(PC) Redding v. Clandenin

Opinion

1 2 3 4 5 6 7

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 BILLY REDDING, Case No. 1:22-cv-01234-JLT-EPG (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND 13 RECOMMENDATIONS DATED JULY 26, v. 14 2023 STEPHANIE CLANDENIN, et al., 15 (ECF NO. 9) Defendants.

16 FINDINGS AND RECOMMENDATIONS, 17 RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF’S 18 FOURTEENTH AMENDMENT CONDITIONS OF CONFINEMENT CLAIM 19 AGAINST DEFENDANTS CLANDENIN 20 AND PRICE, AND THAT ALL OTHER CLAIMS BE DISMISSED 21 (ECF No. 7) 22

23 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 24 Billy Redding (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis 25 in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff is detained under the 26 Sexually Violent Predatory Act (“SVPA”). Plaintiff filed the complaint commencing this 27 action on September 28, 2022. (ECF No. 1). 28 On February 2, 2023, the Court screened Plaintiff’s complaint. (ECF No. 6). The Court 1 gave Plaintiff thirty days to either: “a. File a First Amended Complaint; b. Notify the Court in 2 writing that he does not want to file an amended complaint and instead wants to proceed only 3 on his Fourteenth Amendment conditions of confinement claim against defendants Clandenin 4 and Price; or c. Notify the Court in writing that he wants to stand on his complaint.” (Id. at 13). 5 On February 27, 2023, Plaintiff filed a First Amended Complaint (ECF No. 7). After 6 reviewing the First Amended Complaint, this Court issued Findings and Recommendations 7 recommending that this action proceed on Plaintiff's Fourteenth Amendment conditions of 8 confinement claim against Defendants Clandenin and Price, and that all other claims be 9 dismissed. (ECF No. 9) 10 On August 9, 2023, Plaintiff filed objections to those Findings and Recommendations, 11 arguing that this Court had failed to correctly construe his First Amended Complaint. 12 Specifically, Plaintiff explained that he was not seeking “conditional release,” which is a 13 process provided under the Welfare and Institutions Code that requires a Court order. Instead, 14 he was claiming that Defendant Clandenin was violating his Fourteenth Amendment Due 15 Process rights by not granting him “day passes,” which would allow him temporary leave from 16 his facility. (ECF No. 10). In order to address those objections and ensure that Plaintiff’s 17 claims are correctly described and analyzed under applicable law, the hereby vacates its 18 previous Findings and Recommendations and issues the following revised Findings and 19 Recommendations. 20 In Plaintiff’s First Amended Complaint, Plaintiff alleges that officials at Coalinga State 21 Hospital (CSH) have deemed Plaintiff suitable for advancement to “Module 4: Conditional 22 Release through the Liberty Conditional Release Program.” Plaintiff alleges that Defendant 23 Clandenin has the authority to alter the Sex Offender Treatment Program (“SOTP”) and thus 24 alter the manner within which all treatment is administers. Specifically, Defendant Clandenin 25 is capable of creating policies that would ensure that patients receive “Day Passes,” that would 26 permit them to engage with the community and practice the principles they have learned as 27 patients. Defendant Clandenin’s failure to create such policies, or implement any form of “Day 28 Pass” program for SVPA patients, results in Plaintiff being denied treatment that provides him 1 with a realistic opportunity to be cured and released from civil commitment. Plaintiff also 2 alleges that Defendants Clandenin and Price have implemented highly restrictive conditions on 3 Plaintiff that are identical to those imposed on prisoners, such as prohibitions on the use of 4 cellphones and personal computers, which are not appropriate given Plaintiff’s level of 5 rehabilitation and are, thus, punitive in violation of the Fourteenth Amendment’s protections 6 for civil detainees. 7 For the reasons described below, the Court will recommend that this action proceed on 8 Plaintiff’s Fourteenth Amendment conditions of confinement claim against Defendants 9 Clandenin and Price. The Court will also recommend that all other claims be dismissed. 10 Plaintiff has twenty-one days from the date of service of these findings and 11 recommendations to file his objections. 12 I. SCREENING REQUIREMENT 13 As Plaintiff is proceeding in forma pauperis (ECF No. 4), the Court screens the 14 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, 15 that may have been paid, the court shall dismiss the case at any time if the court determines that 16 the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 17 1915(e)(2)(B)(ii). 18 A complaint is required to contain “a short and plain statement of the claim showing 19 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 20 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 23 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 24 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 25 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 26 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 27 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 28 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 1 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 2 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 3 pro se complaints should continue to be liberally construed after Iqbal). 