STANLEY A. BOONE, Magistrate Judge.
Plaintiff Sam Consiglio, Jr. is a civil detainee proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court are Defendants' motions to dismiss. (ECF No. 16, 26.)
This case proceeds against Defendants Edmund Brown, Governor of the State of California, Pamela Ahlin, Director of the California Department of State Hospitals, and Brandon Price, Executive Director of the Department of State Hospitals-Coalinga ("CSH"), in their official capacities.
Plaintiff is a civil detainee at CSH. Plaintiff asserts a claim that a ban on certain electronic devices at CSH pursuant to 9 C.C.R. § 891 ("Section 891") (which prohibits non-LPS patients, such as sexually violent predators, from having any access to the internet) and 9 C.C.R. § 4350 ("Section 4350") (which prohibits all patients in the custody of state hospitals from possessing any electronic devices with wireless capabilities, including but not limited to cell phones, computers, PDAs, electronic gaming devices, and graphing calculators with internet capabilities), amounts to punishment in violation of the Fourteenth Amendment.
The Court issued findings and recommendations that this case proceed on the above-described claim on May 1, 2017, (ECF No. 10), which were adopted on June 28, 2017, (ECF No. 12.) Service of process was initiated on June 29, 2017. (ECF No. 13.)
On October 2, 2017, Defendants Brown and Ahlin filed a motion to dismiss the claim against them. (ECF No. 16.) Plaintiff filed an opposition on October 26, 2017. (ECF No. 18.) On November 9, 2018, Defendants Brown and Ahlin filed a reply to the opposition, on extension. (ECF No. 20.)
On December 19, 2017, Defendant Price, having recently been substituted as a defendant in this action, filed a motion to dismiss. (ECF No. 26.) Plaintiff filed an opposition on March 23, 2018, following several extensions of time. (ECF No. 43.) On April 3, 2018, Defendant Price filed a reply to the opposition, on extension. (ECF No. 46.)
Defendants' motions to dismiss are now deemed submitted. Local Rule 250(l).
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face.
Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor.
As noted above, Plaintiff is a civil detainee and patient at CSH. He is being held as a Sexually Violent Predator ("SVP") according to California's Sexually Violent Predator Act. Cal. Welf. & Instit. Code §§ 6600 et seq.
Under Section 891, non-LPS patients, such as SVPs, are prohibited from having any access to the internet. Under Section 4350, all patients in the custody of state hospitals are prohibited from possessing any electronic devices with wireless capabilities, including but not limited to cell phones, computers, PDAs, electronic gaming devices, and graphing calculators with internet capabilities.
According to Plaintiff, the internet is a patchwork of information from sources, most of them being purveyors of information and other lawful products offered in interstate, and even, worldwide commerce. Through the above-described ban, Plaintiff is prevented from seeking out available expert witnesses and other defense experts whose expertise is defending those accused of being SVPs. Plaintiff is prevented from seeking out available attorneys whose expertise is defending those who are accused of being SVPs. That access to information is unreasonably restricted at CSH, because telephone books and newspapers are prohibited, and fees must be paid for other information. Collect telephone calls are only available at exorbitant rates, and AT&T no longer will make collect calls. Plaintiff, as a person without funds, is blocked from receiving legal services and advice without payment in advance.
Prior to 2009, previous Executive Directors permitted patients to possess and own personal computers, but prohibited hardware, accessories, software, or other media that allowed communication with other individuals by computer or electronic devices via any form of wired or wireless capability. The patients' personal computers that were permitted prior to October 2009 had to be modified to eliminate any capability of communication with other individuals by computer or electronic device via any form of wired or wireless capability.
In October 2009, Section 4350 was enacted, which banned patient use of personal computers and electronic devices with wireless capabilities, and effectively declared items already in patients' possession to be contraband. Section 4350 is unnecessary, arbitrary, and oppressive because civil detainees at CSH could own personal computers with restricted access prior to October 2009.
Defendants argue that Plaintiff's complaint should be dismissed because it is barred by the applicable two-year statute of limitations. Further, Defendant Brown argues that Plaintiff has failed to state a cognizable claim against him. Finally, Defendants assert that these defects are not curable, and therefore no leave to amend should be granted.
Plaintiff argues that his claim is not time-barred, based on the time when he discovered his claim, equitable tolling, and the continuing tort doctrine. Plaintiff also argues that recent amendments to the regulations constitute a continuing violation of his constitutional rights.
In reply, Defendants argue that no equitable tolling applies here. Further, they argue that the continuing violation exception or continuing tort doctrine does not apply to this case. Finally, Defendants argue that the recent amendments Plaintiff cites have mooted this action.
The Court first addresses the issue of whether this action is now moot due to a change in the law. "Mootness is the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)."
"A statutory change . . . is usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed. As a general rule, if a challenged law is repealed or expires, the case becomes moot."
In this case, Plaintiff challenges Section 891 and Section 4350 as they were promulgated in October 2009, banning SVPs from having any access to the internet, and from possessing any electronic devices with wireless capabilities, including but not limited to cell phones, computers, PDAs, electronic gaming devices, and graphing calculators with internet capabilities, respectively. (Compl., ECF No. 1, at 4 ¶¶ 14-22.) In January 2018, Section 4350 was amended, and now prohibits patients, including Plaintiff, from possessing electronic devices that are capable of being connected to the internet, including computers, cell phones, personal digital assistants, graphing calculators, and radios, and electronic devices without native capabilities but that be modified for network communication. Cal. Code Regs. tit. 9, § 4350(a). Digital recording devices, voice or visual recording devices, or items with memory storage ability are also prohibited, Cal. Code Regs. tit. 9, § 4350(a) (2-4), but patients are permitted to possess some commercially produced CDs and DVDs, some media players without internet access, and may access certain digital media on a supervised basis.
