(PC) Felix v. Clendenin ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT EMERSON FELIX, Case No. 1:19-cv-01784-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE 13 v. (ECF No. 1) 14 CLENDENIN, et al., ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 15 Defendants. (ECF No. 45) 16 FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION TO 17 DISMISS (ECF No. 42) 18 FOURTEEN (14) DAY DEADLINE 19 20 21 I. Introduction 22 Plaintiff Scott Emerson Felix (“Plaintiff”) is a civil detainee proceeding pro se in this civil 23 rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to California Welfare 24 and Institutions Code § 6600 et seq. are civil detainees and are not prisoners within the meaning 25 of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 26 As Plaintiff is a civil detainee and has paid the filing fee, he is not a prisoner or 27 proceeding in forma pauperis, and therefore the Court ordered the complaint to be served without 28 screening. (ECF No. 13.) This action therefore proceeds on Plaintiff’s complaint, filed 1 December 23, 2019, (ECF No. 1), against Defendants California Department of State Hospitals 2 (“DSH”), Department of State Hospitals – Coalinga (“DSH-Coalinga”), Stephanie Clendenin, 3 Brandon Price, Francis Hicks, and Matthew Zelt. 4 Defendants DSH, DSH-Coalinga, Clendenin, Price, and Hicks filed a motion to dismiss 5 on August 2, 2022. (ECF No. 42.) Plaintiff filed an opposition on September 16, 2022, including 6 a renewed request for appointment of counsel and more than 130 pages of exhibits. (ECF No. 7 45.) Following an extension of time, Defendants DSH, DSH-Coalinga, Clendenin, Price, and 8 Hicks filed a reply brief. (ECF No. 48.) Defendant Zelt joined in the motion to dismiss on 9 October 11, 2022. (ECF No. 53.) The motion is deemed submitted. Local Rule 230(l). 10 II. Plaintiff’s Renewed Request for Appointment of Counsel 11 Although he is not proceeding in forma pauperis in this action, Plaintiff has included a 12 renewed request for appointment of counsel with his opposition. (ECF No. 45, pp. 136–39.) 13 As noted in prior orders, Plaintiff has filed repeated requests for appointment of counsel, 14 and the Court has repeatedly and summarily denied the same. (ECF Nos. 21, 25, 36, 39, 57, 66.) 15 The request included in Plaintiff’s opposition similarly raises no new arguments or evidence to 16 support a different determination, particularly in light of the Court’s findings on Defendants’ 17 motion to dismiss. The motion is denied. 18 III. Legal Standard on Motion to Dismiss 19 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 20 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 21 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 22 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 23 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 24 McKeithen, 395 U.S. 411, 421 (1969); Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 25 1999). In ruling on the motion, the court “may generally consider only allegations contained in 26 the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” 27 Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and 28 quotation marks omitted). The court may also consider documents incorporated by reference into 1 the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 2 In general, pro se pleadings are held to a less stringent standard than those drafted by 3 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe 4 such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). 5 However, a court’s liberal interpretation of a pro se complaint may not supply essential elements 6 of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th 7 Cir. 1982). Also, the Court need not credit “naked assertions,” “labels and conclusions” or “a 8 formulaic recitation of the elements of a cause of action.” See Bell Atlantic Corp. v. Twombly, 9 550 U.S. 544, 555–57 (2007). 10 IV. Plaintiff’s Allegations 11 Plaintiff is a civil detainee currently housed at DSH-Coalinga in Coalinga, California, 12 where the events in the complaint are alleged to have occurred. Plaintiff is an active participant 13 in the Sex Offender Treatment Program (“SOTP”) at DSH-Coalinga, which is the only way for a 14 patient that is committed to be released from an indeterminate civil commitment. Plaintiff names 15 the following defendants: (1) DSH; (2) DSH-Coalinga; (3) Stephanie Clendenin, Acting Director 16 of DSH; (4) Brandon Price, Executive Director of DSH-Coalinga; (5) Francis Hicks, Hospital 17 Administrator of DSH-Coalinga; and (6) Matthew Zelt, Director of Central Program Services at 18 DSH-Coalinga.1 19 Plaintiff alleges as follows: 20 Defendants at DSH maintain five facilities: DSH – Atascadero, DSH-Coalinga, DSH – 21 Napa, DSH – Metropolitan, and DSH – Patton. 22 DSH-Coalinga is certified as a State Hospital, and licensed as an Acute Care Psychiatric 23 Hospital. DSH-Coalinga houses Plaintiff, and other patients committed under the Welfare and 24 Institutions Code (“WIC”) §§ 6602 and 6604; Penal Code §§ 1962, 2972, and 2684, along with 25 1 Plaintiff also named John and Jane Does 1–25 who are employees of DSH, and John and Jane 26 Does 1–25 who are employees of DSH – Coalinga. (ECF No. 1, p. 3.) The undersigned has 27 recommended that these defendants be dismissed for failure to provide identifying information as required by Federal Rule of Civil Procedure 4(m). (ECF No. 46.) Those findings and 28 recommendations are currently pending before the assigned District Judge. 1 other commitments. 