4 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 5 Plaintiff alleges as follows in his complaint: 6 The incidents occurred at Department of State Hospitals, Coalinga (“DSH Coalinga”). 7 As defendants, Plaintiff names Stephanie Clandenin, the Director of the Department of State 8 Hospitals, and Brandon Price, the Executive Director of DSH Coalinga. Both defendants are 9 sued in their official capacity only. 10 Plaintiff has been a Department of State Hospitals (“DSH”) civil detainee since 11 approximately May 14, 2002. Plaintiff was ordered civilly detained, and later civilly 12 committed, pursuant to California’s Sexually Violent Predator Act (“SVPA”). Subsequently, 13 Plaintiff was ordered to remain civilly detained by the DSH for two purposes: (1) protection of 14 the public; and (2) treatment the state deemed was required to ensure he was rehabilitated such 15 that he will no longer be a danger to the public. 16 On or about June 18, 2006, Plaintiff began the DSH’s “Sex Offender Treatment 17 Program” (“SOTP”). 18 In order for a civilly committed SVPA detainee to reach SOTP Module 4, the DSH 19 Coalinga Medical Director, the DSH Coalinga Chief of Psychology, the Director of the SOTP 20 (i.e., the most senior treatment supervisors within the facility), and a representative of the 21 DSH’s Conditional Release Program (“CONREP”) are required to conduct a thorough 22 assessment of the detainee. Said assessment includes, but is not limited to, reviewing the 23 SVPA detainee’s mental health charts, consulting with his treatment providers, reviewing his 24 treatment work, and interviewing said detainee. For the SVPA detainee to successfully be 25 advanced to SOTP Module 4, these supervisors must unanimously deem the SVPA detainee 26 suitable for “community reintegration.” 27 On or about September 23, 2020, the DSH Coalinga Medical Director, the DSH 28 Coalinga Chief of Psychology, the Director of the SOTP, and a representative of the DSH’s 1 CONREP unanimously deemed Plaintiff to be suitable for advancement to “Module 4: 2 Conditional Release through the Liberty Conditional Release Program (CONREP)” of the 3 DSH’s SOTP. 4 Defendants are legally responsible, in whole or in part, for the operation of DSH 5 Coalinga and for the health and safety of the persons residing in said facility. 6 DSH Coalinga provides care and mental health treatment to psychiatric patients 7 committed civilly, or civilly detained, pursuant to the SVPA. 8 Defendants are obligated to operate DSH Coalinga in a manner that does not infringe 9 upon the federal rights, as protected by the Fourteenth Amendment to the Constitution of the 10 United States, of individuals confined to DSH Coalinga. 11 Defendant Clandenin, as the most senior supervisor, administrator, and policymaker 12 within the DSH, endorsed the DSH’s SVPA treatment program entitled SOTP. The SOTP is 13 described in detail within a document entitled “Sex Offender Treatment Program (SOTP) 14 Program Description,” which was last revised in 2016. This document outlines the rationale of 15 the SOTP, and the manner within which the SOTP is to be administered by DSH facilities, 16 including DSH Coalinga. 17 Defendant Clandenin has the authority to alter the manner within which all treatment 18 within DSH facilities is administered, including the SOTP. 19 The “Sex Offender Treatment Program (SOTP) Program Description” notes the 20 treatment program “incorporates components of the Self-Regulation/Better Life (SR/BL) 21 models and complies with Risk-Need-Responsivity (RNR) principles. These models are 22 integrated into a combined approach to strengthen an individual’s self-regulation skills and to 23 prepare him for a better life free of sexual offending. The fundamental goal of the program is 24 for the individual to acquire pro-social skills and to prevent recurrence of sexual offending.” 25 The “Sex Offender Treatment Program (SOTP) Program Description” notes the that the 26 Risk-Needs-Responsibility principles involve three components: (1) the risk principle; (2) the 27 need principle; and (3) the responsibility principle. 28 Defendant Clandenin placed Dr. Deidre D’Orazio in the position of DSH SVPA 1 Conditional Release Program Liaison Supervisor. Dr. D’Orazio has attended forums at DSH 2 Coalinga, which Plaintiff assisted in administering through his involvement with DSH 3 Coalinga’s “Patients Collaborative Leadership Skills” (“PCLS”) group. At said forums, Dr. 4 D’Orazio noted that once DSH’s SVPA patients reach SOTP Module 4, their treatment needs 5 require them to practice their skills within the community under the supervision of DSH 6 clinicians to ensure that the skills they have learned from SOTP Modules 1 to 3 have been 7 successfully internalized and to ensure said patients address any issues that could only become 8 apparent to said DSH clinicians through in-community practice of said skills. 