(PC) Williams v. Price

Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 1 of 34 — 1 — — 2 — — 3 — — 4 — — 5 — — 6 — UNITED STATES DISTRICT COURT — 7 — EASTERN DISTRICT OF CALIFORNIA — 8 — 9 COREY WILLIAMS, Case No. 1:18-cv-00102-NONE-SAB (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING 11 v. DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND 12 BRANDON PRICE, et al., DISMISSING THIRD AMENDED COMPLAINT WITHOUT LEAVE TO 13 Defendants. AMEND 14 (ECF Nos. 62, 70, 72) 15 OBJECTIONS DUE WITHIN THIRTY DAYS — 16 — 17 Corey Williams (“Plaintiff”), a civil detainee, is appearing pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983 . Currently before the court is Brandon Price 19 and Pam Ahlin’s (“Defendants”) motion for judgment on the pleadings, filed on February 21, 20 2020. Also before the Court is Plaintiff’s third amended complaint which was filed in this action 21 after it was consolidated with a related case, Williams v. Price (“Williams III), No. 1:20-cv22 00312-JLT. 23 The matter was referred to the United States magistrate judge pursuant to 28 U.S.C. § 24 636(b)(1)(B) and Local Rule 302. Having considered the moving, opposition, and reply papers, 25 as well as the Court’s file, the Court issues the following findings and recommendations. 26 I. 27 RELEVANT BACKGROUND 28 Plaintiff is a civil detainee at Coalinga State Hospital (“CSH”) facing commitment as a — 1 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 2 of 34 1 sexually violent predator (“SVP”) under California’s Sexually Violent Predator Act (“SVPA”), 2 California Welfare and Institutions Code, section 6600 et seq. (See Sec. Am. Compl. (“SAC”) 1,1 3 ECF No. 31.) In 2003, the Department of State Hospitals (“DSH”) enacted section 891 of title 9 of 4 the California Code of Regulations. (See SAC, Exh. 1.) Section 891 states, “Non-LPS patients 5 shall not have access to the internet.” 6 On October 26, 2009, the DSH enacted section 4350 of title 9 of the California Code of 7 Regulations. (See SAC, Exh. 2.) At that time, as relevant here, Section 4350 stated: 8 Electronic devices with the capability to connect to a wired . . . and/or a wireless . . . communications network to send and/or receive information are prohibited, including 9 devices without native capabilities that can be modified for network communication. . . . Some examples of the prohibited devices include desktop computers, laptop 10 computers, cellular phones, electronic gaming devices, personal digital assistant (PDA), graphing calculators, and radios (satellite, shortwave, CB and GPS). — 11 — (See id.) — 12 — On December 22, 2017, the DSH issued a Notice of Emergency Amendments and Findings — 13 — of Emergency for section 4350. (See SAC, Exh. 3.) An additional notice was issued around January — 14 — 10, 2018. (See SAC, Exh. 4.) In relevant part, the amended section 4350 states: — 15 — (a) [P]atients are prohibited from having personal access to, possession, or on-site 16 storage of the following items: 17 (1) Electronic devices with the capability to connect to a . . . and/or a wireless . . . communications network to send and/or receive information including, but not 18 limited to, the following: 19 (A) Desktop computers; laptop computers; tablets, single-board computers or motherboards such as “Raspberry Pi;” cellular or satellite phones; personal digital 20 assistant (PDA's); graphing calculators; and satellite, shortwave, CB and GPS radios. — 21 — (B) Devices without native capabilities that can be modified for network 22 communication. The modification may or may not be supported by the product vendor and may be a hardware and/or software configuration change. — 23 — (2) Digital media recording devices, including but not limited to CD, DVD, Blu24 Ray burners. 25 (3) Voice or visual recording devices in any format. 26 (4) Items capable of patient-accessible memory storage, including but not limited — 27 — — 1 — All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 28 CM/ECF electronic court docketing system. — 2 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 3 of 34 1 to: 2 (A) Any device capable of patient-accessible digital memory or remote memory access. — 3 — (B) Recordable disks, including but not limited to CDs, DVDs, Blu-Ray, and CD4 ROM. 5 (C) Universal Serial Bus (USB) devices, also known as flash drives or thumb drives. — 6 — (D) Hard drives, subscriber identity module (SIM) cards, secure digital (SD) drives 7 or cards, micro-secure digital drives or cards (MicroSD), compact flash drives, secure digital high capacity (SDHC), secure digital extended capacity (SHXC), and 8 other similar insertable memory devices. 9 (E) Gaming devices with patient-accessible digital memory storage ability, the ability to access the internet, or the ability to play games or other media or access 10 data not specifically designed for the device, or only able to be played on that particular gaming device, as provided by an approved third-party vendor. — 11 — (F) Floppy disks, hard disks, and vertical helical scan or video home system (VHS) 12 cassettes. 13 (b) Electronic items that do not conflict with subsection (a) that patients are permitted to possess or have personal access to include: — 14 — (1) One (1) television or computer monitor; one (1) DVD, Blu-ray, or similar 15 player; one (1) CD player; and one (1) radio or music player. These items shall not have internet, external communication, or wireless communication capability. — 16 — (2) No more than thirty (30) commercially manufactured and unmodified CDs, 17 DVDs, and Blu-Rays received in factory-original packaging in a patient's room or unit storage. Patient may store additional manufactured and unmodified CDs, 18 DVDs, and Blu-Rays in off-unit storage. 19 (3) Tablets or other devices designed for confined individuals through authorized vendors of the Department of State Hospitals and California Department of 20 Corrections and Rehabilitation that do not contain personally accessible data storage. If a device designed for confined individuals is modified, either the 21 individual device or the type of device can be banned as violating subsection (a). — 22 — Cal. Code Regs. tit. 9, § 4350 . 23 Plaintiff filed this action on January 22, 2018, against Defendants Price and Ahlin alleging 24 his constitutional rights were violated by the emergency amendments to Cal. Code Regs. tit. 9, § 25 4350. (ECF No. 1.) On March 7, 2018, United States Magistrate Judge Michael J. Seng screened 26 Plaintiff’s complaint and found that it stated a substantive due process claim. (ECF No. 11.) 27 Plaintiff was ordered to either file an amended complaint or notify the Court that he wished to 28 proceed on the claims found to be cognizable in the screening order. (Id.) On April 3, 2018, — 3 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 4 of 34 1 following the retirement of Judge Seng, this matter was reassigned to the undersigned. (ECF No. 2 14.) 3 On April 5, 2018, the Court directed the Office of the Attorney General to make a special 4 appearance to address Plaintiff’s request for a preliminary injunction with a response due within 5 fourteen days. (ECF Nos. 3, 16.) After receiving an extension of time, Plaintiff filed a first 6 amended complaint on April 6, 2018. (ECF No. 17.) Plaintiff’s complaint was screened on April 7 18, 2018 and findings and recommendations were filed. (ECF No. 18.) The undersigned found 8 that Plaintiff had stated a claim against Defendants Ahlin and Price in their official capacity for a 9 condition of confinement and deprivation of property claim for implementing the amendments to 10 section 4350 and a claim that the regulation is overly broad by prohibiting devices that are not 11 capable of connecting to the internet and have no memory storage ability and recommended that all 12 remaining claims be dismissed for failure to state a claim. (Id.) 13 The Attorney General filed a response to Plaintiff’s request for a preliminary injunction on 14 April 30, 2018. (ECF No. 21.) On May 15, 2018, findings and recommendations issued 15 recommending denying Plaintiff’s request for a preliminary injunction. (ECF No. 22.) On July 19, 16 2018, Chief Judge Lawrence J. O’Neill (since retired) issued an order adopting in full the findings 17 and recommendations recommending denying Plaintiff’s request for a preliminary injunction and 18 adopting in part the screening findings and recommendations. (ECF No. 27.) The order found that 19 Plaintiff had stated a substantive due process claim against Defendants Ahlin and Price in their 20 official capacities for implementing the amendments to section 4350 and Plaintiff was ordered to 21 either file a second amended complaint or notify the court that he wished to proceed on the 22 cognizable claims and Plaintiff’s motion for a preliminary injunction was denied. (Id.) 23 After receiving an extension of time, Plaintiff filed a second amended complaint on September 24 20, 2018. (ECF No. 31.) On September 28, 2018, findings and recommendations issued. (ECF 25 No. 32.) The findings and recommendations recommended that this action proceed against 26 Defendants Ahlin and Price for substantive due process violations of the Fourteenth Amendment 27 based on the allegations that the amendment to section 4350 is punitive in nature and the regulation 28 is overly broad as it prohibits devices not capable of connecting to the internet or having memory — 4 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 5 of 34 1 storage capability; and on the procedural due process claim against Defendant Price for 2 implementing a policy more restrictive than section 4350, and that all other claims be dismissed 3 without leave to amend. (Id.) 4 On November 9, 2018, Chief Judge O’Neill adopted in part the findings and 5 recommendations. (ECF No. 35.) This action proceeded against Defendants Ahlin and Price in 6 their official capacity for implementing the amendments to section 4350 in violation of substantive 7 due process. (Id. at 3.) 8 On January 25, 2019, Defendants filed a motion to dismiss and a request for judicial notice. 9 (ECF Nos. 44, 45.) On March 14, 2019, findings and recommendations issued recommending 10 denying Defendants motion to dismiss. (ECF No. 49.) On May 8, 2019, Chief Judge O’Neill 11 adopted the findings and recommendations and Defendants’ motion to dismiss was denied. (ECF 12 No. 55.) Defendants filed an answer on May 28, 2019. (ECF No. 56.) On May 29, 2019, the 13 discovery and scheduling order issued setting pretrial deadlines. (ECF No. 57.) 14 On February 21, 2020, Defendants filed the instant motion for judgment on the pleadings 15 and a request for judicial notice. (ECF No. 62.) 