2 Plaintiff, as a civilly detained patient under the Sexually Violent Predator Act (“SVPA,” 3 WIC § 6600, et seq.), is without any other ways or means to obtain educational opportunities as a 4 dependent adult under the dependent adult act. Defendants have deliberately removed/denied 5 educational treatment services, and hindered the release of hundreds of patients, violating 6 Plaintiff’s constitutional and civil rights to educational services. Plaintiff is entitled under the 7 Fourteenth Amendment Due Process Clause for the state to provide civilly committed persons 8 with access to mental health treatment services, according to the SVPA and the Legislature’s 9 intent, thus giving them a realistic opportunity to be cured and released. Adequate and effective 10 treatment is constitutionally required because, absent treatment, and the necessary educational 11 services, the individuals could be held indefinitely as a result of their mental illness. 12 Therefore, Plaintiff alleges that educational services, like vocational services, are an 13 essential part of treatment at DSH-Coalinga, because some of the SOTP that is offered to 14 individuals would need at least three or four years of college education to understand the words, 15 workbooks, and basic definitions, meanings, and terms necessary to advance within the SOTP. 16 At least over 50% of individuals committed to DSH-Coalinga under the SVPA do not 17 have a high school diploma or GED. There are many individuals who participate in the SOTP, 18 who have grave learning disabilities, and some of them cannot read any of the material for the 19 SOTP, nor are they able to write. 20 Some individuals who have grave developmental disabilities who cannot understand the 21 work in SOTP have been turned away and denied enrollment in the SOTP, while others are 22 assigned to a mentoring class. Hence, the educational services, and these types of programs in the 23 department, are essential to anyone who is participating in the SOTP. 24 On or about January 2012, adult basic educational classes, special education classes, and 25 pre-GED and GED classes were removed from DSH-Coalinga, by Defendants and their 26 colleagues. The reason given was a “cost saving” measure. 27 However, in 2012, limited adult basic education, adult special education, and pre- 28 GED/GED programs remained intact at all the other four DSH facilities (Atascadero, Napa, 1 Metropolitan, and Patton). 2 Furthermore, from January 2012 to present, all teaching positions at DSH-Coalinga were 3 eliminated. Teachers were financed, then retrained, then reassigned to facilitate other DSH- 4 Coalinga treatment groups to affect savings, such as SOTP treatment groups, for the State’s 5 financial greed. Plaintiff alleges that this is a clear indicator that the DSH policies were 6 calculated to the detriment and discrimination of Plaintiff and others similarly situated. 7 Point 1: Plaintiff and Other Patients at DSH-Coalinga are Entitled to Education 8 Plaintiff and other patients were, and are, sent to DSH for care, treatment, and 9 rehabilitation. Education is core, and an integral part of that is directly linked to a patient’s 10 rehabilitation. Adequate and effective treatment is constitutionally required because, absent 11 treatment, individuals could be held indefinitely. The State of California Legislature and Courts 12 require the State to treat, educate, and rehabilitate the patient prior to returning the patient back 13 into society for a safe and secure reintegration. 14 Plaintiff and other patients similarly situated at DSH-Coalinga with mental disabilities or 15 developmental disabilities are entitled, as dependent adults, “to participate in publicly supported 16 education” pursuant to the Patient’s Bill of Rights. (See California Code of Regulations, Title 9, 17 § 880, et seq.) 18 Developmentally disabled patients at DSH-Coalinga are entitled to publicly supported 19 education, and are “even more protected” pursuant to the Developmentally Disability Act. (See 20 Title 42 U.S.C. § 15001, et seq., entitled “Developmentally Disability Act.”) 21 As a matter of policy, procedure, and practice, even California Department of Corrections 22 and Rehabilitation (“CDCR”) prisoners are provided with Adult Basic Educational services. 23 Therefore, as civil detainees, Plaintiff and others similarly situated are mandated to be 24 provided with adequate education, and effective treatment is constitutionally required because, 25 absent treatment, individuals could be held indefinitely as a result of their mental illness. This is 26 because the purpose of confinement is not punitive. The state must also provide the civilly 27 committed with more consideration to their treatment and conditions of confinement than 28 criminals, whose conditions of confinement are designed to punish. The state must provide 1 civilly committed persons treatment in the less restrictive environment, and this includes Adult 2 Basic Educational Services that are essential for advancement in the SOTP, and successful 3 reentry back into society. 4 Plaintiff and other patients similarly situated at DSH-Coalinga are being denied the right 5 to basic education, along with the right to incorporate pre-GED/GED, adult special education, 6 adult basic education, and special education into treatment plans. As opposed to the policy and 7 practices of other DSH facilities, where patients are effectively reintegrated back into society 8 after treatment. 