 instructed to confiscate non-contraband items during the January 2018 search, Defendant Price

6 learned that non-contraband items were confiscated after the search was complete, and efforts

7 were made to return non-contraband to patients.

8 Plaintiff also contends that that Defendant Price admitted that he was made aware that

9 staff were not adhering to his directions and were taking non-contraband. (ECF No. 75 at 358.)

10 The evidence Plaintiff submits in support of his opposition includes correspondence from the

11 Office of Patients’ Rights and from Defendant Price acknowledging that non-contraband was inadvertently taken during the January 2018 search. (See ECF No. 75 at 58, 63-64.) However, 12 these letters are respectively dated June 8, 2018, and September 19, 2018, after the facility-wide 13 search was conducted. (See id.) This evidence does not indicate that Defendant Price was made 14 aware either during or before the search that any non-contraband was taken. Construing the 15 evidence in the light most favorable to Plaintiff, no reasonable jury could find that Defendant 16 Price was personally involved in the January 2018 search. 17 Finally, as to Plaintiff’s argument that Defendant Price is liable for the conduct of others 18 solely because he “gave the order” to perform the search, Defendant Price cannot be held liable 19 for the actions of his subordinates under a vicarious liability theory. See Iqbal, 556 U.S. 662 20 (holding that, when a supervisor does not directly participate in the constitutional violation, the 21 supervisor cannot be liable under § 1983 unless the plaintiff shows the supervisor through his 22 “own individual actions violated the constitution”). Here, the evidence before the Court, even 23 when viewed in the light most favorable to Plaintiff, does not establish that Defendant Price 24 implemented an unconstitutional policy, was personally involved in the alleged deprivation of 25 Plaintiff’s constitutional rights, or knew of the violations and failed to act to prevent them. 26 The Court will therefore recommend that summary judgment be granted to Defendant 27 Price on Plaintiff’s Fourth Amendment search and seizure claim arising out of the January 2018 28 10 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 11 of 35

1 search.6

2 iv. June 2018 Search and Seizure7

3 Plaintiff’s Fourth Amendment claims arising out of the June 2018 search and seizure

4 proceed against Defendants Corona and Lopez. (ECF No. 19 at 12.)

5 Defendants Corona and Lopez move for summary judgment on several grounds, including that: (1) the items seized were contraband; (2) Defendant Lopez was not involved in the search or 6 seizure; (3) the search was not unlawful because Plaintiff did not have a reasonable expectation of 7 privacy in his living area pursuant to AD 820; (4) California law provides Plaintiff with an 8 adequate post-deprivation remedy; (5) Plaintiff was permitted to mail out the seized items; and 9 (6) Defendants Corona and Lopez are entitled to qualified immunity. (ECF No. 65-2.) Plaintiff, in 10 turn, argues that none of the items seized were contraband, Defendant Lopez was involved in the 11 search, the search was not conducted according to DSH-Coalinga’s policies, and Defendants 12 Corona and Lopez are not entitled to qualified immunity. (ECF No. 75.) 13 For the following reasons, the Court will recommend that Defendants Corona and Lopez 14 be granted summary judgment as to Plaintiff’s Fourth Amendment claim arising out of the seizure 15 of Plaintiff’s ribbon shirt and deer skin trousers and that summary judgment be denied as to the 16 remainder of Plaintiff’s Fourth Amendment claims regarding the June 2018 search and seizures. 17 1. Seizure of Contraband 18 It is undisputed that, on June 29, 2018, DSH-Coalinga staff performed a search of 19 Plaintiff’s living area.8 (UMF 97; ECF No. 65-3 at 12.) For purposes of summary judgment, the 20 following items were confiscated during the June 2018 search:9 a black Samsung television with a

21 6 Given the Court’s recommendation, the Court declines to make any findings and recommendations regarding Defendants’ remaining arguments for summary judgment on Plaintiff’s Fourth Amendment claim arising out of the 22 January 2018 search. (See ECF No. 65-2.) 23 7 Although the TAC originally alleged that this search occurred in May of 2018, the parties do not dispute that the search actually occurred on June 29, 2018. (See UMF No. 97; ECF Nos. 65-3 at 12, 75 at 360.) 24 8 In response to Defendant’s statement of undisputed material facts, Plaintiff indicates this fact is “disputed due to the 25 fact that the search and seizure that took place on June 29, 2018, was an illegal search and seizure and a violation of plaintiff’s 1st and 4th Amendment Rights Under the United States Constitution.” (ECF No. 75 at 360.) Therefore, 26 while Plaintiff disputes the legality of the search, he does not dispute that a search occurred on June 29, 2018.

27 9 Plaintiff’s response to Defendant’s statement of undisputed material facts indicates he disputes the purpose of the search, the legality of the search and seizure, and whether the items taken were contraband, but Plaintiff does not 28 indicate that he disputes whether these items were seized during the search. (ECF No. 75 at 360.) 11 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 12 of 35

1 thumb drive attached, a khaki duffel bag containing a shirt and deer skin trousers, a black duffel

2 bag containing a blanket, and batteries.10 (UMF 105-07; ECF Nos. 65-3 at 12, 75 at 360.)

3 Defendants Corona and Lopez argue that the Samsung television, black duffel bag, khaki

4 duffel bag, blanket, ribbon shirt, and deer skin trousers confiscated during the June 2018 search

5 were contraband and therefore Plaintiff either lacks standing because his injuries were self- inflicted or the seizure of those items did not violate the Fourth Amendment.11 (ECF No. 65-2 at 6 11-12.) Plaintiff, in turn, argues that none of these items were contraband. (ECF No. 75 at 345- 7 46.) 8 Samsung Television 9 Defendants Corona and Lopez argue that the television was confiscated because it had a 10 thumb drive plugged into the television and was being used in an improper manner. (ECF Nos. 11 65-2 at 29, 65-3 at 14.) Defendants submit a copy of the Statewide Contraband list, which 12 identifies “[a]ny item that is being used in an improper manner and / or altered in such a manner 13 as to present a danger to the safety of any patient, staff member, or visitor” as contraband. 14 (Declaration of Matthew Day, Ex. 1; ECF No. 65-4 at 5.) Plaintiff, in turn, submits a sworn 15 declaration stating that there was no thumb drive in the pictures of the television produced in 16 discovery.12 (ECF No. 75 at 6.) Plaintiff also submitted a memorandum dated May 13, 2014, from 17 Executive Director Audrey King to the Civil Detainees’ Advisory Council with the subject 18 “Contraband Clarification” which states “[i]mproper should mean that the item is being used in 19 such a way that it presents a danger to the safety of any patient, staff member or visitor.” (ECF 20 No. 75 at 241.)

21 Both parties also produced a copy of a Coalinga State Police Department Report authored

22 by Harry Silvas concerning the June 2018 search. (Day Decl., ECF No. 65-5 at 71-79; ECF No.

23 10 24 Plaintiff alleged that batteries were confiscated during the June 2018 search. Defendants contend that the batteries were not identified on either the search report or the confiscation receipts. (UMF 108, ECF No. 65-3 at 12; ECF No. 65-2 at 29.) Plaintiff asserts that there was no mention of the batteries being confiscated either on the search report or 25 the confiscation receipts because staff failed to write them down. (ECF No. 75 at 361.) Thus, construing the disputed facts in favor of Plaintiff as the non-moving party, the Court will assume that batteries were also confiscated. 26 11 Defendants do not allege the batteries were contraband; they only claim that the batteries were not confiscated. 27 (ECF No. 65-2 at 11-12.)