16 On March 2, 2020, Plaintiff filed Williams III, No. 1:20-cv-00312-JLT against Defendants 17 Price, Ahlin, Arron Maylin, Samantha Sanchez, and Joanne Brewer based on the confiscation of 18 his property due to the amendments to section 4350. 19 On March 5, 2020, an order issued granting Defendants’ request to vacate the dispositive 20 motion deadlines in the May 29, 2019 scheduling order to be reset once the instant motion is 21 decided. (ECF Nos. 63, 64.) Plaintiff received an extension of time to file his opposition to the 22 motion for judgment on the pleadings and his opposition was due on May 30, 2020. (ECF Nos. 23 65, 66.) Plaintiff did not file an opposition. On June 9, 2020, an order issued requiring 24 Defendants to supplement the record. (ECF No. 66.) 25 On July 6, 2020, an order was entered relating Williams III with the instant action. (ECF 26 71.) Defendants filed supplemental briefing on July 9, 2020. (ECF No. 70.) On July 20, 2020, 27 an order issued consolidating this action and Williams III. (ECF No. 71.) The March 20, 2020 28 complaint from Williams III was filed in this action as a third amended complaint. (ECF No. — 5 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 6 of 34 1 72.) 2 Pursuant to Local Rule 230(l), this matter is deemed submitted on the pleadings without 3 oral argument. 4 II. 5 DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS 6 A. Legal Standard 7 “After the pleadings are closed--but early enough not to delay trial--a party may move for 8 judgment on the pleadings.” Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate 9 when the moving party clearly establishes on the face of the pleadings that no material issue of 10 fact remains to be resolved and that it is entitled to judgment as a matter of law. Hal Roach 11 Studios, Inc., v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989); Fajardo v. 12 Cty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999); accord Chavez v. United States, 683 13 F.3d 1102, 1108 (9th Cir. 2012). “A motion for judgment on the pleadings ‘challenges the legal 14 sufficiency of the opposing party’s pleadings.’ ” RLI Ins. Co. v. City of Visalia, 297 F.Supp.3d 15 1038, 1046 (E.D. Cal. 2018), aff’d, 770 F. App’x 377 (9th Cir. 2019) (quoting Morgan v. County 16 of Yolo, 436 F.Supp.2d 1152 , 1154–55 (E.D. Cal. 2006), aff’d, 277 Fed.Appx. 734 (9th Cir. 17 2008)). 18 The analysis under Rule 12(c) operates in the same manner as a motion to dismiss under 19 Rule 12(b)(6). Chavez, 683 F.3d at 1108 (“Analysis under Rule 12(c) is substantially identical 20 to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the 21 facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy”) (internal 22 quotation marks and citation omitted). “A district court will render a ‘judgment on the pleadings 23 when the moving party clearly establishes on the face of the pleadings that no material issue of 24 fact remains to be resolved and that it is entitled to judgment as a matter of law.’ ” Enron Oil 25 Trading & Transp. Co. v. Walbrook Ins. Co., 132 F.3d 526 , 529 (9th Cir. 1997) (citations 26 omitted). 27 In deciding a motion for judgment on the pleadings, the court accepts as true all allegations 28 in the complaint and treats as false those allegations in the answer that contradict the complaint. — 6 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 7 of 34 1 Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004); Hal Roach Studios, Inc., — 2 — 896 F.2d at 1550 . The court construes all material allegations in the light most favorable to the 3 non-moving party. Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1046 (9th Cir. 4 2006). Judgment on the pleadings can only be granted where the pleadings demonstrate that it 5 is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would 6 entitle him to relief.” Enron Oil Trading & Transp. Co., 132 F.3d at 529 (citations omitted). 7 Documents attached to, incorporated by reference in, or integral to the complaint may be 8 properly considered under Rule 12(c) without converting the motion into one for summary 9 judgment. Rose v. Chase Manhattan Bank USA, 396 F.Supp.2d 1116, 1119 (C.D. Cal. 2005) 10 (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). 11 However, judgment on the pleadings is improper when the district court goes beyond the 12 pleadings to resolve an issue; such a proceeding must properly be treated as a motion for 13 summary judgment. Hal Roach Studios, 896 F.2d at 1550 . In deciding a motion for judgment 14 on the pleadings, the court may consider facts that “are contained in materials of which the court 15 may take judicial notice.” Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971 , 981 n.18 (9th 16 Cir. 1999). 17 B. Request for Judicial Notice 18 Defendants request that the Court take judicial notice of sections of the California Code of 19 Federal Regulations, DSH and Office of Administrative law notices regarding the amendment 20 of section 4350, memorandums from Defendant Price and the Fresno County District Attorney’s 21 Office, and court records. Defendant has not opposed the request for judicial notice. 22 Generally, the court may not consider any material outside the pleadings in ruling on a 23 motion under Rule 12 without converting the motion to a motion for summary judgment. United 24 States v. Corinthian Colleges, 655 F.3d 984, 998 (9th Cir. 2011). There are two exceptions to 25 this rule, when the complaint necessarily relies on the documents or where the court takes judicial 26 notice of documents. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Under the 27 Federal Rules a court may take judicial notice of a fact that is “not subject to reasonable dispute 28 in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) — 7 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 8 of 34 1 capable of accurate and ready determination by resort to sources whose accuracy cannot 2 reasonably be questioned.” Fed. R. Evid. 201(b). 3 Defendants seek for the Court to take judicial notice of California regulations, certain 4 documents on the DSH website, and court records. These documents are appropriate for judicial 5 notice. Judicial notice may be taken “of court filings and other matters of public record.” Reyn’s 6 Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 , 746 n.6 (9th Cir. 2006); Lee, 250 F.3d at 689 . 7 Courts may take judicial notice of information displayed on government websites where neither 8 party disputes the accuracy of the information contained therein. Daniels –Hall v. National Educ. 9 Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010). 10 The January 12, 2018, and January 18, 2018 memorandums from Defendant Price were 11 referenced to and incorporated within Plaintiff’s complaint. (See Sec. Am. Compl. at p. 3, 15 12 ECF No. 31.) The January 16, 2018 memorandum to all patients, staff, and law enforcement 13 from the Fresno County District Attorney’s Office is self-authenticating under Rule 902(5) of 14 the Federal Rules of Evidence. Accordingly, Defendants request for judicial notice is granted. 15 C. Discussion 16 Defendants move for judgment on the pleadings on the ground of res judicata. Defendants 17 contend that Plaintiff previously litigated the issue of the confiscation of his electronic devices 18 in state court and the dismissal of the state court action should be given full faith and credit and 19 this action should be dismissed. Plaintiff has not filed an opposition to the motion. 20 1. Res Judicata Legal Standard 21 Generally, the preclusive effect of a prior judgment is referred to as res judicata. Taylor 22 v. Sturgell, 553 U.S. 880, 892 (2008); Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir. 23 1988). Res judicata includes both claim preclusion and issue preclusion. Americana Fabrics, 24 Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1529 (9th Cir. 1985); Robi, 838 F.2d at 321 . Claim 25 preclusion, which is at issue here, treats a judgment that has been previously entered as the full 26 measure of relief between the same parties on the same claim or cause of action and prevents 27 relitigation for all grounds of recovery or defenses that were previously available to the parties 28 regardless of whether they were asserted or decided in the prior proceeding. Americana Fabrics, — 8 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 9 of 34 1 Inc., 754 F.2d at 1529 ; Robi, 838 F.2d at 321-22 ; Owens v. Kaiser Found. Health Plan, Inc., 244 2 F.3d 708, 713 (9th Cir. 2001) 3 Res judicata applies where there is identity of claims, final judgment on the merits, and 4 identity or privity between the parties. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 5 2002); Owens, 244 F.3d at 713. Although res judicata is an affirmative defense, a court may 6 dismiss an action on res judicata grounds based upon the facts alleged in the complaint and any 7 facts that are properly subject to judicial notice. See Scott v. Kuhlmann, 746 F.2d 1377 , 1378 8 (9th Cir. 1984). Res judicata is properly raised in a motion for judgment on the pleadings. See, 9 e.g., Turtle Island Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 920 (9th Cir. 2012). 10 “Under the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738 , ‘a federal court must 11 give to a state-court judgment the same preclusive effect as would be given that judgment under 12 the law of the State in which the judgment was rendered.’ ” Takahashi v. Bd. of Trustees of 13 Livingston Union Sch. Dist., 783 F.2d 848 , 850 (9th Cir. 1986) (quoting Migra v. Warren City 14 Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)); see also Clark v. Yosemite Cmty. Coll. Dist., — 15 — 785 F.2d 781, 784 (9th Cir. 1986). Therefore, California law determines the preclusive effect of 16 the state court judgment. 17 Under California law, claim preclusion is the “primary aspect” of res judicata and “acts to 18 bar claims that were, or should have been, advanced in a previous suit involving the same 19 parties.” DKN Holdings LLC v. Faerber, 61 Cal.4th 813, 824 (2015). “Claim preclusion arises 20 if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a 21 final judgment on the merits in the first suit.” DKN Holdings LLC, 61 Cal.4th at 824 . “If claim 22 preclusion is established, it operates to bar relitigation of the claim altogether.” Id.; see also 23 Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788, 792 (2010) (“The doctrine of res judicata 24 prohibits a second suit between the same parties on the same cause of action.”) 