9 Consistent with Defendant Clandenin’s Risk-Needs-Responsivity principles, the Sex 10 Offender Treatment Program (SOTP) Program Description,” and Dr. D’Orazio’s statements, 11 the SOTP is designed in a manner wherein as SVPA DSH patients progress through the 12 treatment program, they will have learned skills needed to address their “Dynamic Risk 13 Factors,” where ultimately their treatment needs require them to practice said skills within the 14 community. Further, at the point they reach SOTP Module 4, said DSH SVPA patients’ 15 treatment needs involve DSH treatment providers addressing any issues they discover through 16 the patients’ behavior within the community. Finally, SOTP Module 4 patients require in- 17 community practice of their skills; DSH treatment providers monitoring said in-community 18 practice; and DSH treatment providers responding to any issues that arise through said in- 19 community practice towards treatment completion (i.e., DSH deeming no further treatment is 20 needed). 21 The Risk-Needs- Responsivity principles require in-community practice once the DSH 22 patient has reached SOTP Module 4 to be consistent with his individualized treatment need. 23 The risk principle is such where those supervisors (whom Defendant Clandenin has put in place 24 to administer her SVPA treatment program) have deemed that DSH patients who have reached 25 SOTP Module 4 can be safely treated within the community. The needs principle is only 26 satisfied if SOTP Module 4 patients are given the opportunity to practice their skills within the 27 community. The responsivity principle is only satisfied if DSH treatment providers are given 28 the opportunity to monitor how detainees are managing their “Dynamic Risk Factors” within 1 the community, gauge whether there is any further fine tuning that is required, and respond 2 accordingly by providing individualized treatment to address those identified issues. 3 Defendant Clandenin and Dr. D’Orazio have outlined the fact that the DSH’s SVPA 4 treatment program requires patients to complete this portion of the SOTP, which requires in- 5 community practice, so that they can show their treatment providers they have successfully 6 internalized the skills needed to be unconditionally discharged from SVPA civil commitment. 7 Absent in-community practice, patients do not have a reasonable opportunity to be deemed 8 “cured” so that they can be released completely from SVPA civil commitment. 9 In-community engagement of civilly committed mental health patients has been used by 10 the state via “Day Passes.” 11 Defendant Clandenin is capable of creating policies that ensure that SVPA DSH SOTP 12 Module 4 inpatients are provided with “Day Passes” that would permit carefully controlled in- 13 community engagement. Once patients have successfully demonstrated treatment completion, 14 treatment supervisors could recommend the unconditional discharge of that patient from SVPA 15 civil commitment. However, Defendant Clandenin has not created these policies. This failure 16 results in Plaintiff being denied treatment that provides him with a realistic opportunity to be 17 “cured” and released from his civil commitment. 18 Defendant Clandenin is aware, or should be aware, that in order to satisfy the 19 Fourteenth Amendment, she is required to create policies that ensure that Plaintiff is provided 20 with appropriate individualized treatment that affords him with a realistic opportunity to be 21 cured and released from his civil commitment. 22 Defendant Clandenin failed to create policies that require Plaintiff to be provided with 23 individualized and appropriate treatment. This failure prevents Plaintiff from meeting the 24 statutory criteria for release from SPVA civil commitment. Additionally, this failure results in 25 the nature and duration of Plaintiff’s continued confinement not bearing a reasonable relation to 26 one of the two purposes for which Plaintiff was committed, namely being provided with 27 appropriate mental health treatment. 28 Defendants Clandenin and Price have deemed that DSH Coalinga’s restrictive 1 conditions of confinement are required to manage those SVPA detainees who, unlike Plaintiff, 2 have not been rehabilitated sufficiently to have completed the inpatient SVPA treatment 3 program. Such restrictive conditions include, but are not limited to: detainees being prohibited 4 from possessing cellphones, which is a restriction that is identical to that experienced by 5 California Department of Corrections and Rehabilitation (“CDCR”) prisoners; detainees being 6 prohibited from possessing personal computers, which is a restriction that is identical to that 7 experienced by CDCR prisoners; detainees being prohibited from having any access to the 8 internet, which is a restriction that is more restrictive than that experienced by CDCR prisoners 9 and California’s federal prisoners who are permitted limited internet access; detainees being 10 prohibited from possessing any devices capable