28 12 Plaintiff also produced copies of the photographs, but they were not legible. 12 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 13 of 35

1 75 at 401-409.) This report states:

2 At approximately 0737 hours, Sergeant Corona located a thumb drive attached to the back of a Black Samsung television with serial number 030R3CPF908113F. At 3 approximately 0740 hours, the thumb drive was removed from the television and I took possession of the thumb drive and kept it in my possession at all times for 4 safe keeping. ... 5 At approximately 0835 hours, Officer Dominguez and I transported the Samsung 6 T.V. to the Patient Property Room. . . . Officer Chavana took possession of the Samsung T.V listed on Kindred’s DSH-C 102 Form. 7 At approximately 0915 hours, I transported the Thumb drive along with the other 8 confiscated items to the Department of Police Services (DPS) Evidence Room. 9 (ECF Nos. 65-6 at 76-78, 75 at 406-408.) 10 Although Plaintiff does not dispute that the thumb drive was contraband, the evidence 11 submitted by the parties indicates that the thumb drive was removed from the television during 12 the search. Additionally, the parties have submitted conflicting evidence regarding the meaning of 13 the term “used in an improper manner” for purposes of the Statewide Contraband list. Viewing 14 the evidence in a light most favorable to Plaintiff, the Court finds that there is a dispute of 15 material fact as to whether the television was used “in an improper manner” and therefore 16 contraband within the meaning of the Statewide Contraband list. 17 Black Duffel Bag and Khaki Duffel Bag 18 Defendants Corona and Lopez argue that the black duffel bag was contraband because it

19 exceeded the allowable size for luggage under the DSH-Coalinga Site Specific Contraband list.

20 (ECF Nos. 65-2 at 29, 65-3 at 3, 16.) Defendants submit a copy of the Site Specific Contraband

21 list, which refers to the Statewide Contraband list’s inclusion of luggage as contraband and says

22 that DSH-Coalinga “considers luggage to be bags larger than 18” x 14” x 8”.” (Day Decl., Ex. 2; ECF No. 65-4 at 11.) 23 Plaintiff does not dispute that the black duffel bag exceeded the size limitations for 24 luggage on the Site Specific Contraband list. (UMF 142, ECF Nos. 65-3 at 6, 75 at 363.) 25 However, Plaintiff argues that the duffel bag was not contraband because the May 13, 2014 26 Contraband Clarification memorandum states that luggage refers to “[a]ny large hard framed 27 and/or hard walled container with handles and/or wheels” and does not include “[a] cloth duffel 28 13 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 14 of 35

1 bag or backpack[.]” (ECF No. 75 at 243.) Defendants did not respond to this argument on reply.

2 (See ECF No. 76.)

3 This evidence, viewed in a light most favorable to Plaintiff, creates a dispute of fact that

4 regarding whether the black duffel bag was contraband.

5 Defendants also argue that the khaki duffel bag was contraband under the same provision of the Site Specific Contraband list defining luggage exceeding specified size limitations as 6 contraband. (ECF Nos. 65-2 at 29, 65-3 at 3, 13.) However, Defendants have not produced any 7 evidence regarding the size of the khaki duffel bag. Defendants therefore not met their burden of 8 establishing that the khaki duffel bag was contraband. 9 Spiritual Blanket 10 Defendants Corona and Lopez argue that the spiritual blanket was contraband under the 11 Site Specific Contraband list. (ECF Nos. 65-2 at 29, 65-3 at 3.) Plaintiff argues that the spiritual 12 blanket was not contraband because he won the right to have the blanket in an appeal. (ECF No. 13 75 at 345.) 14 The Site Specific Contraband list only states that “[b]ed coverings, including but not 15 limited to blankets, bedspreads, quilted bedding items, linen and fleece throws are not to be 16 considered prayer rugs or spiritual rugs.” (Day Decl., Ex. 2, ECF No. 65-4 at 11.) It otherwise 17 does not state that blankets are contraband. 18 Defendants also submit a declaration from Defendant Price stating that “[l]arge quilts or 19 comforters are not permitted in the living space as DSH-Coalinga lacks the laundry facilities to 20 clean them and therefore present a health concern.” (Price Decl.; ECF No. 65-6 at 3.) Defendant

21 Price refers to AD 843, which governs patient living areas, in support of his declaration. (Price

22 Decl., Ex. 7; ECF No. 65-7 at 32-40.) AD 843 states that additional coverings, including blankets,

23 shall not be attached to the privacy or window curtains, and further prohibits “[e]xcessive amounts of items/materials (sheets, blankets, clothing, food, equipment, etc.)” because they 24 constitute a fire hazard. (ECF No. 65-7 at 37.) AD-843 further sets forth a procedure to be 25 followed if a patient’s property is deemed excessive and needs to be removed. (Id. at 37-38.) 26 Neither the Site Specific Contraband list or AD 843 defines blankets as contraband or 27 categorically bans patients from possessing them. Defendants have not submitted any evidence 28 14 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 15 of 35

1 that Plaintiff’s spiritual blanket was “excessive” within the meaning of AD 843. Viewing the

2 evidence in the light most favorable to Plaintiff, the Court finds that Defendants have failed to

3 meet their burden of establishing that the spiritual blanket was contraband.

4 Ribbon Shirt and Deer Skin Trousers

5 Finally, Defendants argue that the ribbon shirt and deer skin trousers were contraband under the Statewide Contraband list. (ECF Nos. 65-2 at 29, 65-3 at 4-5, 8.) The Statewide 6 Contraband list includes “Non State Issued clothing pursuant to California Code of Regulations, 7 title 9, section 890. Exception – personal items such as: shoes, caps, beanies, gloves or 8 undergarments that do not meet other contraband criteria” as contraband.13 (Day Decl., Ex. 1; 9 ECF No. 65-4 at 6.) 10 Plaintiff does not contest that the ribbon shirt and deer skin trousers were non-state issued 11 clothing. Instead, Plaintiff argues that the ribbon shirt and deer skin trousers were not contraband 12 because “the W.R.P.T. has the authority along with program to allow certain items for treatment 13 issues and it is shown that this individual can adhere to the set agreements and follow directions.” 14 (ECF No. 75 at 354.) According to Plaintiff, the ribbon shirt and deer skin trousers were approved 15 by his treatment team and were therefore not contraband. (Id. at 354, 357.) 16 In support of his argument, Plaintiff cites to AD 448 regarding personal leisure equipment 17 and to Plaintiff’s treatment plan. (ECF No. 75 at 354, 357.) AD 448 permits patients to handle, 18 store, purchase, and maintain personal leisure equipment with the approval of their Treatment 19 Plan Team. (ECF No. 75 at 191.) Plaintiff’s treatment plan states that, on April 10, 2018, Plaintiff 20 “obtained approval for ‘Off-unit use of personal art work’ for transporting non-contraband and/or

21 art supplies for Open Art Studio group[.]” (Id.) at 203.) Plaintiff was also granted approval to

22 purchase sinew. (Id. at 204.)

23 Defendants’ evidence establishes that non-state issued clothing is contraband and that the ribbon shirt and deer skin trousers were non-state issued. Defendants have therefore met their 24 burden of establishing that the ribbon shirt and deer skin trousers were contraband. None of 25 Plaintiff’s evidence contradicts these facts or establishes that Plaintiff was permitted to possess 26 27 13 9 C.C.R. § 890 states “[t]he facility director shall specify the types of clothing that are authorized to be worn by 28 non-LPS patients in the facility.” 15 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 16 of 35

1 the ribbon shirt and deer skin trousers. Plaintiff’s treatment plan only states that he may possess

2 non-contraband items and does not reference the ribbon shirt or deer skin trousers. This evidence

3 does not indicate that the treatment team allowed Plaintiff to possess contraband or even had the

4 authority to do so.14 Accordingly, viewing the evidence in the light most favorable to Plaintiff,

5 there is no genuine dispute that the ribbon shirt and deer skin trousers were contraband. As a civil detainee, Plaintiff does not have a constitutional right to possess contraband. 6 See Gould v. Ahlin, 2018 WL 1959545, at *11 (E.D. Cal. Apr. 25, 2018) (finding that a civil 7 detainee did not have a reasonable expectation of privacy in possessing contraband); Knight v. 8 Yarborough, 2011 WL 4550190, at *18 (C.D. Cal. Aug. 22, 2011) (“Inmates do not have a 9 constitutional right to keep, or to dispose of contraband materials as they wish.”). “[T]he 10 reasonableness of a particular search [or seizure] is determined by reference to the [detention] 11 context” including “the safety and security of guards and others in the facility, order within the 12 facility and the efficiency of the facility’s operations.” Hydrick, 500 F.3d at 993 (citations 13 omitted). The seizure of the ribbon shirt and deer skin trousers was reasonable in this context 14 because they were contraband under DSH-Coalinga policies. Plaintiff also does not challenge the 15 constitutionality of the DSH-Coalinga’s contraband policies. Defendants Corona and Lopez are 16 therefore entitled to partial summary judgment on Plaintiff’s Fourth Amendment claim for seizure 17 of the ribbon shirt and deer skin trousers. 18 1. Defendant Lopez 19 Defendants argue that Plaintiff’s injuries are not traceable to Lopez because he did not 20 participate in the search of Plaintiff’s living space. (ECF No. 65-2 at 20-21.) Defendants contend