25 “The party asserting preclusion bears the burden of showing with clarity and certainty what 26 was determined by the prior judgment.” Clark v. Bear Stearns & Co., 966 F.2d 1318, 1321 (9th 27 Cir. 1992). “It is not enough that the party introduce the decision of the prior court; rather, the 28 party must introduce a sufficient record of the prior proceeding to enable the trial court to — 9 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 10 of 34 1 pinpoint the exact issues previously litigated.” United States v. Lasky, 600 F.2d 765, 769 (9th 2 Cir. 1979). 3 2. Plaintiff’s March 14, 2019 State Action 4 Plaintiff filed an action, Williams v. Price, No. 19 CE CL 02848 (Fresno Cty. Sup. Ct.) 5 (here after “Williams II”), alleging loss of property in the Superior Court for the State California, 6 Fresno County, on March 14, 2019. (ECF No. 6201 at pp. 111-13.) Plaintiff alleged that he was 7 an inpatient at the Department of State Hospitals, Coalinga from 2008 to present. (Williams II 8 Compl. at ¶ 2.) Defendant Price was an individual employed at Coalinga State Hospital. (Id. at 9 ¶ 3.) 10 On January 18, 2028, Plaintiff was removed from his housing unit and placed outside while 11 unidentified officials searched and confiscated his property at the direction of Defendant Price. 12 (Id. at ¶ ¶ 5, 6.) Plaintiff’s property was confiscated due to the new revision of California Welfare 13 & Institutions Code section 4350. (Id. at ¶ 7.) When Plaintiff returned to his room, all his 14 property was gone and three property receipts were left on Plaintiff’s bed. (Id. at ¶ 8; Property 15 Receipts, (ECF No. 62-1 at 115, 116, 117.) Plaintiff filed a complaint with the Office of Risk 16 Management to attempt to get his property back that was denied on August 2, 2018. (Williams 17 II Compl. at ¶ 9.) 18 Plaintiff was seeking to recover the value of his property that was confiscated as it was 19 now deemed contraband by the newly amended state regulation. (Id. at ¶ 11.) Plaintiff alleged 20 that the property had been taken in violation of the Takings Clause of the Fifth Amendment of 21 the United States Constitution. (Id. at ¶ 13.) Plaintiff sought a declaration that Defendant Price’s 22 actions and practices were in violation of state law and the regulations, and compensatory 23 damages of $3,736.25. (Id. at ECF No. 62-1, p. 113.) 24 Defendant Price filed a demurrer on the grounds the complaint failed to state a cause of 25 action against him under the Takings Clause of the Fifth Amendment of the United States 26 Constitution; Defendant Price was not a proper defendant for the Fifth Amendment claim; the 27 complaint failed to state a cause of action under the Takings Clause of the California 28 Constitution; Plaintiff failed to comply with the limitations period of the California Code of Civil — 10 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 11 of 34 1 Procedure, section 430.10(e); and the complaint was subject to abatement pursuant to California 2 Code of Civil Procedure section 430.10(c). (Def. Price’s Demurrer to Compl. at 4-20, ECF No. 3 70-1.) Plaintiff filed an opposition to the demurrer arguing that there had been a regulatory 4 taking of his property; he had a property interest in the property; the taking was for a public 5 purpose, to combat an epidemic of child pornography; and that Defendant Price was the moving 6 force behind the amended regulation. (Pl.’s Opp. to Def.’s Demurrer, ECF No. 70-1 at 22-34.) 7 Defendant Price filed a reply contending that Plaintiff did not have a constitutionally protected 8 property interest in possessing contraband electronic devices and that his devices were properly 9 confiscated under section 4350, and that the complaint could not be amended to cure the 10 deficiencies. (Def.’s Reply to Opp. to Demurrer, ECF No. 70-1 at 38-42.) 11 On November 7, 2019, the matter came on regularly for hearing and the Court sustained 12 Defendant’s demurrer without leave to amend on all grounds stated in the demurrer. (ECF No. 13 62-1 at 127-28.) On January 31, 2020, judgment was entered dismissing the action in favor of 14 Defendant Price. (ECF No. 62-1 at 129.) The complaint was dismissed in its entirety as to 15 Defendant Price and the action was dismissed with prejudice. (Id. at 130.) 16 3. Preclusive Effect of State Court Judgment 17 In this instance, Defendants have raised claim preclusion as the ground for judgment on 18 the pleadings. California law determines the preclusive effect of the state court judgment. 19 Takahashi, 783 F.2d at 850. Under California law, “if a plaintiff prevails in an action, the cause 20 is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the 21 defendant serves as a bar to further litigation of the same cause of action.” Mycogen Corp. v. 22 Monsanto Co., 28 Cal.4th 888, 896-97 (2002). Under this res judicata doctrine, “all claims 23 based on the same cause of action must be decided in a single suit; if not brought initially, they 24 may not be raised at a later date.” Mycogen Corp., 28 Cal.4th at 897 . “Res judicata precludes 25 piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action 26 on a different legal theory or for different relief.” Id. (quoting Weikel v. TCW Realty Fund II 27 Holding Co., 55 Cal.App.4th 1234, 1245 (1997)). Therefore, under California law, claims 28 preclusion bars “(1) the same cause of action (2) between the same parties (3) after a final — 11 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 12 of 34 1 judgment on the merits in the first suit.” DKN Holdings LLC, 61 Cal.4th at 824 Mycogen Corp., — 2 — 28 Cal.4th at 897 . 3 a. Whether the cause of action involves the same primary right 4 Defendants argue that res judicata should apply because Plaintiff’s state court action 5 against Defendant Price was for the same harm arising from the same events. To determine 6 whether the two suits involve identical causes of action for the purposes of claim preclusion, 7 California applies a “primary rights theory. Boeken, 48 Cal.4th at 797 . For the purposes of 8 claim preclusion, the phrase “cause of action” has a precise meaning. Id. at 798 . “The cause of 9 action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought 10 or the legal theory (common law or statutory) advanced.” Id.; see also Hi-Desert Med. Ctr. v. 11 Douglas, 239 Cal.App.4th 717, 734 (2015), as modified (Sept. 15, 2015) (“The fact that the 12 [plaintiff] may be pursuing or adding a different remedy for the same injury does not create a 13 new primary right.”). “Even where there are multiple legal theories upon which recovery might 14 be predicated, one injury gives rise to only one claim for relief.” Boeken, 48 Cal.4th at 798 . 15 Therefore, the determinative factor under the primary rights theory is the harm suffered, and 16 where two actions involve the same parties and are seeking the same compensation for the same 17 harm, they generally involve the same primary right. Id. 18 “[T]he primary right is simply the plaintiff’s right to be free from the particular injury 19 suffered” and is distinguishable from the legal theory on which liability is established. Mycogen 20 Corp., 28 Cal.4th at 904 . One injury gives rise to only one claim for relief. Id. Under the 21 “primary rights” theory “the significant factor is the harm suffered; that the same facts are 22 involved in both suits is not conclusive.” Agarwal v. Johnson, 25 Cal.3d 932 , 954–55 (1979), 23 disapproved of on other grounds by White v. Ultramar, Inc., 21 Cal.4th 563 (1999).) However, 24 the harm suffered is to be distinguished from the remedy sought and the same primary right may 25 entitle a plaintiff to multiple forms of relief. Mycogen, 28 Cal.4th at 904 . 26 In state court, Plaintiff alleged that he had been harmed by having his electronic property 27 confiscated due to the new revision of California Welfare & Institutions Code section 4350. The 28 primary right sought to be vindicated was Plaintiff’s right to possess his property, specifically — 12 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 13 of 34 1 his electronic property, under section 4350. Plaintiff contended that Defendant Price was the 2 moving force behind the amendment of section 4350. Accordingly, Plaintiff was required to 3 bring all causes of action to vindicate his right to possess this property in the same lawsuit 4 regardless of the legal theory under which recovery was sought or the relief requested. Boeken, — 5 — 48 Cal.4th at 797 ; Mycogen Corp., 28 Cal.4th at 897 . Therefore, the state court judgment 6 precludes all further suits seeking to recover for the loss of Plaintiff’s electronic property 7 pursuant to section 4350. 8 In the instant action, Plaintiff is alleging that he was harmed because his electronic 9 property, the same property that was identified in the state court action, was confiscated because 10 it had been determined to be contraband under the amendments to section 4350. Although the 11 state court action alleged a violation of the Takings Clause of the Fifth Amendment and Plaintiff 12 was seeking monetary damages, and the instant action alleged additional causes of action and 13 seeks injunctive relief, under California law, Plaintiff was required to bring all his legal theories 14 of recovery and any requests for relief in the same lawsuit. Boeken, 48 Cal.4th at 798 ; Mycogen 15 Corp., 28 Cal.4th at 904 ; DKN Holdings LLC, 61 Cal.4th at 824 . The claims that Plaintiff is 16 attempting to litigate in this lawsuit are the same claims involving the same primary right that 17 was raised or were required to be raised in the state court action and are entitled to res judicata 18 under California law. 19 b. Whether the suit involves the same parties or those in privity 20 Defendants argue that the state court and this action both name Defendant Price as a 21 defendant. Defendants acknowledge that Defendant Ahlin is only named in this action, but do 22 not address how this impacts the decision as to whether to apply res judicata. Plaintiff has not 23 argued that privity is lacking in this instance. 24 In the current action Plaintiff alleges that Defendant Price is the Executive Director of CSH 25 and Defendant Ahlin is the Director of the DSH. (Sec. Am. Compl. 1, ECF No. 31.) Defendant 26 Ahlin signed and submitted amended section 4350 to the Office of Administrative Law (“OAL”). 27 (Id.; January 12, 2018 Notice Publication/Regulation Submission, ECF No. 62-1 at 68.) 28 Defendant Price was responsible for implementing section 4350 at CSH. (Sec. Am. Compl. 1; — 13 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 14 of 34 1 January 12, 2018 Memorandum from Defendant Price Regarding Emergency Regulation 2 Approval, ECF No. 62-1 at 73-72; January 18, 2018 Memorandum from Defendant Price 3 Regarding Implementation of the Emergency Regulation, ECF No. 62-1 at 82-83.) Plaintiff 4 alleges that his property was confiscated because it is now considered contraband due to the 5 amendment of section 4350 and that Defendant Price confiscated property that was beyond the 6 scope of the amended regulation. 