of accessing the internet, which is a restriction 11 that is more restrictive than that experienced by CDCR prisoners who are permitted tablets that 12 have internet access; detainees being prohibited from having “Day Passes” wherein they are 13 able to leave the DSH facility grounds, either with or without supervision, during the day, 14 which is a restriction that is identical to that experienced by CDCR prisoners; detainees being 15 prohibited from possessing their own vitamins and medication, which is a restriction that is 16 more restrictive than that experienced by CDCR prisoners, who are permitted to purchase 17 vitamins and to have “keep on person” medications; detainees being prohibited from having 18 privacy, a restriction that is identical to that experienced by CDCR prisoners; detainees being 19 prohibited from having adequate access to law library material, which is a restriction that is 20 identical to that experienced by CDCR prisoners and more restrictive than that experienced by 21 California’s federal prisoners; and detainees being prohibited from having a personal television 22 with either cable or satellite television access, a restriction that is more restrictive than that 23 experienced by CDCR prisoners. 24 Defendants are aware, or should be aware, that the Fourteenth Amendment prohibits 25 Plaintiff from being subjected to punishment while in their custody. 26 Defendants are aware, or should be aware, that even if the highly restrictive conditions 27 described by Plaintiff may have been rational prior to Plaintiff having been deemed by DSH to 28 be rehabilitated, none of those highly restrictive conditions are currently appropriate for 1 Plaintiff now that he has reached SOTP Module 4. Defendants play a significant role in 2 administering the DSH SOTP. Specifically, Defendants are aware, or should be aware, that 3 none of the restrictive conditions exist, and are thus deemed necessary, within DSH’s SVPA 4 conditional release program administered by Defendant Clandenin. Defendants are aware, or 5 should be aware, that not one SVPA detainee who has ever been released into the SVPA 6 CONREP outpatient treatment program has ever been convicted of a sexually violent offense 7 subsequent to being released into the program. 8 Defendants are aware, or should be aware, that transitional housing within the secure 9 boundaries of the DSH, with conditions that mirror those afforded to SVPA DSH outpatients 10 and thus include none of the prison-like conditions described by Plaintiff, would be a 11 reasonable and less harsh method of confining Plaintiff while he awaits court-ordered release. 12 The state provides DSH with over $240,000 per year for the care of Plaintiff, and for a small 13 fraction of funds the DSH could: provide a small inexpensive mobile home on DSH property 14 for Plaintiff to live in; install a GPS ankle bracelet on Plaintiff; have Plaintiff’s ankle bracelet 15 monitored; have DSH psychiatric technicians communicate with Plaintiff’s employers and 16 otherwise supervise Plaintiff during his Day Passes; have cable or satellite television installed 17 for Plaintiff’s use; provide Plaintiff with access to the DSH’s internet provider; provide 18 Plaintiff with home appliances; and otherwise provide for Plaintiff to live a normal life with the 19 exception of his residing on DSH grounds, and subject to conditions of supervision that are not 20 excessively restrictive. 21 In his first claim, Plaintiff alleges that Defendant Clandenin’s failure to provide 22 adequate treatment violates the Due Process Clause of the Fourteenth Amendment. In his 23 second claim Plaintiff alleges that Defendants’ failure to provide non-punitive housing 24 arrangements violates the Due Process Clause of the Fourteenth Amendment. 25 III. ANALYSIS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 26 A. Section 1983 27 The Civil Rights Act under which this action was filed provides: 28 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 1 to be subjected, any citizen of the United States or other person within the 2 jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an 3 action at law, suit in equity, or other proper proceeding for redress.... 4 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 5 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 6 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 7 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 8 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 9 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 10 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 11 under color of state law, and (2) the defendant deprived him of rights secured by the 12 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 13 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 14 “under color of state law”). A person deprives another of a constitutional right, “within the 15 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 16 omits to perform an act which he is legally required to do that causes the deprivation of which 17 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 