21 that, on June 29, 2018, Defendant Corona informed Defendant Lopez that a search for contraband

22 14 Plaintiff filed a sworn declaration in support of his opposition stating that his recreational therapist, Richard Sorrentos, would give testimony concerning the approval of the items and ability to store them in his room but 23 Plaintiff has been unsuccessful in contacting Mr. Sorrentos. (ECF No. 75 at 5.) However, this is not sufficient evidence to raise a disputed issue for trial. To be considered on a motion for summary judgment, any evidence must 24 be capable of reduction to an admissible form at trial. Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (“While the evidence presented at the summary judgment stage does not yet need to be in a form that would be 25 admissible at trial, the proponent must set out facts that it will be able to prove through admissible evidence.”). There is no indication that Plaintiff can reduce Mr. Sorrentos’ testimony to an admissible form for trial, as Plaintiff admits 26 that he has not been able to contact Mr. Sorrentos and does not provide any information about whether he would be able to do so in the future. See, e.g., JL Beverage Co. LLC., v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 27 2016) (finding hearsay statements not subject to exception were properly disregarded at summary judgment where party did not argue the out-of-court declarants would be available to testify at trial). 28 16 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 17 of 35

1 would be conducted in Plaintiff’s dorm room. (ECF No. 65-3 at 12.) Defendant Lopez did not

2 take part in the search or confiscation of Plaintiff’s property and was just a witness. (Id.)

3 Defendants cite to the Coalinga State Police Department Report authored by Harry Silvas

4 concerning the June 2018 search. (Id.) According to this report, Defendant Corona notified

5 Defendant Lopez regarding the search shortly before the search occurred and Defendant Lopez agreed to stand by and watch the search. (ECF No. 65-5 at 76.) 6 Plaintiff disputes these facts because he contends Defendant Corona did not tell Defendant 7 Lopez about the search until after it began. (ECF No. 75 at 360.) Plaintiff also argues that 8 Defendant Lopez escorted him from his living area and told him that he would come back and 9 watch the others search Plaintiff’s things. (Id. at 315.) According to Plaintiff, Defendant Lopez is 10 just as guilty and liable for standing by and not taking any action to stop the violations of 11 Plaintiff’s constitutional rights. (Id. at 360.) 12 “[O]fficers have a duty to intercede when their fellow officers violate the constitutional 13 rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416, 1447 n. 25 (9th Cir. 14 1994), rev'd on other grounds, 518 U.S. 81 (1996). “Importantly, however, officers can be held 15 liable for failing to intercede only if they had an opportunity to intercede.” Cunningham v. Gates, 16 229 F.3d 1271, 1289-90 (9th Cir. 2000), as amended (Oct. 31, 2000) (holding that non-shooting 17 and non-present officers cannot be held liable for failing to intercede to prevent shooting); 18 cf. Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (denying summary judgment as to 19 bystander officers because “In none of the affidavits submitted with the officers' motion for 20 summary judgment do any of the officers state they did not have the opportunity to intervene to

21 prevent Officer Meecham from firing the gun. On the other hand, the affidavits of the officers and

22 Robins indicate that all three officers were together in the control bubble”).

23 Defendants argue that an individual may not be held liable merely for being present at the scene of a constitutional violation and Plaintiff must establish that the constitutional deprivation 24 arises from an affirmative act, participation in another’s affirmative acts, or the failure to perform 25 an act which is legally required. (ECF No. 65-2 at 20.) However, the theory at issue in this case is 26 not that Defendant Lopez was merely present during the search. Defendant Lopez was alleged to 27 be liable for his failure to perform an act which was legally required, namely the failure to 28 17 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 18 of 35

1 intervene to prevent the other officers from violating Plaintiff’s Fourth Amendment rights. In the

2 TAC, Plaintiff alleged that Defendant Lopez told him to leave his living area during the June

3 2018 search and stated “I’ll come back and watch them search your area.” (ECF No. 16 at 6-7.)

4 At screening, the Court found that it could be inferred from the allegations of the TAC that

5 Defendant Lopez watched while Defendant Corona and others searched Plaintiff’s living area and failed to prevent the seizure of Plaintiff’s property. (ECF No. 19 at 12.) According to Plaintiff’s 6 allegations, Defendant Lopez was not merely present during the June 2018 search and was an 7 active participant. 8 It is undisputed that Defendant Lopez was present during the search. Defendants do not 9 argue or present any evidence establishing that Defendant Lopez did not have an opportunity to 10 intervene and prevent Defendant Corona or any of the other officers from violating Plaintiff’s 11 Fourth Amendment rights. The parties also dispute when Defendant Corona first told Defendant 12 Lopez about the search, which creates a dispute of fact regarding whether and when Defendant 13 Lopez had an opportunity to intervene. Construing the evidence in Plaintiff’s favor, Defendant 14 Lopez could be liable based on his participation in the June 2018 search even if he himself did not 15 perform the actual search. Accordingly, the Court finds that Defendants have failed to meet their 16 burden of establishing that, as a matter of law, Defendant Lopez was not liable for a violation of 17 Plaintiff’s constitutional rights regarding the June 2018 search. 18 2. Plaintiff’s Expectation of Privacy 19 Defendants Corona and Lopez also argue that the June 2018 search did not violate 20 Plaintiff’s Fourth Amendment rights because Plaintiff did not have a reasonable expectation of

21 privacy in his living area. (ECF No. 65-2 at 29.) Plaintiff, in turn, argues that Defendants Corona

22 and Lopez could not search his living area without probable cause. (Id. at 344.)

23 “[T]he reasonableness of a particular search is determined by reference to the [detention] context.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). Civil detainees are entitled 24 to more considerate treatment and conditions of confinement than prisoners. Youngberg v. 25 Romeo, 457 U.S. 307, 322 (1982). However, there are concerns in the civil detention context that 26 mirror those that arise in prison, and civil detainees remain subject to legitimate, non-punitive 27 government interests such as maintaining facility security and effectively managing the 28 18 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 19 of 35

1 institution. Hydrick, 500 F.3d at 993; Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). 2 The Ninth Circuit has addressed the scope of a civil detainee’s Fourth Amendment rights 3 in Hydrick, 500 F.3d at 993. Hydrick involved a class of civil detainees committed pursuant to 4 California’s Sexually Violent Predator Act alleging that the conditions of their confinement at 5 Atascadero State Hospital violated several of their constitutional rights. 400 F.3d at 983. The 6 defendants filed a motion to dismiss based largely on qualified immunity. Id. The Ninth Circuit 7 recognized that the Fourth Amendment’s proscription against unreasonable searches and seizures 8 “certainly extends to SVPs.” 500 F.3d at 993. The Hydrick court held that, while “the safety and

9 security of guards and others in the facility, order within the facility, and the efficiency of the

10 facility’s operations” are concerns in the civil detention context, “qualified immunity does not

11 protect a search or seizure that is arbitrary, retaliatory, or clearly exceeds the legitimate purpose

12 of detention.” Id. (citation omitted). Hydrick accordingly recognized that civil detainees are entitled to Fourth Amendment protection from arbitrary searches.15 13 Construing the evidence in the light most favorable to Plaintiff, there is a dispute of fact as 14 to whether the June 2018 search was arbitrary. Both parties submitted copies of AD 820, DSH- 15 Coalinga’s search policy and procedures. (ECF Nos. 65-7 at 21-30, 75 at 159-168.) AD 820 states 16 that “[s]earches may be conducted randomly which does not require specific cause, or when 17 necessary which requires showing of cause.” (ECF Nos. 65-7 at 21, 75 at 159.) Random searches 18 of patients’ living areas are conducted a minimum of once weekly as a part of each unit or area 19 routine, and living areas may be searched more than once weekly. (ECF Nos. 65-7 at 23, 75 at 20 161.) These random searches do not require specific cause. (Id.) Additionally, searching a specific 21 patient’s personal storage area is permitted when there is reason to believe that contraband is 22