7 Plaintiff’s state court action alleged that Defendant Price had Plaintiff’s property 8 confiscated due to the new revisions to section 4350. (Williams II Compl., ¶ 7.) The state court 9 considered Defendant Price’s demurrer and it was sustained without leave to amend on all 10 grounds stated in Defendant’s demurrer. (ECF No. 62-1 at 127-28.) The action was dismissed 11 with prejudice. (Id. at 129-30.) 12 “Under the doctrine of res judicata, . . . a judgment for the defendant serves as a bar to 13 further litigation of the same cause of action.” Mycogen Corp., 28 Cal.4th at 896–97. Claim 14 preclusion applies where the party “against whom the doctrine is being asserted was a party or 15 in privity with a party to the prior adjudication.”2 In re Anthony H., 129 Cal.App.4th 495 , 503 16 (2005). “[P]rivity requires the sharing of ‘an identity or community of interest,’ with “adequate 17 representation’ of that interest in the first suit, and circumstances such that the nonparty ‘should 18 reasonably have expected to be bound’ by the first suit.” DKN Holdings LLC, 61 Cal.4th at 826 19 (quoting Clemmer v. Hartford Insurance Co., 22 Cal.3d 865, 875 (1978)). Privity requires “a 20 relationship between the party to be estopped and the unsuccessful party in the prior litigation 21 which is ‘sufficiently close’ so as to justify application of the doctrine of collateral estoppel.’ ” 22 Consumer Advocacy Grp., Inc. v. ExxonMobil Corp., 168 Cal.App.4th 675, 689 (2008) (quoting 23 2 Courts have held that the same party or privity requirement “only applies to the party or parties against whom res judicata is asserted, rather than the party who raises the defense.” Lodgepole Investments, LLC v. Barsky, No. 1524 CV-00549-KAW, 2015 WL 1306849 , at *6 (N.D. Cal. Mar. 23, 2015); see also Carmel Valley Fire Prot. Dist. v. State of California, 190 Cal.App.3d 521, 535 (1987) (quoting Lerner v. Los Angeles City Board of Education, 59 25 Cal.2d 382 , 398 (1963)); Sommer v. City of Redondo Beach, No. 2:18-CV-08896-SJO-FFM, 2019 WL 2970835 , at *4 (C.D. Cal. Mar. 12, 2019) (police officer acting in the scope of his employment and the city are in privity for the 26 purposes of res judicata). But in DKN Holdings, the California Supreme Court explained that courts often use res judicata to refer to both claim preclusion and issue preclusion which has caused some confusion. DKN Holdings 27 LLC, 61 Cal.4th at 823 . Claims preclusion requires that the prior action involve the same parties or parties in privity while issue preclusion can be asserted by someone who was not a party to the prior action. Id. at 824 ; Daniels v. 28 Select Portfolio Servicing, Inc., 246 Cal.App.4th 1150, 1163-64 (2016). — 14 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 15 of 34 1 Rodgers v. Sargent Controls & Aerospace, 136 Cal.App.4th 82 , 90–91 (2006)). “[T]he 2 determination of privity depends upon the fairness of binding appellant with the result obtained 3 in earlier proceedings in which it did not participate.” Id. The “nonparty alleged to be in privity 4 must have an interest so similar to the party’s interest that the party acted as the nonparty’s’ 5 ‘virtual representative’ in the first action.” DKN Holdings LLC, 61 Cal.4th at 826 . In addressing 6 the privity requirement, the California Supreme Court has held, 7 It is enough if, as here, the defendants in the present case are employees of the defendants in the previous state case. See [Bernhard v. Bank of America, 122 P.2d 8 892, 894 (Cal. 1942)]; Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam) (affirming the application of res judicata in a case where “[d]ifferent 9 individuals [we]re named defendants in the two suits” because “all [we]re employees of the FCC who participated in the” challenged conduct that led to the 10 alleged injury); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992) (“Although the two actions name different federal defendants, ‘[t]here is 11 privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in 12 relitigation of the same issue between that party and another officer of the government.’”) (citations omitted)). — 13 — 14 Valson v. Cates, No. 1:14-CV-01420-DAD-EPG, 2018 WL 6620341 , at *6 (E.D. Cal. Dec. 18, 15 2018), subsequently aff’d sub nom. Valson v. Kelso, No. 19-15381, 2020 WL 3889605 (9th Cir. 16 July 10, 2020). 17 The requirement that Defendant Ahlin be in privity has been demonstrated in this instance. 18 Defendant Ahlin, as Director of the DSH, was responsible for the revision to section 4350. 19 Defendant Price is employed by the DSH as the executive director at CSH. The current action 20 is alleged against Defendant Ahlin and Defendant Price in their official capacity for 21 implementing the amendments to section 4350 and confiscating Plaintiff’s property as it was 22 contraband under the amended regulation. In the small claims action, Plaintiff brought suit 23 against Defendant Price for directing that his electronic items be confiscated because they were 24 classified as contraband under the amendments to section 4350. Plaintiff was seeking to have 25 the court find that Defendant Price’s actions and practices were in violation of state law and the 26 regulations which had declared the property contraband and award monetary damages. 27 Although Plaintiff did not name Defendant Ahlin in the state court action, both actions are 28 based on the same claim that challenges the validity of the regulations and the confiscation of — 15 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 16 of 34 1 the property which was due to Defendant Ahlin’s actions in implementing the amendments to 2 section 4350. In other words, the harm that Plaintiff was alleging in the state court action was 3 directly due to Defendant Ahlin’s implementation of the amendments to section 4350. 4 Defendant Ahlin was the individual responsible for implementing the revision of the regulation 5 itself and Defendant Price was responsible to implement the revision at the institution. Both 6 actions were brought seeking to hold the defendant liable in their official capacity for the 7 amendment to section 4350. The demurrer was brought on the ground that the property was 8 properly confiscated as it was contraband under the amendments to section 4350, and the Court 9 sustained the demurrer. Here, Plaintiff raises the same claims. In these circumstances, the Court 10 finds that Defendant Ahlin’s relationship to Plaintiff is “ ‘sufficiently close’ so as to justify 11 application of the doctrine of collateral estoppel.’ ” Consumer Advocacy Grp., Inc., 168 12 Cal.App.4th at 689. The requirement that the action be between the same parties or parties in 13 privity is met. 14 c. Whether there was a final decision on the merits in the state action 15 The final issue is whether the decision in Williams II is a final decision on the merits. DKN 16 Holdings LLC, 61 Cal.4th at 824 . Under California law, “a plaintiff with a claim under $5,000 17 may choose to bring his action in small claims court rather than superior court.” Pitzen v. 18 Superior Court, 120 Cal.App.4th 1374, 1378 (2004) (quoting Code of Civil Proc., §§ 116.220(a), 19 116.320(a)). Here, Plaintiff’s state court claim was filed in small claims court. Initially, the 20 Court considers whether a judgment in small claims court is entitled to the preclusive effects of 21 res judicata. 22 California provides a speedy, inexpensive procedure that the plaintiff consents to by 23 choosing to file in small claims court. Cook v. Superior Court, San Mateo Cty., 274 Cal.App.2d 24 675, 678 (1969). California has a clear policy showing that a plaintiff electing to proceed in a 25 small claims court is to be finally bound by an adverse judgment. Cook, 274 Cal.App.2d at 678 ; 26 Pitzen, 120 Cal.App.4th at 1380 . “It is well established that the claim preclusion aspect of the 27 doctrine of res judicata applies to small claims judgments.” Pitzen, 120 Cal.App.4th at 1381 ; 28 see also Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal.App.4th 901, 914 (2000) (“The judgment — 16 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 17 of 34 1 of the small claims court bars a subsequent proceeding on the same cause of action.”); United 2 States ex rel. Hyatt v. Mirza, No. 2:17-CV-2125 KJM-KJN, 2018 WL 6653319 , at *3 (E.D. Cal. 3 Dec. 19, 2018) (“In California, small claims court judgments are given the same preclusive effect 4 as any other state court judgment.”). It is well established under California law that the judgment 5 on the merits of a small claims court is final and entitled to preclusive effect. Hawkins v. Bewley 6 Allen Cadillac, 959 F.2d 240 (9th Cir. 1992). Therefore, the small claims judgment is entitled 7 to res judicata effect if it was on the merits and final. 8 For a decision to be final and on the merits “means that the court must finally resolve the 9 rights of the parties on the substance of the claim, rather than on the basis of a procedural or 10 other rule precluding state review of the merits.” Barker v. Fleming, 423 F.3d 1085, 1092 (9th 11 Cir. 2005); see also Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052, n.4 (9th Cir. 12 2005) (quoting Semtek International, Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001)) 13 (“only a judgment that ‘actually passes directly on the substance of a particular claim before the 14 court ... triggers the doctrine of res judicata or claim preclusion’ ”). 15 Here, the Court considered the claim that the confiscation of Plaintiff’s property was a 16 violation of the Takings Clause of the Fifth Amendment. The parties argued whether there had 17 been a regulatory taking, whether the taking was for a public purpose and whether Plaintiff had 18 a protected interest in the property. The state court sustained the demurrer without leave to 19 amend. 20 The California Supreme Court has held that “[a] dismissal with prejudice is considered a 21 judgment on the merits preventing subsequent litigation between the parties on the dismissed 22 claim.” Kim v. Reins Int’l California, Inc., 9 Cal.5th 73 , 91 (2020); see also Boeken, 48 Cal.4th 23 at 793 (“The record before us does not indicate the reason for the dismissal; for purposes of 24 applying the doctrine of res judicata, however, a dismissal with prejudice is the equivalent of a 25 final judgment on the merits, barring the entire cause of action.”); del Campo v. Kennedy, 491 26 F.Supp.2d 891, 902 (N.D. Cal. 2006), aff’d, 517 F.3d 1070 (9th Cir. 2008). The state court 27 dismissal with prejudice was a decision on the merits of Plaintiff’s claims. 