This case proceeds on Plaintiff's Fourteenth Amendment claim that Sections 4350 and 891 amount to punishment, based on allegations that their combined ban on the internet and relevant devices are excessively punitive considering their intended purpose, which allegedly could be accomplished through less-restrictive means. The new, amended Section 4350, although differing in some respects from the prior regulation, still contains the same ban on devices with internet capabilities. In fact, the new ban is more restrictive than the prior ban, as it now prohibits patients from possessing additional devices, including those without native capabilities that can be modified for network communication.
The law here is substantially similar enough to the previous version of Section 4350 that Plaintiff's challenge to the law in this action is not moot. "
Finding that this case is not moot, the Court next turns to the parties' arguments regarding the applicable statute of limitations.
Defendants argue that a two-year statute of limitations applies in this case, which began to run when Plaintiff's residence at CSH began on November 29, 2012, as he knew or should have known that the challenged regulations did not permit the personal computer he seeks. Because Plaintiff's complaint was filed on August 26, 2016, more than a year after the expiration of the two-year statute of limitations period, Defendants argue that this action should be dismissed as untimely.
Federal law determines when a claim accrues, and "[u]nder federal law, a claim accrues when the plaintiff knows or should know of the injury that is the basis of the cause of action."
Here, the parties dispute when Plaintiff's claim began to accrue. Defendants argue that it began to accrue when Plaintiff arrived at CSH, since he either knew or should have known at that time that the device he sought was barred by the challenged regulations. Plaintiff disputes this, arguing that his claim began to accrue only when he sought to have a computer shipped to him, and in fact learned of the restrictions on the device. Plaintiff has also submitted a declaration that although he was committed to CSH on November 29, 2012, he did not actually arrive at the hospital until December 12, 2012. (Pl.'s Decl., Doc. 43, at 8 ¶ 1.)
Federal law determines when a civil rights claim accrues in federal court.
In actions where the federal court borrows the state statute of limitations, courts should also borrow all applicable provisions for tolling the limitations period found in state law, except to the extent that they are inconsistent with federal law.
By its terms, Section 352.1 does not apply to civil detainees.
"Under California law, a plaintiff must meet three conditions to equitably toll a statute of limitations: `(1) defendant must have had timely notice of the claim; (2) defendant must not be prejudiced by being required to defend the otherwise barred claim; and (3) plaintiff's conduct must have been reasonable and in good faith.'"
California law makes equitable tolling automatic where exhaustion of an administrative remedy is mandatory prior to filing suit, and allows equitable tolling in certain circumstances of the voluntary pursuit of an alternative remedy.
"Because the applicability of the equitable tolling doctrine often depends on matters outside the pleadings, it is not generally amenable to resolution on a Rule 12(b)(6) motion."
The Court finds that it cannot determine from the face of the complaint that Plaintiff is barred by the statute of limitations. Plaintiff is a civil detainee who is proceeding pro se in this action, and has made some allegations that affect the issue of equitable tolling. Further, it appears Plaintiff has been continuously confined either in prison or in state mental health facilities, including CSH, for some years. Therefore, under
Next, Defendant Brown moves to dismiss the claim against him under the Eleventh Amendment, and because there are no allegations of his personal involvement in violating Plaintiff's constitutional rights.
"The Eleventh Amendment erects a general bar against federal lawsuits brought against a state."
The Supreme Court held in
For the
Here, Plaintiff's claim against Governor Brown is based on generalized allegations that he, along with the other defendants, "have promulgated and enforced" the regulations which violate his constitutional rights. (Compl. ¶¶ 23-35.) Plaintiff also generally argues in his opposition that Governor Brown is "a responsible party" for the regulations that have wronged him, without indicating any specific involvement by the Governor. (Pl.'s Opp'n, ECF No. 18, at 1.) Defendants further argue that the Court should take notice of the statutory scheme here, which vests only the State Department of State Hospitals ("DSH") with the authority to promulgate and enforce the regulations which are the subject to this suit. Under the California Welfare and Institutions Code, "all of the institutions under the jurisdiction of the [DSH] shall be governed by uniform rule and regulation of the [DSH]. . . ." Cal. Welf. & Inst. Code § 4101. DSH is further given general control over the "property and concerns of each state hospital," including the authority to establish bylaws, rules, and regulations deemed necessary, and to carry such regulations into effect.
Based on the foregoing, Governor Brown is not directly connected with the promulgation or enforcement of the regulations at issue in this case. "Thus, the Governor's general duty to enforce California law under the circumstances of this case does not establish the requisite connection between him and the unconstitutional acts alleged by" Plaintiff.
For the reasons explained above, it is HEREBY RECOMMENDED that:
1. Defendants Ahlin and Brown's motion to dismiss, filed on October 2, 2017 (ECF No. 16), be granted in part, as discussed above;
2. Governor Brown be dismissed from this action because the claim against him is barred by the Eleventh Amendment; and
3. Defendant Price's motion to dismiss, filed on December 19, 2017 (ECF No. 26), be denied, in its entirety.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within