18 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 19 causal connection may be established when an official sets in motion a ‘series of acts by others 20 which the actor knows or reasonably should know would cause others to inflict’ constitutional 21 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 22 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 23 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 24 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 25 A plaintiff must demonstrate that each named defendant personally participated in the 26 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 27 connection or link between the actions of the defendants and the deprivation alleged to have 28 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 1 658, 691, 695 (1978). 2 Supervisory personnel are not liable under section 1983 for the actions of their 3 employees under a theory of respondeat superior and, therefore, when a named defendant 4 holds a supervisory position, the causal link between the supervisory defendant and the claimed 5 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 6 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 7 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 8 a plaintiff must allege some facts that would support a claim that the supervisory defendants 9 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 10 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 11 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 12 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 13 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 14 quotation marks omitted). 15 For instance, a supervisor may be liable for his or her “own culpable action or inaction 16 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 17 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 18 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 19 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 20 “A plaintiff seeking injunctive relief against the State is not required to allege a named 21 official’s personal involvement in the acts or omissions constituting the alleged constitutional 22 violation. Rather, a plaintiff need only identify the law or policy challenged as a constitutional 23 violation and name the official within the entity who can appropriately respond to injunctive 24 relief.” Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) 25 (citation omitted). 26 B. Claim 1 – Fourteenth Amendment Medical Care 27 “Involuntarily committed patients in state mental health hospitals have a Fourteenth 28 Amendment due process right to be provided safe conditions by the hospital administrators.... 1 [W]hether a hospital administrator has violated a patient’s constitutional rights is determined by 2 whether the administrator’s conduct diverges from that of a reasonable professional. In other 3 words, a decision, if made by a professional, is presumptively valid; liability may be imposed 4 only when the decision by the professional is such a substantial departure from accepted 5 professional judgment, practice, or standards as to demonstrate that the person responsible 6 actually did not base the decision on such a judgment. This standard has been referred to as the 7 Youngberg professional judgment standard. The Youngberg standard differs from the 8 deliberate indifference standard used in Eighth Amendment cruel and unusual punishment 9 cases, in that [p]ersons who have been involuntarily committed are entitled to more considerate 10 treatment and conditions of confinement than criminals whose conditions of confinement are 11 designed to punish.” Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016) (alterations in 12 original) (citations and internal quotation marks omitted). “[C]ourts must restrict their inquiry 13 to two questions: (1) whether the decisionmaker is a qualified professional entitled to 14 deference, and (2) whether the decision reflects a conscious indifference amounting to gross 15 negligence, so as to demonstrate that the decision was not based upon professional judgment.” 16 Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). 17 Additionally, “the Fourteenth Amendment Due Process Clause requires states to 18 provide civilly-committed persons with access to mental health treatment that gives them a 19 realistic opportunity to be cured and released.” Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 20 2000). 21 Plaintiff alleges that on or about September 23, 2020, the DSH Coalinga Medical 22 Director, the DSH Coalinga Chief of Psychology, the Director of the SOTP, and a 23 representative of the DSH’s CONREP unanimously deemed Plaintiff to be suitable for 24 advancement to “Module 4: Conditional Release through the Liberty Conditional Release 25 Program (CONREP) of the DSH’s SOTP.” Additionally, Dr. Deidre D’Orazio, the DSH SVPA 26 Conditional Release Program Liaison Supervisor, has stated that once DSH’s SVPA patients 27 reach SOTP Module 4, their treatment needs require them to practice their skills within the 28 community under the supervision of DSH clinicians to ensure that the skills they have learned 1 from SOTP Modules 1 to 3 have been successfully internalized and to ensure said patients 2 address any issues that could only become apparent to said DSH clinicians through in- 3 community practice of said skills. 