28 In the state court action, Plaintiff and Defendant Price both appeared on November 7, 2019 — 17 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 18 of 34 1 for hearing on Defendant’s demurrer and the demurrer was sustained without leave to amend. 2 (ECF No. 62-1 at 127-28.) The state court considered the merits of Plaintiff’s claim under the 3 Takings Clause of the Fifth Amendment and granted the demurrer in its entirety and the action 4 was dismissed with prejudice with judgment entered as to Defendant Price on January 31, 2020.3 5 (Id. at 129-30.) The small claims court judgment is a final decision on the merits. See Cal. Civ. 6 Proc. Code § 116.710. 7 d. Conclusion 8 Plaintiff is alleging the same wrong and the same injury against Defendants Price and Ahlin 9 that were finally decided on the merits in favor of Defendant Price in the state court lawsuit. 10 Although Defendant Ahlin was not named in the state court action, the court finds that she is in 11 privity for the purposes of claims preclusion in the state court action. Because the same claims 12 are asserted against Defendants Price and Ahlin that were decided in Defendant Price’s favor in 13 the state court action, the claims are barred by the doctrine of claims preclusion. San Diego 14 Police Officers’ Ass’n v. San Diego City Employees’ Ret. Sys., 568 F.3d 725, 736 (9th Cir. 15 2009). The Court recommends granting Defendants Price and Ahlin’s motion for judgment on 16 the pleadings. 17 III. 18 SCREENING OF THIRD AMENDED COMPLAINT 19 The Court screens the Williams III complaint that was filed as a third amended complaint 20 in this action. 21 A. Screening Requirement 22 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 23 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 24 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 25 such relief.” 28 U.S.C. § 1915 (e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) — 26 — — 3 — Where two actions are pending at the same time that involve the same controversy, the first final judgment that is 27 entered renders the issue res judicata in the other court. Consumer Advocacy Grp., Inc., 168 Cal.App.4th at 684 . Therefore, although the state court action was filed after the instant action, the final judgment is res judicata for 28 purposes of this still pending action. — 18 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 19 of 34 1 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 2 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 3 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 4 F.3d 1103 , 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 5 complaint under 28 U.S.C. § 1915 (e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 6 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion 7 to screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; 8 (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 9 defendant who is immune from such relief.” 28 U.S.C. § 1915 (e)(2). 10 In determining whether a complaint fails to state a claim, the Court uses the same pleading 11 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short 12 and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. 13 P. 8 (a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements 14 of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, — 15 — 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 16 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 17 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 18 89, 94 (2007). Although a court must accept as true all factual allegations contained in a 19 complaint, a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678 . 20 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . 21 ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting 22 Twombly, 550 U.S. at 557 ). Therefore, the complaint must contain sufficient factual content for 23 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 24 alleged. Iqbal, 556 U.S. at 678 . 25 B. Allegations in Third Amended Complaint 26 Plaintiff is a “patient”4 at Coalinga State Hospital (“CSH”). (Third Am. Compl. (“TAC”), 27 4 Based on the allegations in the complaint, Plaintiff is a civil detainee confined as a sexually violent predator (“SVP”) under California’s Sexually Violent Predator Act (“SVPA”) which authorizes the civil commitment of “sexually 28 violent predator[s].” See Cal. Welf. & Inst. Code §§ 6600.05 , 6604. — 19 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 20 of 34 1 1, ECF No. 72.) Plaintiff brings this action against Brandon Price, Executive Director of CSH; 2 and Pam Ahlin, Director of the DSH; Lt. Aaron Maylin, Department of Police Services; 3 Samantha Sanchez, Unit Supervisor; and Joanne Brewer, Sr. Psychiatric Technician, in their 4 personal and official capacities, alleging that new revisions to section 4350 of Title 15 of the 5 California Code of Regulations which categorize electronics as contraband caused his personal 6 property to be confiscated. Plaintiff’s complaint is comprised largely of argument. The 7 following factual allegations are included in the third amended complaint. 8 Defendant Ahlin signed and submitted the newly revised section 4350 to the OAL, and 9 Defendant Price is responsible for the implementation of the newly revised section 4350 at CSH. 10 (TAC at 2.) Defendants Maylin, Sanchez, and Brewer confiscated Plaintiff’s personal property, 11 including property that was beyond the scope of the amended section 4350. (Id.) Plaintiff 12 previously brought an action against the named defendants in this court seeking just 13 compensation that was dismissed on the grounds that state remedies were available and because 14 Plaintiff did not first seek relief in the state court. (Id.) Plaintiff contends that he is no longer 15 required to exhaust administrative remedies to seek damages under the Takings Clause of the 16 Fifth Amendment. (Id.) Plaintiff has since brought a state court action, case no. 19CECL02848, 17 that was dismissed on the ground of untimely filing. (Id.) Plaintiff brings a new claim under the 18 takings clause and is not required to seek relief from the state court to file a claim on these 19 grounds. (Id.) 20 On January 12, 2018, Plaintiff received a memorandum from Defendant Price regarding 21 an emergency regulation that was approved by the OAL. (Id. at 3.) The memorandum informed 22 the patients at CSH that certain electronic devices and items were considered contraband and 23 implementation of the new regulation would begin in the next few weeks. (Id. at 3-4.) The — 24 — 25 A “sexually violent predator” is a “person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the 26 health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” Id. § 6600. Inmates held during the pendency of SVPA commitment proceedings are civil 27 detainees. Jones, 393 F.3d at 922. 28 King v. Cty. of Los Angeles, 885 F.3d 548, 553 (9th Cir. 2018). — 20 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 21 of 34 1 regulations make certain of Plaintiff’s devices, including multi-media players, mp3 music 2 players, gaming devices such as an Xbox 360 and or Play Station Portable, and graphing 3 calculators contraband. (Id. at 4.) Plaintiff contends that the amendment to section 4350 strips 4 him of practically all his electronic devices and he has been allowed to possess these devices for 5 years. (Id.) 6 Plaintiff alleges that confiscation of these devices denies him the right to access the courts, 7 play video games, listen to music, watch television shows and movies, pursue his college degree 8 in mathematics, and the restriction placed on allowable property is overly broad and serves no 9 relation to the stated governmental interest of protecting the public from illegal materials (child 10 pornography). (Id. at 4-5.) Plaintiff contends that the regulation violates many constitutional 11 provisions, denying him his First Amendment rights to freedom of speech and freedom of the 12 press, his ability to create documents and communicate those documents to others is severely 13 limited, and the regulation severely hampers his right to communicate to the courts which often 14 require that briefs be typewritten. (Id. at 5.) Plaintiff will be required to use a state issued thumb 15 drive to do his legal work which will be retained by agents of the state and pursuant to the lab 16 and thumb drive agreement the documents can be reviewed at their leisure. (Id.) Plaintiff also 17 contends that he cannot digitally store documents and he will be forced to retain paper copies of 18 his court documents which will create a precarious situation where the defendants could 19 confiscate his property for violating policies regarding fire safety and excessive papers. (Id.) 20 CSH is located in a rural area and external antennas are required to be removed from radios. 21 (Id.) The regulations forbid Plaintiff from having a television antenna attached to his window in 22 his living quarters. (Id.) Plaintiff’s room is not fitted with any type of cable or master television 23 distribution system and television and FM radio reception are virtually nonexistent. (Id.) 24 Plaintiff relies on his multi-media players and mp3 player for entertainment. (Id.) There are two 25 televisions per unit in the housing area for fifty patients. (Id.) These televisions receive satellite 26 service, but he cannot get 49 other people to agree on the programing to watch so he cannot 27 enjoy television in the public areas. (Id.) The majority of physical altercations in the facility 28 result from disagreements over the public televisions and which programs to watch. (Id.) — 21 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 22 of 34 1 Plaintiff contends that he will have practically no alternative channels of communication 2 available and subjecting him to such conditions would be punitive. (Id. at 6.) Plaintiff is in 3 custody pending civil commitment proceedings and the conditions complained of are punitive in 4 violation of his right to be free of cruel and unusual punishment and also violate the Due Process 5 Clause of the Fourteenth Amendment. (Id.) 6 Plaintiff also contends that the amendment denies him his rights under the Fourth 7 Amendment. (Id.) Plaintiff contends that the State has granted itself broad police powers to 8 conduct searches for illegal material without a warrant. (Id.) Patients who are in possession of 9 property that is now considered contraband can grant permission for the items to be reviewed for 10 illegal materials. (Id.) If consent is granted and there is no illegal material found on the items, 11 the items may be mailed to a location designated by the patient or stored at the hospital. (Id.) If 12 consent is not granted by the patient to search the contraband items, the hospital shall destroy 13 the items as contraband. (Id.) Plaintiff was given the Hobson’s Choice of waiving his Fourth 14 Amendment rights and submitting to an improper and illegal search of his papers and files for 15 illegal materials or refuse to waive his rights and have his property destroyed. (Id. at 6-7.) 