23 15 The Ninth Circuit also recognized that civil detainees are entitled to Fourth Amendment protection from arbitrary searches in an unpublished opinion, Meyers v. Pope, 303 Fed.Appx.513, 516 (9th Cir. 2008). In Meyers, the plaintiff 24 was confined as a civil detainee pursuant to California’s Sexually Violent Predator Act. 202 Fed. Appx. at 515. The district court granted summary judgment in favor of the defendants on the plaintiff’s Fourth Amendment claim and 25 the Ninth Circuit vacated the order and remanded for further proceedings. Id. Citing to Hydrick, the Meyers court recognized that a search in the civil detention context violates the Fourth Amendment if it is “arbitrary, retaliatory, or 26 clearly exceeds the legitimate purpose of detention.” Id. at 516. There, the plaintiff was forced to strip while his cell was searched and, on one occasion, forced to undergo a strip search which involved a visual cavity search. Id. 27 Therefore, the district court erred in entering judgment for defendants on the plaintiff’s claim that the defendants violated his Fourth Amendment right to be free from unreasonable searches and seizures. Id. 28 19 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 20 of 35

1 present or a condition exists that poses a threat to the safety and/or security of the hospital,

2 patients, and employees. (ECF Nos. 65-7 at 24, 75 at 162.) A patient representative may be

3 present during either type of search, provided no safety or security concern exists or arises. (Id.)

4 Patients are not allowed to be intrusive during the search and non-compliant patients are to be

5 removed from the area for safety. (Id.) Both parties also submit copies of the Coalinga State Police Department Report for the 6 June 2018 search. (ECF Nos. 65-5 at 71-79, 75 at 401-409.) According to this report, the Pruno 7 Interdiction Team (“PIT”) entered Plaintiff’s dorm at approximately 6:53 AM “to conduct a 8 search for cause[.]” (ECF Nos. 65-5 at 76, 75 at 406.) However, Defendant Corona told Plaintiff 9 “a random search” was going to be conducted in his living area. (Id.) The room was cleared at 10 approximately 6:55 AM. (Id.) At approximately 7:00 AM, a sergeant found a gallon of patient 11 manufactured alcohol, known as pruno, in the sports room while searching general areas. (Id.) At 12 approximately 7:02 AM, officers began to search Plaintiff’s living area again. (Id.) During this 13 search, officers located and removed various items, including the Samsung television, khaki 14 duffel bag, ribbon shirt, deer skin trousers, black duffel bag, and spiritual blanket. (ECF Nos. 65-5 15 at 76-77, 75 at 406-07.) 16 The parties do not appear to dispute that non-random searches are supposed to be 17 supported by cause. However, there is a dispute of fact regarding whether the June 2018 search 18 was a random search or a non-random search for cause. The Coalinga State Police Department 19 report describes the search as a search for cause, but also indicates that Defendant Corona told 20 Plaintiff that it was a random search. The report says that Plaintiff’s room was cleared at 6:55 AM

21 and was searched again at 7:02 AM, at which point Plaintiff’s property was seized as contraband.

22 The parties do not submit any arguments or evidence as to whether this second entry was random

23 and without cause or suspicion-based, or whether these two entries were part of a single, continuous search. 24 Defendants Corona and Lopez have failed to show as a matter of law that Plaintiff did not 25 have any reasonable expectation of privacy in his living area. Construing the evidence in a light 26 most favorable to Plaintiff, the Court finds that there is a dispute of fact as to whether the June 27 2018 search was arbitrary. Accordingly, the Court does not recommend granting summary 28 20 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 21 of 35

1 judgment in favor of Defendants Corona and Lopez on Plaintiff’s Fourth Amendment claims

2 regarding the June 2018 search.

3 3. Post-Deprivation Remedy

4 Defendants argue that Plaintiff cannot state a cognizable claim for relief based on the

5 continued deprivation of the batteries because California law provides Plaintiff with a post- deprivation remedy. (ECF No. 65-2 at 30.) Defendants cite to Hudson v. Palmer, 468 U.S. 517 6 (1984) and Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) in support of this argument. 7 (Id.) However, these cases apply to constitutional claims for deprivation of due process. See 8 Hudson, 468 U.S. at 533 n. 14 (holding that an intentional destruction did not violate the 9 Fourteenth Amendment because the state provided an adequate post-deprivation remedy); 10 Barnett, 31 F.3d at 816-17 (rejecting a due process claim where the state had an adequate post- 11 deprivation remedy); Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001) (“[I]n 12 certain circumstances, a state can cure what would otherwise be an unconstitutional deprivation 13 of ‘life, liberty or property’ by providing adequate postdeprivation remedies.”). As explained in 14 the Court’s screening order, Plaintiffs’ Fourteenth Amendment due process claims were not 15 cognizable and did not proceed. (See ECF No. 19.) Defendants have not provided any authority 16 indicating that the reasoning of Hudson and Barnett applies to Fourth Amendment claims, i.e. that 17 Defendants may conduct an unreasonable search and seizure so long as there is a post-deprivation 18 process to obtain the seized property. Accordingly, the Court recommends denying summary 19 judgment on this basis. 20 4. Mailing Out Items

21 Defendants Corona and Lopez argue that Plaintiff was not deprived of his property

22 because he was permitted to mail the ribbon shirt, deer skin trousers, khaki duffel bag, black

23 duffel bag, and spiritual blanket to an individual outside of DSH-Coalinga for safekeeping. (ECF No. 65-2 at 30-31.) Plaintiff argues that the items were not contraband and should be returned to 24 him. (ECF No. 75 at 363.) 25 Defendants cite various cases indicating that prison inmates do not have a right to possess 26 contraband items that are prohibited by prison property policies. See Velasquez v. Ahlin, 2018 WL 27 1959541, at *8 (E.D. Cal. Apr. 25, 2018). However, as discussed above, Defendants have not 28 21 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 22 of 35

1 established that the khaki duffel bag, black duffel bag, spiritual blanket, or batteries were

2 contraband.16 Accordingly, the Court finds that Defendants are not entitled to summary judgment

3 on this basis.

4 5. Qualified Immunity

5 Defendants Corona and Lopez argue that they are entitled to qualified immunity on Plaintiff’s Fourth Amendment claims. (ECF No. 65-2 at 30, 33.) Plaintiff argues that Defendants 6 Corona and Lopez are not entitled to qualified immunity because they knowingly violated 7 Plaintiff’s constitutional rights as well as DSH-Coalinga’s internal policies. (ECF No. 75 at 331.) 8 Further, Plaintiff is suing Defendants Corona and Lopez in both their individual and official 9 capacities and requesting injunctive relief, and qualified immunity does not protect a defendant 10 from being sued in an official capacity for injunctive or declaratory relief. (Id. at 335.) 11 “The doctrine of qualified immunity protects government officials 'from liability for civil 12 damages insofar as their conduct does not violate clearly established statutory or constitutional 13 rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 14 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances 15 two important interests –– the need to hold public officials accountable when they exercise power 16 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 17 perform their duties reasonably.” Id. “The protection of qualified immunity applies regardless of 18 whether the government official's error is 'a mistake of law, a mistake of fact, or a mistake based 19 on mixed questions of law and fact.'” Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567, (2004) 20 (Kennedy, J., dissenting)).

21 In determining whether an officer is entitled to qualified immunity, the Court must decide

22 (1) whether facts alleged or shown by plaintiff make out a violation of constitutional right; and

23 (2) whether that right was clearly established at the time of the officer's alleged misconduct. Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). In resolving these 24 issues, the Court must view the evidence in the light most favorable to plaintiff and resolve all 25

26 16 As to the ribbon shirt and deer skin trousers, the Court has previously recommended that Defendants Corona and 27 Lopez be granted partial summary judgment on Plaintiff’s Fourth Amendment seizure claim pertaining to these items and therefore declines to further address Defendants’ argument. 28 22 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 23 of 35

1 material factual disputes in favor of plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir.

2 2003).