4 Plaintiff further alleges that Defendant Clandenin is capable of creating policies that 5 ensure that SVPA DSH SOTP Module 4 inpatients are provided with “Day Passes” that would 6 permit carefully controlled in-community engagement. Once patients have successfully 7 demonstrated treatment completion, treatment supervisors could recommend the unconditional 8 discharge of that patient from SVPA civil commitment. However, Defendant Clandenin has 9 not created these policies. This failure results in Plaintiff being denied treatment that provides 10 him with a realistic opportunity to be “cured” and released from his civil commitment. 11 The Court finds that Plaintiff fails to state a claim based on failure to provide adequate 12 medical care. 13 As Plaintiff describes in his First Amended Complaint, and confirmed in his Objections 14 to the Court’s initial Findings and Recommendations, there is a legal process in place to obtain 15 Community Integration, which requires a state court order approving conditional release. 16 According to the Sex Offender Treatment Program Description attached to Plaintiff’s 17 complaint, “[i]f the individual has met all of the criteria, the panel will recommend the patient 18 for Community Reintegration.” (ECF No. 7, pgs. 36-37). Such conditional release must be 19 ordered by the state court. (ECF No. 7, p. 37) (“CONREP is responsible for supervising and 20 treating conditionally released SVP patients court-ordered into the community…. 21 Conditionally released SVP patients must comply with court-ordered terms and conditions.”). 22 Additionally, California Welfare and Institutions Code § 6608 states that a petition for 23 conditional release is to be brought before a court. Cal. Welf. & Inst. Code § 6608(a) (“A 24 person who has been committed as a sexually violent predator shall be permitted to petition the 25 court for conditional release with or without the recommendation or concurrence of the 26 Director of State Hospitals.”). See also Cal. Welf. & Inst. Code § 6604.9(d) (“If the [] 27 Department of State Hospitals determines that … conditional release to a less restrictive 28 alternative is in the best interest of the person and conditions can be imposed that adequately 1 protect the community, the director shall authorize the person to petition the court for 2 conditional release to a less restrictive alternative or for an unconditional discharge. The 3 petition shall be filed with the court and served upon the prosecuting agency responsible for the 4 initial commitment.”). However, Plaintiff asserts that a Superior Court ordered that he be 5 civilly committed and detained. 6 In Plaintiff’s Objections to the Court’s initial Findings and Recommendations, Plaintiff 7 clarified that “no where in the facts supporting Claim 1 does it indicate that Plaintiff alleges 8 Defendant Clandenin was violating his Fourteenth Amendment Due Process right to adequate 9 treatment by failing to have Plaintiff conditionally released from civil commitment. Rather, 10 Plaintiff alleges Defendant Clandenin was violating his Fourteenth Amendment Due Process 11 right to adequate treatment by (among other contentions) failing to use the ability, that said 12 Defendant possess, to afford Plaintiff with ‘Day Passes.”” (ECF No. 10, at p. 2) (emphasis in 13 original). He further explained that “’Day passes’ refers to temporary leave from a facility.’” 14 (ECF No. 10, at p. 3) (emphasis in original). Plaintiff claims that DSH would not need a court 15 order to administer day passes because the patients would not be discharged from the facility— 16 they would just be allowed to leave the facility temporarily. 17 The Court finds that Plaintiff has failed to state a constitutional claim based on 18 Defendants’ failure to implement policies permitting Plaintiff to leave the facility through “Day 19 Passes.” Day Passes, as explained by Plaintiff, are in fact a release from custody, albeit on a 20 temporary basis. Indeed, Plaintiff’s complaint describes them as being “similar to how both 21 high risk California sex offenders have been supervised on parole, and SVPA outpatients are 22 supervised.” (ECF No. 7, at p. 7). But Plaintiff is not entitled to release from detention as a 23 form of “treatment,” even on a temporary basis. While the due process clause “requires states 24 to provide civilly-committed persons with access to mental health treatment that gives them a 25 realistic opportunity to be cured and released,” Sharp, 233 F.3d at 1172 (citing Ohlinger, 652 26 F.2d at 778), it does not require release itself as a method of treatment. 