16 On January 22, 2018, Defendants Maylin, Sanchez, and Brewer confiscated most of 17 Plaintiff’s personal property. (Id. at 7.) Not only were items within section 4350 confiscated, 18 but food items and supplements, an Xbox 360 console and accessories, keyboard and mouse, 19 and videos and video games were confiscated. (Id.) Much of this property was not within the 20 purview of the revised section 4350. (Id.) Items that were confiscated fall within 4350 but the 21 confiscation is not narrowly tailored to the proffered purpose are a video monitor, graphing 22 calculator, wireless headphones, factory CDs, DVDs and BluRay disks. (Id.) Also within the 23 items confiscated are his Android Tablet and other peripheral items. (Id.) Plaintiff has been 24 allowed to purchase and use this property for more than a decade that is now considered to be 25 contraband. (Id. at 8.) Plaintiff has been deprived of his property without any compensation. 26 (Id.) Plaintiff contends that section 4350 constitutes a physical appropriate of property without 27 just compensation that is per se unconstitutional. (Id.) 28 Plaintiff contends that this blanket ban on electronic devices capable of reading and writing — 22 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 23 of 34 1 to memory devises retroactively deprives owners of lawfully acquired devices without advancing 2 the Governments interest in public safety and it violates the Due Process Clause. (Id.) Plaintiff 3 argues there is no reason to believe that taking the devices from patients who have properly used 4 and lawfully possessed them since 2006 is now related to the advancing the State’s interest in 5 public safety. (Id.) Patients who violate the policy and store illegal material should be dealt 6 with on an individual basis. (Id.) The amended section stifles too much constitutionally 7 protected speech to achieve the narrowest of ends. (Id.) 8 The new regulation was justified due to the “epidemic of child pornography” at CSH, 9 however the regulation affects all institutions statewide. (Id. at 8-9.) Given the numbers that 10 Defendants have used to justify the regulation, less than one percent of the patient population at 11 CSH has engaged in the illegal activities. (Id. at 9.) Defendants do not contend that possession 12 of child pornography is a state-wide problem at other hospitals. (Id.) Since CSH opened five 13 employees have been caught in possession of child pornography. (Id.) It is not clear if these 14 individuals were included in the numbers to justify the alleged epidemic of child pornography. 15 (Id.) 16 Plaintiff alleges that when the regulatory scheme is looked at in its entirety it is punitive in 17 relation to the stated government interest. (Id.) There is no stated reason for the limitation on 18 property that is allowed under the regulation. (Id.) Prior to the amended regulation, Plaintiff 19 was allowed to possess more than one television, one radio, one CD/DVD/BluRay player, and 20 thirty factory DVDS. (Id.) The limitations in section 4350 have nothing to do with internet 21 access or possession of illegal materials. (Id.) 22 Since the defendants have confiscated all of his electronic property, Plaintiff contends there 23 is no safety and security concern remaining so they may not search his property for illegal 24 material. (Id. at 9.) Plaintiff contends that there is less than a one percent statistical probability 25 the he possesses any illegal material based on the numbers that the defendants have put forward. 26 (Id. at 9-10.) Since there is no claim that Plaintiff engaged in any illegal activity, the regulation 27 improperly allows an illegal warrantless search without any individualized probable cause. (Id. 28 at 10.) Sgt. Jones of the Department of Police Services stated that all confiscated property was — 23 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 24 of 34 1 booked into evidence and would be searched for illegal material whether or not consent was 2 voluntarily waived. (Id.) Plaintiff contends that a search warrant must be sought before any of 3 the confiscated property can be searched. (Id. at 11.) 4 On January 18, 2018, Defendant Price circulated a memorandum entitled “Implementation 5 Plan (Phase 1) for Emergency Regulation which set forth the method that would be used to 6 confiscate the contraband property. (Id.) Plaintiff contends that the argument that Plaintiff has 7 an interest in his property once it is mailed out is not persuasive since he refused to consent to 8 an illegal unwarranted search and there is no guarantee that his property will be mailed to a place 9 of his choosing. (Id. at 12.) Further, Plaintiff argues that he has been locked up a long time and 10 is facing an indefinite commitment with no guarantee that he will be release so once his property 11 is taken all interest and ownership of the property ceases to exist. (Id.) 12 Prior to being incarcerated, Plaintiff lived in Los Angeles and enjoyed excellent radio and 13 television reception. (Id.) He did not have a need for multimedia players. (Id.) However, CSH 14 is located in a rural area. (Id.) There are local policies requiring the removal of metallic antennas 15 from radios and televisions and disallowing external plastic antennas to be placed in the window 16 to make reception possible. (Id. at 12-13.) Plaintiff is not allowed to have cable or MATV to 17 pick up signals. (Id. at 13.) Plaintiff cannot possess a satellite radio. (Id.) These policies 18 practically eliminate all personal channels of communication available to Plaintiff. (Id.) 19 Plaintiff contends that these conditions are punitive in nature and place a far greater burden on 20 Plaintiff than those prisoners that are housed next door at PVSP. (Id.) The prisoners at PVSP 21 are allowed to have an MATV cable hookup in their cell. (Id.) They are also allowed to purchase 22 and possess Xbox 360s and Sony Play Station 2s as long the items are purchased from an 23 approved vendor and the internet connectivity is removed. (Id.) 24 Plaintiff was previously allowed to purchase Xbox 360s and Play Station 2s and related 25 peripherals from approved vendors. (Id. at 13.) The new regulations allow Plaintiff to possess 26 these items. (Id.) Plaintiff paid a premium price to purchase the items through an approved 27 vendor. (Id.) Although the items are allowed by the new regulation, Defendant Price issued a 28 memorandum on March 23, 2018 disallowing Xbox gaming systems and Play Station gaming — 24 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 25 of 34 1 systems. (Id. at 13-14.) 2 Plaintiff is a college student and was actively pursing a degree in mathematics. (Id. at 14.) 3 Among the devices confiscated are his graphing calculators. (Id.) The proffered governmental 4 interest is being applied too broadly as this device has no wireless capacity and no internet access 5 capability yet it has been banned. (Id.) Plaintiff is unable to pursue his coursework and has been 6 forced to abandon his class and his hopes of earing a degree in mathematics. (Id.) 7 Plaintiff seeks a declaration that section 4350 violates his First Amendment rights to 8 freedom of speech and freedom of the press, his Fourth Amendment right against unreasonable 9 search and seizure, and is an unconstitutional taking of his property without compensation under 10 the Fifth Amendment. (Id. at 18, 20.) Plaintiff seeks compensatory damages for his confiscated 11 property; punitive damages; and declaratory relief declaring the revised section 4350 null and 12 void as being overly broad in application and punitive in effect. (Id. at 15.) 13 C. Discussion 14 1. Plaintiff’s Claims Against Defendants Price and Ahlin are Barred by Res Judicata 15 For the reasons discussed infra in addressing Defendants’ motion for judgment on the 16 pleadings, the claims against Defendants Price and Ahlin are barred by res judicata due to the 17 final decision on the merits of this claim in the state court. 18 2. Whether Plaintiff has Stated a Claim Against Defendants Maylin, Sanchez, and Brewer Based on the Confiscation of His Property Pursuant to the Amendments to 19 Section 4350 20 The Court considers whether Plaintiff has stated a claim against Defendants Maylin, 21 Sanchez, and Brewer based on the allegations in the third amended complaint that they confiscated 22 his personal property. 23 a. Nature of Action against Defendants 24 Here, Plaintiff alleges that he is bringing claims against all defendants in their individual 25 and official capacities. The court looks to the basis of the claims asserted and the nature of the 26 relief sought to determine if the claims are asserted against the defendants in their individual or 27 official capacity. Cent. Reserve Life of N. Am. Ins. Co. v. Struve, 852 F.2d 1158 , 1161 (9th Cir. 28 1988). — 25 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 26 of 34 1 A suit brought against government officials in their official capacity is generally equivalent 2 to a suit against the government itself. McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986). 3 Therefore, officials may be held liable if “‘policy or custom’ . . . played a part in the violation of 4 federal law.” McRorie, 795 F.2d at 783 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985); 5 Hafer v. Melo, 502 U.S. 21, 25 (1991). To the extent that Plaintiff attempts to allege an official 6 capacity claim against Defendants Maylin, Sanchez, and Brewer, such claims would be barred by 7 the doctrine of res judicata for the reasons discussed infra. The official capacity claims are “only 8 another way of pleading an action against an entity of which an officer is an agent.” Graham, 473 9 U.S. at 165. As employees of the state, the named defendants are in privity for the purposes of the 10 official capacity claim challenging the constitutionality of the regulation. Valson, 2018 WL 11 6620341, at *6. Accordingly, Plaintiff cannot bring a claim against Defendants Maylin, Sanchez, 12 and Brewer in their official capacity for their actions in confiscating items that were considered 13 contraband under the amended regulation. 