3 Citing to Jessop v. City of Fresno,17 Defendants Corona and Lopez argue that the Ninth

4 Circuit has held that an officer, whose initial seizure of property is lawful but whose continued

5 detention or theft of that property is unlawful, is entitled to qualified immunity. (ECF No. 65-2 at 30.) 6 In Jessop, the defendants executed a search warrant at three of the plaintiffs’ properties 7 and gave plaintiffs an inventory sheet stating that they seized approximately $50,00 from the 8 properties, but the plaintiffs contended that the officers actually seized $151,380 in cash and 9 another $125,000 in rare coins. 936 F.3d at 939. The Ninth Circuit considered “whether the theft 10 of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates 11 the Fourth Amendment.” Id. at 941. The Jessop court found that the defendants were entitled to 12 qualified immunity because the plaintiffs failed to show that it was clearly established that this 13 conduct violated the Fourth Amendment in 2013. Id. at 942. 14 Here, however, Defendants Corona and Lopez did not seize Plaintiff’s personal property 15 pursuant to a warrant. Additionally, Defendants Corona and Lopez have not established that their 16 initial seizure of the spiritual blanket, black duffel bag, khaki duffel bag, Samsung television, and 17 batteries was lawful. As discussed above, there is a dispute of fact regarding whether these items 18 are contraband. 19 Defendants Corona and Lopez also note that “[s]ome district courts have determined, in 20 unpublished opinions” that civil detainees do not have a reasonable expectation of privacy in their

21 rooms and therefore it was unclear what the Constitution required. (ECF No. 65-2 at 33.)

22 Defendants do not cite to any such opinion. (See id.)

23 As noted above, the Ninth Circuit has articulated that civil detainees are entitled to a Fourth Amendment protection from “unreasonable” search and seizure, meaning that a search is 24 constitutional provided that it is not arbitrary, retaliatory, and is not well outside the realm of the 25 “legitimate purpose of detention.” Hydrick, 500 F.3d at 933; see also Meyers, 303 Fed.Appx. at 26 27 17 Defendants’ briefing cites to Jessop v. City of Fresno, 917 F.3d 1031 (9th Cir. 2019). (ECF No. 65-2 at 30.) 28 However, this opinion was withdrawn and superseded by Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019). 23 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 24 of 35

1 516; Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 967 (9th Cir. 2010) (“To determine

2 whether a right was clearly established, a court turns to Supreme Court and Ninth Circuit law

3 existing at the time of the alleged act.”). Hydrick was decided in 2007, and gave fair warning that

4 searches of civil detainees’ living areas violated the Fourth Amendment to the extent they are

5 arbitrary, retaliatory, or exceed the legitimate purpose of detention. As such, this right was clearly established in 2018 when the search at issue occurred. See Johnson v. Knapp, 2009 WL 764521, 6 at *5 (C.D. Cal. Mar. 16, 2009) (finding that a civil detainee’s right to be secure against 7 unreasonable searches and seizures was clearly established). Defendants Corona and Lopez do 8 not address Hydrick. 9 Further, Plaintiff is seeking injunctive relief against Defendants Corona and Lopez and 10 qualified immunity does not bar injunctive relief. Am. Fire, Theft & Collision Managers, Inc. v. 11 Gillespie, 932 F.2d 816, 818 (9th Cir. 1991); Presbyterian Church (U.S.A.) v. United States, 870 12 F.2d 518, 527 (9th Cir. 1989) (“Qualified immunity is an affirmative defense to damage liability; 13 it does not bar actions for declaratory or injunctive relief.”); Malik v. Brown, 16 F.3d 330, 335 n.4 14 (9th Cir. 1994) (“Claims for injunctive and declaratory relief are unaffected by qualified 15 immunity.”). Defendants Corona and Lopez do not address Plaintiff’s claims for injunctive relief 16 in their briefing. 17 Accordingly, Defendants Corona and Lopez have not established that they are entitled to 18 qualified immunity for the June 2018 search. 19 b. First Amendment Claim 20 i. Legal Standards

21 “The First Amendment, applicable to the States by reason of the Fourteenth Amendment .

22 . . prohibits government from making a law ‘prohibiting the free exercise (of religion).’” Cruz v.

23 Beto, 405 U.S. 319, 322 (1972) (per curiam) (citation omitted). Civil detainees retain the protections afforded by the First Amendment, including the right to freely practice their religion. 24 See O'Lone v. Estate of Shabazz, 482 U.S. 347, 348 (1987); see also Youngberg v. Romeo, 457 25 U.S. 307, 322 (1982). In order establish a cause of action under the Free Exercise Clause, a 26 plaintiff must show that a restriction substantially burdened the practice of his religion by 27 preventing him from engaging in conduct that he sincerely believes is consistent with his faith 28 24 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 25 of 35

1 without any justification reasonably related to interests concerning the care of committed 2 persons. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 3 732, 737 (9th Cir. 1997), overruled in part by Shakur, 514 F.3d at 884-85. 4 “‘When a prison regulation impinges on inmates' constitutional rights, the regulation is 5 valid if it is reasonably related to legitimate penological interests.’ ” Shakur, 514 F.3d at 884 6 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). In Turner, the Supreme Court articulated four 7 factors to consider in determining whether a prison regulation is valid: (1) whether there is a 8 “valid, rational connection between the prison regulation and the legitimate governmental interest

9 put forward to justify it”; (2) whether there are “alternative means of exercising the right that

10 remain open to prison inmates”; (3) whether “accommodation of the asserted constitutional right”

11 will “impact ... guards and other inmates, and on the allocation of prison resources generally”;

12 and (4) whether there is an “absence of ready alternatives” versus the “existence of obvious, easy alternatives.” Shakur, 514 F.3d at 882 (citing Turner, 482 U.S. at 89-90). 13 ii. June 2018 seizure 14 Plaintiff’s claim for violation of his First Amendment right to freely exercise his religion 15 proceeds against Defendants Corona and Lopez and arises out of the June 2018 seizure of 16 Plaintiff’s ceremonial ribbon shirt, ceremonial deer skin trousers, spiritual blanket, and black 17 duffel bag holding the spiritual blanket. (ECF No. 19.) 18 Defendants Corona and Lopez move for summary judgment on the grounds that Plaintiff 19 cannot establish that these items were mandated by his faith and the denial of these items did not 20 place a substantial burden on Plaintiff’s religious practice. (ECF No. 65-2 at 24-27.) Defendants 21 Corona and Lopez also argue that they are entitled to qualified immunity on Plaintiff’s First 22 Amendment claims. (Id. at 32-33.) Plaintiff, in turn, argues that the disputed items are mandated 23 by his faith and denial of those items placed a substantial burden on his faith. (ECF No. 75 at 336- 24 39.) Further, Defendants Corona and Lopez are not entitled to qualified immunity because they 25 violated DSH-Coalinga policies and because Plaintiff seeks injunctive relief. (Id. at 330-36.) 26 For the following reasons, the Court will recommend that Defendants Corona and Lopez 27 be granted summary judgment on Plaintiff’s First Amendment claims for the seizure of the

28 spiritual blanket. The Court will also recommend that summary judgment be granted as to 25 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 26 of 35

1 damages for the seizure of the ribbon shirt and deer skin trousers but denied to the extent Plaintiff

2 seeks injunctive relief. Finally, the Court will recommend that summary judgment be denied as to

3 Plaintiff’s First Amendment claim for seizure of the black duffel bag.

4 iii. Sincere belief consistent with Plaintiff’s faith

5 Defendants argue that Plaintiff must first show that the seized items were “mandated” by his faith. (See ECF No. 65-2 at 24.) However, Defendants misstate the applicable requirement for 6 establishing a Free Exercise Clause claim. As the Ninth Circuit has explained, the relevant 7 inquiry is not whether the belief or practice is a requirement or central tenet to the plaintiff’s 8 religious doctrine. Shakur, 514 F.3d at 884-85. Instead, the Court looks to whether the plaintiff 9 sincerely believes that the belief or practice is consistent with his faith. Id. 10 Plaintiff’s sworn declaration submitted in support of his opposition states that he is a 11 Native American of the Eastern Bank Tribe of Cherokees and wore his ribbon shirt and deer skin 12 trousers during religious ceremonies. (ECF No. 75 at 5-6.) Plaintiff also submitted a copy of a 13 notice to staff that sacred spiritual items were kept in Plaintiff’s living area, and the list of sacred 14 and blessed items18 includes the spiritual blanket and black duffel bag.19 (Id. at 150-51.) In his 15 opposition, Plaintiff explains that he uses his spiritual blanket to perform dry sweat ceremonies. 16 (Id. at 309.) Construing the evidence in the light most favorable to Plaintiff, a reasonable jury 17 could find that Plaintiff sincerely believed that the ribbon shirt, deer skin trousers, spiritual 18 blanket, and black duffel bag were consistent with his Native American faith. See Consol. Elec. 19 Co. v. U.S. for Use & Benefit of Gough Indus., Inc., 355 F.2d 437, 438 (9th Cir. 1966) (“When an 20 issue requires determination of state of mind, it is unusual that disposition may be made by

21 summary judgment.”).