27 Moreover, a claim for release, even temporary release, challenges Plaintiff’s continued 28 confinement and thus must be brought through a petition for writ of habeas corpus, assuming 1 that other requirements are met. “[A] prisoner in state custody cannot use a § 1983 action to 2 challenge the fact or duration of his confinement. He must seek federal habeas corpus relief (or 3 appropriate state relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citations and 4 internal quotation marks omitted). Accordingly, “a state prisoner’s § 1983 action is barred 5 (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter 6 the target of the prisoner’s suit (state conduct leading to conviction or internal prison 7 proceedings)—if success in that action would necessarily demonstrate the invalidity of 8 confinement or its duration.” Wilkinson, 544 U.S. at 81-82. This rule applies to civil detainees 9 who are challenging their civil commitment. Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139- 10 40 (9th Cir. 2005). While phrased as seeking treatment, the only treatment Plaintiff seeks 11 involves being released (at least on occasion) so that he can practice his skills “in-community.” 12 Such a claim challenges the constitutionality of his confinement itself. 13 Here, Plaintiff has been detained by court order. His request for “day passes,” amounts 14 to a challenge to that confinement and cannot be brought in a section 1983 claim. 15 C. Claim 2 - Fourteenth Amendment Conditions of Confinement 16 “[A]n individual detained under civil process—like an individual accused but not 17 convicted of a crime—cannot be subjected to conditions that amount to punishment. Following 18 Bell, we have recognized that punitive conditions may be shown (1) where the challenged 19 restrictions are expressly intended to punish, or (2) where the challenged restrictions serve an 20 alternative, non-punitive purpose but are nonetheless excessive in relation to the alternative 21 purpose, or are employed to achieve objectives that could be accomplished in so many 22 alternative and less harsh methods. Legitimate, non-punitive government interests include 23 ensuring a detainee’s presence at trial, maintaining jail security, and effective management of a 24 detention facility.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (citations and internal 25 quotation marks omitted). 26 Plaintiff alleges that he has completed the inpatient SVPA treatment program, and has 27 reached Module 4 of the SOTP, the Conditional Release through the Liberty Conditional 28 Release Program. However, Plaintiff is still being subjected to the same conditions as 1 detainees who have not been deemed suitable for the Conditional Release Program, and many 2 of these conditions are as restrictive, or more restrictive, than the conditions faced by prisoners. 3 As Plaintiff has been deemed by DSH to be rehabilitated, Defendants are (or should be) aware 4 that the highly restrictive conditions Plaintiff is subjected to are not necessary. 5 Liberally construing Plaintiff’s complaint, and as this case is at the screening stage, the 6 Court finds that Plaintiff’s Fourteenth Amendment conditions of confinement claim against 7 Defendants Clandenin and Price should proceed past screening.1 8 IV. CONCLUSION, RECOMMENDATIONS, AND ORDER 9 The Court has screened the First Amended Complaint and finds that this action should 10 proceed on Plaintiff’s Fourteenth Amendment conditions of confinement claim against 11 Defendants Clandenin and Price. The Court also finds that all other claims should be 12 dismissed. 13 The Court will not recommend that further leave to amend be granted. In the Court’s 14 prior screening order, the Court identified the deficiencies in Plaintiff’s complaint, provided 15 Plaintiff with relevant legal standards, and provided Plaintiff with an opportunity to amend his 16 complaint. Plaintiff filed his First Amended Complaint with the benefit of the Court’s 17 screening order, but failed to cure the deficiencies identified by the Court. Thus, it appears that 18 further leave to amend would be futile. 19 Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that: 20 1. This case proceed on Plaintiff’s Fourteenth Amendment conditions of 21 confinement claim against Defendants Clandenin and Price; and 22 2. All other claims be dismissed for failure to state a claim. 23 These findings and recommendations will be submitted to the United States district 24 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 25 twenty-one (21) days after being served with these findings and recommendations, Plaintiff 26

27 1 While the Court has found that this claim should proceed past screening, the Court is not making a 28 determination that Plaintiff will prevail on this claim or what relief would be available to Plaintiff should he prevail. The Court is also not precluding Defendants from filing a motion to dismiss. 1 || may file written objections with the Court. The document should be captioned “Objections to 2 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 4 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 5 || (9th Cir. 1991)). 6 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 7 || judge to this case. 8 9 IT IS SO ORDERED. 10 | Dated: _ October 10, 2023 [Je heey — 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17