14 However, personal capacity suits seek to impose individual liability on the government 15 official for actions taken under the color of state law. Hafer, 502 U.S. at 25 . To state an individual 16 capacity claim, the plaintiff must show that the actions of the defendant caused the deprivation of 17 a federal rights. Id. “[T]o establish personal liability in a § 1983 action, it is enough to show that 18 the official, acting under color of state law, caused the deprivation of a federal right.” Graham, — 19 — 473 U.S. at 166 . 20 Here, Plaintiff is alleging that on January 22, 2018, Defendants Maylin, Sanchez, and 21 Brewer confiscated most of Plaintiff’s personal property, including property that was not 22 contraband, pursuant to the amendment to section 4350. (Id. at 7.) The claims that the named 23 defendants confiscated of Plaintiff’s property would be against the defendants in their individual 24 capacity. 25 b. Due Process 26 Plaintiff alleges that the confiscation of his property violated his rights under the Due 27 Process Clause of the Fourteenth Amendment. The Due Process Clause of the Fourteenth 28 Amendment of the United States Constitution protects Plaintiff from being deprived of property — 26 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 27 of 34 1 without due process of law, Wolff v. McDonnell, 418 U.S. at 545, and Plaintiff has a protected 2 interest in his personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). Here, Plaintiff 3 is alleged two separate violations of the due process clause. Plaintiff contends that the defendants 4 confiscated property that was within the purview of the amendments to section 4350 (an authorized 5 and intentional deprivation) and property that was not within the purview of section 4350 (an 6 unauthorized deprivation). 7 As to Plaintiff’s claim that the defendants confiscated property that was contraband under 8 section 4350, the authorized, intentional deprivations of property are actionable under the Due 9 Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984); Quick v. Jones, 754 F.2d 10 1521, 1524 (9th Cir. 1985). However, these claims that confiscation of his property violated his 11 due process rights because the amendment itself was unconstitutional are barred by res judicata. 12 To the extent that Plaintiff contends that procedural due process was violated by the confiscation 13 of his property, the Court has previously held Plaintiff has failed to state a claim. 14 The Court found that the Ninth Circuit’s holding in Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011), provided the appropriate framework 15 for evaluation of procedural due process claims in the institutional context. ECF No. 27 at 13-15. In Greene, the Ninth Circuit found that where “prison officials 16 enacted a system-wide ban [of typewriters] with no exceptions[,]” procedural due process did not require an individual predeprivation hearing where inmate “was 17 notified of the change in the regulation and given an adequate opportunity to comply with it.” 648 F.3d at 1019 . Applying Greene, this Court found that Plaintiff 18 failed to allege he was not given an adequate opportunity to comply with the new regulation (or the implementation memorandum issued by Defendant Price), but 19 granted Plaintiff leave to amend his procedural due process claim to allege such facts. ECF No. 27 at 14-15. — 20 — (Order Adopting in Part and Declining to Adopt in Part Findings and Recommendations — 21 — Dismissing Certain Claims in the Second Amended Complaint, 2, ECF No. 35.) Plaintiff’s — 22 — procedural due process claim was dismissed without leave to amend. (Id. at 3.) Plaintiff has — 23 — acknowledged that he received notice of the amendment to the regulation that made property that — 24 — was in his possession contraband and Defendant Price’s memorandum which designated the — 25 — contested electronic property as contraband and of the process by which he could have this — 26 — property sent to an individual of his choice or stored in off site storage. Plaintiff cannot state a — 27 — procedural due process claim based on the confiscation of his property that was designated as — 28 — — 27 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 28 of 34 1 contraband under the amended regulation. 2 Plaintiff also alleges that property that was not barred by the amendment to the regulation, 3 such as food items and supplements were also confiscated. The Due Process Clause is not violated 4 by the random, unauthorized deprivation of property so long as the state provides an adequate post5 deprivation remedy. Hudson, 468 U.S. at 533 ; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 6 1994). The confiscation of items such as food and supplements would not be authorized by section 7 4350 and would therefore be a random, unauthorized deprivation of property for which the state 8 provides an adequate post-deprivation remedy. Hudson, 468 U.S. at 533 (1984); Barnett, 31 F.3d 9 at 816-17 (California provides an adequate post deprivation remedy for property deprivations). 10 Plaintiff has failed to state a claim for the deprivation of property other than those items prohibited 11 by section 4350. 12 Plaintiff alleges in his complaint that this claim was dismissed because remedies were 13 available in the State court and he had not filed a claim there first. (TAC 2.) However, Plaintiff 14 is incorrect that any claim in this action was dismissed for failure to first exhaust state remedies. 15 In Parratt v. Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds by Daniels v. Williams, — 16 — 474 U.S. 327 (1986), the Supreme Court considered whether a negligent taking of property would 17 violate the Due Process Clause. The Court considered that previous cases finding a due process 18 violation involved deprivations of property that “were authorized by an established state procedure 19 and due process was held to require predeprivation notice and hearing in order to serve as a check 20 on the possibility that a wrongful deprivation would occur.” Parratt, 451 U.S. at 538 . The Court 21 “recognized that postdeprivation remedies made available by the State can satisfy the Due Process 22 Clause. In such cases, the normal predeprivation notice and opportunity to be heard is pretermitted 23 if the State provides a postdeprivation remedy.” Id.; accord Taylor v. Knapp, 871 F.2d 803 , 807 24 (9th Cir. 1989); Barnett, 31 F.3d at 816 ; Dennison v. Ryan, 522 F. App’x 414, 418 (9th Cir. 2013).5 25 Our past cases mandate that some kind of hearing is required at some time before a State finally deprives a person of his property interests. The fundamental 26 requirement of due process is the opportunity to be heard and it is an “opportunity which must be granted at a meaningful time and in a meaningful manner.” — 27 — 28 5 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b). — 28 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 29 of 34 1 However, . . . we have rejected the proposition that “at a meaningful time and in a meaningful manner” always requires the State to provide a hearing prior to the 2 initial deprivation of property. This rejection is based in part on the impracticability in some cases of providing any preseizure hearing under a state-authorized 3 procedure, and the assumption that at some time a full and meaningful hearing will be available. — 4 — The justifications which we have found sufficient to uphold takings of property 5 without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner’s property as a result of a random and 6 unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will 7 occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although 8 attributable to the State as action under “color of law,” is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but 9 impossible, to provide a meaningful hearing before the deprivation. That does not mean, of course, that the State can take property without providing a meaningful 10 postdeprivation hearing. The prior cases which have excused the prior-hearing requirement have rested in part on the availability of some meaningful opportunity 11 subsequent to the initial taking for a determination of rights and liabilities. 12 Parratt, 451 U.S. at 540-41 (internal citations omitted). 13 The Supreme Court held that since state remedies are available, even though they may not 14 provide an inmate “with all the relief which may have been available if he could have proceeded 15 under § 1983, that does not mean that the state remedies are not adequate to satisfy the 16 requirements of due process. The remedies provided could have fully compensated the respondent 17 for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of 18 due process.” Parratt, 451 U.S. at 544 . The Supreme Court did not create an exhaustion 19 requirement, but found that such deprivations are not cognizable under section 1983 because the 20 state has provided an adequate post deprivation remedy to satisfy due process. 21 Plaintiff relies on Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162 (2019), to argue that 22 he no longer needs to pursue state remedies before bringing his claims in this action. In Knick, 23 the Supreme Court considered that in Williamson County Regional Planning Comm’n v. Hamilton 24 Bank of Johnson City, 473 U.S. 172 (1985), it had held that a property owner whose property was 25 taken by a local government had not suffered a violation of his Fifth Amendment rights and could 26 not bring a federal takings claim in federal court until after the state court had denied his claim for 27 just compensation under state law. Knick, 139 S. Ct. at 2167 . The Court determined that “the 28 state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with — 29 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 30 of 34 1 the rest of our takings jurisprudence, and must be overruled.” Id. The Supreme Court held, 2 A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the 3 government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain 4 compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his 5 Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under § 1983 at 6 that time. 7 Id. at 2167–68. 8 The Supreme Court considered that one of the cases upon which Williamson County 9 Regional Planning Comm’n had relied was Parratt. Knick, 139 S. Ct. at 2174 . 