22 iv. Burden on the practice of Plaintiff’s religion

23 Defendants argue that, under the Turner factors, denial of the ribbon shirt, deer skin

24 18 The list of sacred items does not include the ribbon shirt or deer skin trousers. 25 19 As noted above, the Court’s screening order found that Plaintiff sufficiently stated a claim against Defendants 26 Corona and Lopez for violation of Plaintiff’s First Amendment right to freely exercise religion based on the seizure of “Plaintiff’s spiritual property of a ceremonial ribbon shirt, ceremonial deer skin trousers, a spiritual blanket, and 27 the black duffel bag that holds the spiritual blanket.” (ECF No. 19 at 17.) However, Defendants do not mention the black duffel bag when arguing that Plaintiff cannot establish that the seized items were mandated by his faith. (See 28 ECF No. 62 at 24.) 26 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 27 of 35

1 trousers, spiritual blanket, and black duffel bag did not substantially burden the practice of

2 Plaintiff’s Native American faith. (ECF No. 65-2 at 24-27.) Plaintiff, in turn, argues that he had

3 permission from his treatment team to possess the ribbon shirt and deer skin trousers, the spiritual

4 blanket was won in a prior appeal, and the black duffel bag was used to transport the spiritual

5 blanket and was not contraband. (ECF No. 75 at 243, 345, 354, 357.) Having these items, confiscated, destroyed, and mishandled has caused Plaintiff extreme stress. (Id. at 339.) 6 Additionally, Plaintiff is unable to participate in his services and ceremonies given the COVID-19 7 pandemic. (Id.) The only thing Plaintiff can do is use his spiritual blanket to dry sweat for 8 cleansing and to be in tune with the spirits when he is feeling ill or out of tune with the spirits and 9 nature. (Id.) 10 As noted above, the four Turner factors are to be balanced when determining whether a 11 regulation that impinges on a civil detainee’s First Amendment rights is reasonably related to 12 legitimate penological interests and therefore valid. Defendants argue that the Turner factors 13 apply because the ribbon shirt, deer skin trousers, duffel bag, and spiritual blanket were not 14 permitted under DSH-Coalinga’s policies governing religious/spiritual items. (ECF No. 65-2 at 15 24.) See, e.g., Herrick v. Strong, 745 Fed.Appx. 287, 288-89 (9th Cir. 2018) (finding that the 16 district court appropriately applied Turner in granting summary judgment to civil detainee’s First 17 Amendment claims regarding personal mail); Kindred v. Allenby, 2019 WL 4013463, at *2-3 18 (E.D. Cal. Aug. 26, 2019) (applying Turner factors on summary judgment to civil detainee’s First 19 Amendment free exercise claim arising out of denial of materials pursuant to institutional 20 policies); Younger v. County of San Bernadino, 2018 WL 3219654, at *11-12 (C.D. Cal. Jan. 30,

21 2018) (applying Turner factors on summary judgment to pretrial detainee’s First Amendment free

22 exercise claim).

23 The first Turner factor requires a determination of whether there is a legitimate penological interest that is rationally related to the regulation at issue. There is no genuine dispute 24 that AD 642 permits DSH-Coalinga to restrict religious/spiritual items in light of the safety or 25 security needs of the hospital or potential as contraband.20 (UMF No. 34, ECF Nos. 65-3 at 5, 75 26 27 Plaintiff states that he disputes this fact because “this allegation needs to be proven. Not just alleged . . .” (ECF No. 20

75 at 355.) However, both parties submit copies of AD 640, governing hospital religious practices. (See Price Decl., 28 Ex. 4, ECF No. 65-7 at 7-12; see also ECF No. 75 at 144-49.) Under AD 640, “[f]reedom of religious belief and 27 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 28 of 35

1 at 355.) Defendants Corona and Lopez argue that non-state issued clothing such as the ribbon

2 shirt and deer skin trousers poses a security risk, including escape, and a large comforter cannot

3 be properly laundered or stored, which creates health and safety risks. (ECF No. 65-2 at 24-25.)

4 Plaintiff does not dispute whether DSH-Coalinga’s interests are legitimate, but argues that his

5 treatment team approved his possession of the ribbon shirt and deer skin trousers and he won the right to have the spiritual blanket in a prior appeal. (ECF No. 75 at 243, 345, 354, 357.) As 6 discussed above, the documents Plaintiff relies on for this purported permission do not support 7 Plaintiff’s statement. Plaintiff also does not submit any evidence in support of his contention that 8 he had permission to have the spiritual blanket due to a prior appeal. 9 The Court finds that there is a rational nexus between prohibiting Plaintiff from 10 possessing his spiritual blanket and DSH-Coalinga’s legitimate health concerns. Defendants 11 submit a sworn declaration from Defendant Price stating that DSH-Coalinga lacks the laundry 12 facilities to clean large quilts or comforters and they therefore present a health concern. (UMF 13 No. 44, ECF No. 65-3 at 6; Price Decl., ECF No. 65-6 at 3.) Plaintiff does not offer any evidence 14 to rebut Defendant Price’s declaration. Further, Plaintiff states that he uses the spiritual blanket 15 for dry sweat ceremonies. (ECF No. 75 at 309, 339.) Prohibiting Plaintiff from possessing a large 16 blanket that cannot be laundered has a logical connection to furthering institutional health 17 concerns. Therefore, the first Turner factor weighs in favor of Defendants as to the spiritual 18 blanket. 19 However, Defendants do not point to any evidence regarding DHS-Coalinga’s reasons for 20 prohibiting non-state issued clothing. (See ECF No. 65-2 at 24-25.) As discussed above, it is

21 undisputed that the ribbon shirt and deer skin trousers were contraband. However, the first Turner

22 factor looks to the reasons for the policies and not whether the items were or were not prohibited

23 under those policies. Defendants Corona and Lopez must establish not just that the items were

24 practice do not extend to activities that jeopardize the security of the hospital” and “[r]eligious activities may be modified in order to reduce risk to the health or safety of staff or patients.” (ECF Nos. 65-7 at 8, 75 at 145.) Further, 25 patients are allowed to purchase religious materials/items as approved by AD 640 and 642 and with permission from their treatment team. (ECF Nos. 65-7 at 11, 75 at 148.) The parties also both submit copies of AD 642 governing 26 religious/spiritual items, which provides that the quantity and/or size of religious items may be restricted based on the safety and security needs of the hospital or potential as contraband. (Price Decl., Ex. 5, ECF No. 65-7 at 14, 75 at 27 153.) Therefore, both parties have submitted evidence that DSH-Coalinga policy expressly permits religious items to be modified in order to reduce the risk of health or safety to staff or patients. Plaintiff does not submit any evidence 28 rebutting this policy, and therefore there is no genuine dispute as to this fact. 28 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 29 of 35

1 contraband, but that there were legitimate penological interests for classifying the items as

2 contraband. Here, the Statewide Contraband List does not explain why non-state issued clothing

3 is contraband, and Defendants do not submit any sworn declarations or other evidence regarding

4 DSH-Coalinga’s reasons for prohibiting these items. Defendants also do not point to any evidence

5 or present any arguments regarding an interest in prohibiting the black duffel bag. As the parties moving for summary judgment, Defendants Corona and Lopez have the burden of production for 6 their contention that there is a legitimate state interest in prohibiting Plaintiff from possessing the 7 items that were confiscated. Defendants have not met their burden as to the ribbon shirt, deer skin 8 trousers, or black duffel bag. 9 The second Turner factor considers whether Plaintiff has a valid means of exercising his 10 constitutional rights. Defendants Corona and Lopez contend that DSH-Coalinga maintains a 11 Department of Pastoral Services, which provides authorized religious activities, patient religious 12 counseling, and management of the “all-faiths” chapels and other areas utilized or designated for 13 religious uses. (ECF No. 65-2 at 25.) Through Pastoral Services, DSH-Coalinga provides patients 14 a Native American spiritual advisor. (Id.) Plaintiff attends a Native American prayer circle with 15 20-25 other patients and has received spiritual guidance from the Native American spiritual 16 advisor provided by DSH-Coalinga. (Id.) Plaintiff wears a Native American medicine bag, which 17 contains items of religious and spiritual significance to him, and wears a beaded, bone choker 18 containing small medicine bags. (Id.) As evidence, Defendants submit a copy of AD 640, which 19 outlines the duties and functions of the Department of Pastoral Services, as well as Plaintiff’s 20 deposition testimony regarding his spiritual advisor, prayer circle, medicine bag, and bone

21 choker. (Price Decl. at Ex. 4, ECF No. 65-7 at 8-9; Day Decl. at Ex. 10, ECF No. 65-5 at 40-51.)

22 Plaintiff does not dispute that he has sought spiritual guidance from a spiritual advisor

23 provided by DSH-Coalinga, wears a medicine bag containing items of religious and spiritual significance, and wears a bone choker, although he clarifies that the bone choker is primarily for 24 ceremonies. (ECF No. 75 at 357.) However, Plaintiff argues that Pastoral Services are not 25 currently being provided, there is no spiritual leader access, and the prayer circle has not been 26 running since 2019 because of a modification of program due to the COVID-19 pandemic. (ECF 27 No. 75 at 354, 357.) 28 29 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 30 of 35

1 The second Turner factor considers whether the plaintiff “has ‘alternative means by which

2 he can practice his religion’ or is ‘denied all means of religious expression.’” Shakur, 514 F.3d at

3 886 (quoting Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993)) (finding that a civil detainee had

4 “numerous other means of practicing his religion” where he could keep a copy of the Qur’an in

5 his cell, along with a prayer rug and up to seven religious items provided they did not pose a threat to the safe, secure, and orderly operation of the institution). Plaintiff concedes that he has 6 received spiritual guidance from a spiritual advisor while a patient at DSH-Coalinga and 7 continues to be able to wear his medicine bag and bone choker. Although he argues that some 8 group religious services have not occurred since 2019 due to the COVID-19 pandemic, those 9 restrictions were implemented more than a year after the June 2018 search occurred. Plaintiff has 10 not been denied all means of religious expression even though some group services have been 11 suspended. See Chau v. Young, 2014 WL 4100635, at *5 (N.D. Cal. Aug. 20, 2014) (“The denial 12 of access to group religious services did not deprive Chau of all means of exercising his religious 13 beliefs. Chau remained able to worship alone in his cell and had access, upon request, to an 14 Islamic services to discuss spiritual matters.”). There is no genuine dispute that Plaintiff had other 15 means of practicing his religion without the use of the ribbon shirt, deer skin trousers, spiritual 16 blanket, and black duffel bag. The Court therefore finds that the second Turner factor weighs in 17 favor of Defendants. 18 The third Turner factor considers the impact accommodation would have on staff and 19 other patients, as well as the allocation of institutional resources generally. Defendants Corona 20 and Lopez argue that accommodation would have a “ripple effect,” running a secure facility “is

21 an inordinately difficult task,” and civil detainees such as Plaintiff are subject to restrictions that

22 are not excessive and have a legitimate, non-punitive governmental purpose. (ECF No. 65-2 at

23 25-26.) While the Court recognizes the substantial undertaking involved in running a secure facility, Defendants do not explain how, if at all, allowing Plaintiff to possess the ribbon shirt, 24 deer skin trousers, spiritual blanket, and black duffel bag would affect these concerns or create a 25 “ripple effect.” The Court gives deference to the institution’s assessment of the burden on 26 operations, but it cannot accept Defendants’ conclusion that accommodation would be disruptive 27 without specific support for that argument. See Shakur, 514 F.3d at 887 (finding that the third 28 30 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 31 of 35

1 Turner factor did not weigh in defendants favor where there were no detailed findings in the

2 record to support defendants’ assertions).

3 Defendants Corona and Lopez also argue that all of the seized items were contraband and

4 DSH-Coalinga has a reasonable interest in restricting Plaintiff’s access to certain property that

5 may become a health risk or cause a security risk. As discussed above, Defendants have only established that the spiritual blanket may create a health risk and that the ribbon shirt and deer 6 skin trousers were contraband. (See ECF No. 65-2 at 26.) Further, the third Turner factor looks to 7 the impact on staff, other patients, and hospital resources, not on the reasonableness of DSH- 8 Coalinga’s interests or whether possession of the items violated internal policies. Thus, the Court 9 finds that the third Turner factor does not weigh in Defendants’ favor. 10 Finally, as to the fourth Turner factor, the Court considers whether there are obvious, easy 11 alternatives indicating that the institution’s response is exaggerated. Defendants argue that 12 Plaintiff cannot produce evidence disproving the validity of DSH-Coalinga’s interests in health, 13 safety, and security concerns underlying their contraband lists and Administrative Directives. 14 (ECF No. 65-2 at 26.) As discussed above, the Court has found that, under the first Turner factor, 15 there is a rational nexus between prohibiting Plaintiff from possessing his spiritual blanket and 16 DSH-Coalinga’s legitimate health concerns, but Defendants have failed to meet their burden of 17 establishing that DSH-Coalinga had a legitimate interest in prohibiting Plaintiff from possessing 18 the ribbon shirt, deer skin trousers, and black duffel bag. As to the spiritual blanket, Plaintiff’s 19 opposition does not identify what alternatives, if any, exist to prohibiting him from possessing 20 this item. (See ECF No. 75.) Here, Plaintiff has the burden of showing that there are obvious, easy

21 alternatives to DSH-Coalinga’s restrictions on what religious items he was allowed to possess.

22 O’Lone, 482 U.S. at 350; Mauro v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999). Because

23 Plaintiff has not met this burden and has not identified any obvious, easy alternatives, the fourth Turner factor weighs in favor of Defendants. 24 Accordingly, construing the evidence in the light most favorable to Plaintiff, the Court 25 finds that the first, second, and fourth Turner factors weigh in favor of Defendants Corona and 26 Lopez as to the spiritual blanket. However, the Court cannot find that the Turner factors weigh in 27 Defendants’ favor with respect to the remaining items. Thus, the Court recommends granting 28 31 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 32 of 35

1 summary judgment in favor of Defendants Corona and Lopez on Plaintiff’s First Amendment

2 claim arising out of the seizure of the spiritual blanket.