10 Parratt did not involve a takings claim for just compensation. Indeed, it was not a takings case at all. Parratt held that a prisoner deprived of $ 23.50 worth of hobby 11 materials by the rogue act of a state employee could not state a due process claim if the State provided adequate post-deprivation process. But the analogy from the 12 due process context to the takings context is strained, as Williamson County itself recognized. It is not even possible for a State to provide pre-deprivation due 13 process for the unauthorized act of a single employee. That is quite different from the taking of property by the government through physical invasion or a regulation 14 that destroys a property’s productive use. 15 Knick, 139 S. Ct. at 2174 . To the extent that Plaintiff seeks to state a due process claim, Knick 16 did not overrule the holding in Parratt that an adequate postdeprivation remedy under state law 17 provides all the process due for a random and unauthorized deprivation of property. See also 18 Bruzga v. Cty. of Boulder by & through Bd. of Cty. Commissioners, 795 F.App’x 599, 603 (10th 19 Cir. 2020) (no showing that the reasoning in Knick affects plaintiff’s procedural due process 20 claim); Polk v. Godina, No. 1:12-CV-01094-LJO-BAM-PC, 2019 WL 6250697 , at *2 (E.D. Cal. 21 Nov. 22, 2019) (Knick draws a distinction between “due process for the unauthorized act of a 22 single employee” and “the taking of property by the government through physical invasion or a 23 regulation.). Accordingly, Plaintiff cannot state a claim for the unauthorized confiscation of his 24 property. 25 c. Fifth Amendment Takings Claim 26 Plaintiff alleges that the confiscation of his property was a taking of his property in 27 violation of the Fifth Amendment. The Fifth Amendment provides that “private property [shall 28 not] be taken for public use, without just compensation. The Takings Clause of the Fifth — 30 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 31 of 34 1 Amendment “limits the government’s ability to confiscate property without paying for it,” and 2 “is designed to bar Government from forcing some people alone to bear public burdens which, 3 in all fairness and justice, should be borne by the public as a whole.” Vance v. Barrett, 345 F.3d 4 1083, 1089 (9th Cir. 2003) (internal quotations and citation omitted). The Takings Clause has 5 been applied to two types of governmental action, the taking of physical possession or control 6 of property for public use, and regulations prohibiting private use of property. Tahoe-Sierra 7 Preservation Counsel. Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321-22 (2002). 8 To state a claim, a plaintiff must allege that his property was taken for a public purpose. See 9 Kelo v. City of New London, Connecticut, 545 U.S. 469, 477-80 (2005). 10 To the extent that Plaintiff claims his Fifth Amendment claim was dismissed because he 11 had not exhausted state remedies, he is incorrect. Plaintiff’s Fifth Amendment claim was 12 dismissed because his “contention that his property was confiscated as contraband does not 13 plausibly allege that the government confiscated his property for a public purpose. On the 14 contrary, Plaintiff’s complaint demonstrates that the property shall be sent to the custodian of 15 Plaintiff’s choice as long as no illegal material is involved. Plaintiff has failed to state a claim 16 under the takings clause of the Fifth Amendment.” (Findings and Recommendations 17 Recommending Dismissing Certain Claims, 17, ECF No. 18 (adopted in part on July 19, 2018 18 (ECF No. 27).) 19 Here, Plaintiff’s contention that his property was confiscated as contraband does not 20 plausibly allege that the government confiscated his property for a public purpose. On the 21 contrary, Plaintiff’s third amended complaint demonstrates that while Plaintiff is unable to have 22 the property while he is a patient, the property shall be sent to the custodian of Plaintiff’s choice 23 as long as no illegal material is present on the device or he can have the property stored in off 24 unit storage if he has no one to whom he can send the property. Plaintiff has failed to state a 25 claim under the Takings Clause of the Fifth Amendment. 26 d. Fourth Amendment 27 To the extent that Plaintiff seeks to state a claim that the confiscation of his property 28 violated the Fourth Amendment he cannot do so. The Fourth Amendment provides that ‘the right — 31 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 32 of 34 1 of the people to be secure in their persons, houses, papers, and effects, against unreasonable 2 searches and seizures, shall not be violated. U.S. Const. amend. IV. The Fourth Amendment 3 prohibition against unreasonable search and seizure extends to incarcerated prisoners and civil 4 detainees. Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997) (prisoners); Hydrick v. Hunter, — 5 — 500 F.3d 978, 993 (9th Cir. 2007), cert. granted, judgment vacated on other grounds, 556 U.S. 6 1256 (2009) (civil detainees). However, “the reasonableness of a particular search is determined 7 by reference to the prison context.” Hydrick, 500 F.3d at 993 (quoting Michenfelder v. Sumner, — 8 — 860 F.2d 328, 332 (9th Cir. 1988)). Confinement in a state institution raises concerns similar to 9 those raised by housing pretrial detainees, such as “the safety and security of guards and others in 10 the facility, order within the facility and the efficiency of the facility’s operations.” Hydrick, 550 11 F.3d at 993 (quoting Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001)). 12 For the Fourth Amendment to apply, there must be a reasonable expectation of privacy in 13 the place that is invaded. Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 533 (9th Cir. 14 2010). “The contours of an involuntarily confined civil detainee’s right to privacy in his room in 15 a secure treatment facility are unclear, but assuming Plaintiff retains any reasonable expectation 16 of privacy at all in his living area at CSH, it would necessarily be of a diminished scope given 17 Plaintiff’s civil confinement.” Warrior v. Santiago, No. 116CV01504AWIGSAPC, 2018 WL 18 827616, at *4 (E.D. Cal. Feb. 12, 2018) (collecting cases). Although Plaintiff is not a convicted 19 criminal, “he is involuntarily serving a civil commitment term at a secure facility; and he is not a 20 free individual with a full panoply of rights.” Ryan v. Siqueiros, No. 1:15-CV-01152 DLB PC, — 21 — 2016 WL 2898450 , at *2 (E.D. Cal. May 18, 2016). Although civil detainees are entitled to more 22 considerate treatment and conditions of confinement than prisoners, Youngberg v. Romeo, 457 23 U.S. 307 , 322 (1982), maintaining facility security and effectively managing the institution are 24 unquestionably legitimate, non-punitive government interests, Jones v. Blanas, 393 F.3d 918 , 932 25 (9th Cir. 2004). 26 Here, Plaintiff alleges that his property was confiscated because it was deemed to be 27 contraband pursuant to section 4350 and contends that no search can be conducted without a 28 warrant. While Plaintiff alleges that any security and safety concerns evaporated once the — 32 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 33 of 34 1 contraband devices are taken into Defendants’ possession, Defendants maintain an interest in 2 determining if illegal material is present on the devices prior to releasing them to a third party of 3 Plaintiff’s choosing. Prison officials are not required to obtain a warrant prior to searching for 4 illegal material in the possession of inmates. Ferguson v. Cardwell, 392 F.Supp. 750, 752 (D. 5 Ariz. 1975 ) (“since a prison employee is subject to search without a warrant or probable cause, it 6 necessarily follows that the inmates are likewise subject to searches without a warrant or probable 7 cause”). Given the context of the allegations here, Plaintiff has failed to state a cognizable claim 8 under the Fourth Amendment for seizure or search of his property. 9 e. Leave to Amend 10 Plaintiff has failed to state a cognizable claim under section 1983 against Defendants Maylin, 11 Sanchez, and Brewer for a violation of his federal rights. Under Rule 15(a) of the Federal Rules 12 of Civil Procedure, leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 13 15(a)(2). In determining whether to grant leave to amend, the court considers five factors: “(1) 14 bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) 15 whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805 , 16 808 (9th Cir. 2004); accord Madeja v. Olympic Packers, LLC., 310 F.3d 628, 636 (9th Cir. 2002). 17 The factors are not given equal weight and futility alone is sufficient to justify the denial of a 18 motion to amend. Washington v. Lowe’s HIW Inc., 75 F.Supp.3d 1240, 1245 (N.D. Cal. 2014), 19 appeal dismissed (Feb. 25, 2015). 20 Plaintiff has previously been granted leave to file an amended complaint with guidance from 21 the Court. Plaintiff’s third amended complaint is largely identical to the first and second amended 22 complaints which have been previously screened. Those claims which have been found to state a 23 claim are barred by res judicata and Plaintiff has failed to state any other cognizable claims. Based 24 upon the allegations in Plaintiff’s original, first, and second amended complaints, the Court is 25 persuaded that Plaintiff is unable to allege any additional facts that would support any additional 26 claims and further amendment would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th 27 Cir. 2013) (“A district court may deny leave to amend when amendment would be futile.”) Based 28 on the nature of the deficiencies at issue, the Court finds that further leave to amend is not — 33 — Case 1:18-cv-00102-NONE-SAB Document 73 Filed 07/29/20 Page 34 of 34 1 warranted. Lopez, 203 F.3d at 1130 ; Noll v. Carlson, 809 F.2d 1446 -1449 (9th Cir. 1987). 2 V. 3 CONCLUSION AND RECOMMENDATION 4 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 5 1. Defendants Price and Ahlin’s motion for judgment on the pleadings, filed February 6 21, 2020, be GRANTED; 7 2. Plaintiff’s claims against Defendants Maylin, Sanchez, and Brewer be dismissed 8 without leave to amend for failure to state a claim; 9 3. The third amended complaint be dismissed without leave to amend; and 10 4. This action be dismissed with prejudice on the ground of res judicata and for failure 11 to state a claim. 12 This findings and recommendations is submitted to the district judge assigned to this 13 action, pursuant to 28 U.S.C. § 636 (b)(1)(B) and this Court’s Local Rule 304. Within thirty 14 (30) days of service of this recommendation, any party may file written objections to this 15 findings and recommendations with the court and serve a copy on all parties. Such a document 16 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 17 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 18 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified 19 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 20 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). — 21 — IT IS SO ORDERED. — 22 — 23 Dated: July 29, 2020 UNITED STATES MAGISTRATE JUDGE — 24 — — 25 — — 26 — — 27 — — 28 — — 34 —