3 v. Qualified Immunity

4 Defendants Corona and Lopez argue that they are entitled to qualified immunity on

5 Plaintiff’s First Amendment claims because DSH-Coalinga policies define contraband and what religious/spiritual items are permitted. DSH-Coalinga staff are legally prohibited from 6 “knowingly and willfully” violating hospital rules and regulations, and Defendants could not 7 reasonably have recognized that adherence to these policies would violate Plaintiff’s 8 constitutional rights. (ECF No. 65-2 at 32.) According to Defendants Corona and Lopez, “[t]he 9 contours of the First Amendment are uncertain as there is no right to possess non-state issued 10 clothing or to possess a large comforter that is not sacred or religious at a civil detention facility.” 11 (ECF No. 65-2.) Plaintiff, in turn, argues that Defendants are not entitled to qualified immunity 12 because they violated hospital policies as well as the constitution, and Plaintiff is seeking 13 injunctive relief against Defendants Corona and Lopez in their official capacity. (ECF No. 75 at 14 330-36.) 15 Because there is a dispute of fact whether, under the Turner factors, seizure of the ribbon 16 shirt, deer skin trousers, and black duffel bag21 violated a Plaintiff’s First Amendment rights as 17 discussed above, the Court turns to the second prong of the qualified immunity analysis, i.e. 18 whether the constitutional right was clearly established at the time of the June 2018 search. 19 The Supreme Court has recognized that prisoners “retain protections afforded by the First 20 Amendment,” including the free exercise of religion, O’Lone, 482 U.S. at 348, and civil detainees

21 are entitled to more considerate treatment and conditions of confinement than prisoners,

22 Youngberg, 457 U.S. at 322. These principles were clearly established prior to the June 2018

23 search. However, the Court has not located, and Plaintiff has not identified, any controlling law in place in June 2018 that held that seizure of a civil detainee’s religious property that is contraband 24 under institutional policies constituted a violation of the Free Exercise Clause. 25

26 21 Because the Court has found that Defendants Corona and Lopez are entitled to summary judgment on Plaintiff’s 27 First Amendment claim regarding the seizure of the spiritual blanket, it declines to consider whether Defendants are entitled to qualified immunity as to this item. 28 32 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 33 of 35

1 As to the ribbon shirt and deer skin trousers, there is no genuine dispute of fact that these

2 items were contraband when seized and Plaintiff has not submitted any evidence that he had

3 special permission to have these items. Plaintiff also does not argue or submit any evidence

4 establishing that he specifically informed Defendants Corona and Lopez of these items’ religious

5 significance. Additionally, the ribbon shirt and deer skin trousers are not identified as spiritual items on the notice that was posted on Plaintiff’s door. (See ECF No. 75 at 150-52.) Even 6 assuming Defendants Corona and Lopez knew the ribbon shirt and deer skin trousers were Native 7 American items when they confiscated them, “there is no law indicating that knowledge that 8 personal property may have religious significance precludes a correctional officer from 9 confiscating property if the property is contraband under general prison regulations, the prisoner 10 had not obtained special permission to possess the property, and the prisoner had not informed the 11 officer of the precise religious significance of the property.” Abel v. Martel, 2013 WL 552416, at 12 *5 (E.D. Cal. Feb. 13, 2013).22 Any liability that Defendants Corona and Lopez may have for 13 confiscating Plaintiff’s ribbon shirt and deer skin trousers would not be based on a clearly 14 established constitutional right because it would not have been clear to a reasonable staff member 15 that a violation of Plaintiff’s First Amendment rights was occurring when these items were 16 seized. 17 However, Plaintiff is seeking injunctive relief against Defendants Corona and Lopez in 18 their official capacity and, as noted above, qualified immunity does not apply to injunctive relief. 19 Defendants Corona and Lopez do not address Plaintiff’s claims for injunctive relief in their 20 motion. (See ECF No. 65.) Accordingly, the Court finds that Defendants Corona and Lopez are

21 not entitled to qualified immunity to the extent Plaintiff seeks injunctive relief for his Free

22 Exercise Clause claim arising out of the seizure of his ribbon shirt and deer skin trousers.

23 Therefore, the Court will recommend that summary judgment be granted only as to Plaintiff’s First Amendment claim for damages for seizure of the ribbon shirt and deer skin trousers. 24

25 22 Enforcing a prison rule or regulation would not always provide a basis for qualified immunity. Abel, 2013 WL 552416, at *5 n.8. If a reasonable staff member would know that the regulation enforced violated clearly established 26 federal law, enforcement could still subject the officer to liability. See, e.g., California Att'ys for Crim. Just. v. Butts, 195 F.3d 1039, 1048 (9th Cir. 1999), as amended on denial of reh'g and reh'g en banc (Jan. 8, 2000), and abrogated 27 by Chavez v. Martinez, 538 U.S. 760 (2003) (holding that reliance on training materials was not a basis for granting qualified immunity when materials conflicted with the commands of Miranda). 28 33 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 34 of 35

1 Finally, as discussed further above, Defendants have failed to establish as a matter of law

2 that DSH-Coalinga’s contraband policies prohibited Plaintiff from possessing the black duffel

3 bag. AD 640 and 642, which govern religious practices and religious/spiritual items at DSH-

4 Coalinga, also do not specifically prohibit duffel bags. See (Price Decl., Exhs. 4-5, ECF No. 65-7

5 at 7-19; ECF No. 75 at 144-49, 153-58.) Plaintiff has also submitted a copy of the notice posted on his door at the time of the June 2018 search, signed by Plaintiff and the Unit Supervisor, 6 listing the black duffel bag as a spiritual item. (ECF No. 75 at 150-52.) There is thus a dispute of 7 fact regarding whether the black duffel bag was prohibited under DSH-Coalinga policies. If 8 Plaintiff's evidence is construed in his favor, as it must be for purposes of summary judgment, a 9 reasonable fact-finder could find that Defendants Corona and Lopez could not have reasonably 10 believed that confiscating Plaintiff’s black duffel bag was lawful. The Court therefore finds that 11 Defendants Corona and Lopez are not entitled to qualified immunity for Plaintiff’s Free Exercise 12 Clause claim regarding the black duffel bag. 13 VI. CONCLUSION AND RECOMMENDATIONS 14 Accordingly, for the reasons discussed above, IT IS HEREBY RECOMMENDED23 that: 15 1. Defendants’ motion for summary judgment (ECF No. 65) be granted in part and 16 denied in part; 17 2. Summary judgment be granted in favor of Defendants on the following: 18 a. Plaintiff’s Fourth Amendment claim against Defendant Price for the January 2018 19 search; 20 b. Plaintiff’s Fourth Amendment claim against Defendants Corona and Lopez for the

21 June 2018 seizure of the ribbon shirt and deer skin trousers;

22 23 Federal Rule of Civil Procedure 54(b) provides that “[w]hen an action presents more than one claim for relief ... or 23 multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court determines that there is no just reason for delay.” This determination “left to the 24 sound judicial discretion of the district court” but such discretion should be exercised “in the interest of sound judicial administration” and in light of the “historic federal policy against piecemeal appeals.” Id. In determining 25 whether to direct entry of a final judgment as to fewer than all parties, courts should consider “whether the certified order is sufficiently divisible from the other claims such that the case would not inevitably come back to this court on 26 the same set of facts.” Jewel v. Nat'l Sec. Agency, 810 F.3d 622, 628 (9th Cir. 2015) (internal citations omitted). Here, Defendants do not request entry of a separate final judgment. Additionally, the claims that remain are based on 27 the same set of facts as those for which summary judgment is granted. A final judgment would not be divisible from the other claims in the case, would lead to piecemeal judgments, and any appeal of a later judgment would involve 28 the same set of facts. Therefore, the Court does not recommend entry of a separate final judgment at this time. 34 Case 1:18-cv-00554-DAD-EPG Document 80 Filed 06/15/21 Page 35 of 35

1 c. Plaintiff’s First Amendment claim against Defendants Corona and Lopez for

2 seizure of the spiritual blanket;

3 d. Plaintiff’s First Amendment claim against Defendants Corona and Lopez for

4 damages from the seizure of the ribbon shirt and deer skin trousers;

5 3. Summary judgment be denied as to the following: a. Plaintiff’s Fourth Amendment claim against Defendants Corona and Lopez for the 6 June 2018 search; 7 b. Plaintiff’s Fourth Amendment claims against Defendants Corona and Lopez for 8 the June 2018 seizure of Plaintiff’s black duffel bag, khaki duffel bag, spiritual 9 blanket, and batteries; 10 c. Plaintiff’s First Amendment claim against Defendants Corona and Lopez for 11 seizure of the black duffel bag; and 12 d. Plaintiff’s First Amendment claim against Defendants Corona and Lopez for 13 injunctive relief arising out of the seizure of the ribbon shirt and deer skin trousers. 14 These findings and recommendations are submitted to the United States district judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 16 (21) days after being served with these findings and recommendations, any party may file written 17 objections with the court. Such a document should be captioned “Objections to Magistrate 18 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 19 within fourteen (14) days after service of the objections. The parties are advised that failure to 20 file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 22 (9th Cir. 1991)). 23 IT IS SO ORDERED.

24 Dated: June 14, 2021 /s/ 25 UNITED STATES MAGISTRATE JUDGE 26 27

28 35