9 The DSH State Evaluators under the SVPA routinely evaluate Plaintiff and other patients 10 at DSH-Coalinga, using the Static 99, and other mental health tools like lack of education or 11 failure to complete the WIC § 6600, et seq. and the SOTP, as a reason not to release. Thus, not 12 addressing education has caused a negative evaluation that hinders Plaintiff’s and other patients’ 13 ability to gain their release back into society. 14 Plaintiff alleges the harm is overwhelming and insurmountable, resulting in Plaintiff’s 15 continued incarceration, and that of other patients at DSH-Coalinga who are being held 16 indefinitely, making the entire SVPA punitive, a form of State economic fraud, financial greed 17 via the stigma of the SVPA, and denial of educational services. 18 Part of Defendants’ own Mission Statement and Strategic Plan states, “DSH is to provide 19 evaluation, and treatment in a safe and responsible manner, seeking innovation, and excellence in 20 state hospital operations, across a continuum of care and settings. . . .” (See Exhibit 1.) 21 Defendants, from 2012 to present, have failed in their policies, practices, and procedures, 22 to make any Budget Change Proposals (“BCP”) requesting additional funding for education or 23 teachers at DSH-Coalinga to replace those eliminated as cost savings measures. This has harmed 24 and created a treatment obstacle for SOTP patients under the SVPA, and has been a detriment to 25 Plaintiff and others in the DSH-Coalinga patient population. (See Exhibit 2.) 26 DSH-Coalinga knew by converting these teachers to behavior specialists, they would end 27 up facilitating the SOTP groups and receive a greater value of state and federal funds. 28 /// 1 Plaintiff alleges and also believes that the following Federal (CRIPA) lawsuit by the 2 United States Attorney General’s Office (2006), wherein Defendants (formerly known as 3 “Department of Mental Health”) were found liable, in addition to the Defendants having likewise 4 found by State Department of Finance auditors to be in deficit of $166 million (2011), 5 subsequently claimed cost saving measures were achieved by cutting DSH-Coalinga’s patient 6 educational programs, which was deliberate, and counter productive to the long term care of 7 patients. (See Exhibit 3.) 8 After diligent research, Plaintiff believes that the site-specific cut of funds, and removal of 9 educational services from DSH-Coalinga alone was financially irresponsible, and motivated for 10 Defendants’ financial gain and their long term goals of keeping SVPA patients confined for 11 financial and punitive purposes. (See Exhibit 4.) 12 Point 2: It is Discriminatory 13 Plaintiff and other patients similarly situated at DSH-Coalinga with mental disabilities or 14 developmental disabilities, are entitled to education, and are to be provided with equal access. 15 These equal protections and accommodations for educational services are made available to all 16 other patients in the other four DSH facilities. 17 Other DSH facilities have had education cuts, while still providing the minimal benefits of 18 education. However, at DSH-Coalinga, education was eliminated. This was done to harm and to 19 the detriment of Plaintiff and others similarly situated. Defendants have engaged in 20 discrimination and the denial of equal protection by its policies, practices, and procedures. 21 Defendants have been willfully aware of such harmful practices. DSH deliberately excluded 22 education at DSH-Coalinga, where Plaintiff resides, for financial gain and to punitively effect its 23 patients, because of their classification as Sexually Violent Predators. 24 Plaintiff and other patients at DSH-Coalinga are similarly situated to patients housed at 25 other DSH facilities. There is no commitment type that is housed exclusively within DSH- 26 Coalinga, therefore Plaintiff alleges that a reasonable conclusion can be formed that DSH and 27 DSH-Coalinga officials deliberately excluded the SVPA patients from educational services. 28 /// 1 Plaintiff alleges that the elimination of basic adult education, adult special education, and 2 pre-GED/GED programs by Defendants is clearly arbitrary, discriminatory, and denies equal 3 protection of the law, thus harming Plaintiff and others in like situations when it comes to the 4 patients’ required assessments, evaluations, and SOTP treatment and ability to reenter society 5 safely. 6 Defendants knew, or should have known that that mandated educational programs that 7 they eliminated did cause, and will continue to cause harm, and be a direct detriment to Plaintiff 8 and others in like situations. Defendants continue to violate the California Unruh Civil Rights 9 Act along with the federal civil rights of Plaintiff, and others in like situations, due to their failure 10 to provide reasonable and mandated educational services. (See Exhibit 5; see also Exhibit 6.) 11 Point 3: DSH Defendants Acted with Deliberate Indifference 12 As amended in 2012, it was the legislature’s intent that DSH shall not eliminate or 13 significantly reduce adult basic education. Yet this was done to harm and hinder Plaintiff, and 14 others in like situation, specifically in the rehabilitation of patients through the SOTP, for reentry 15 back into society. 16 DSH receives California State Lottery funding for education at the other four DSH 17 facilities. DSH-Coalinga initially received funding as well. Plaintiff states that it is unknown if 18 these funds were diverted, but alleges that we know they were deliberately excluded by calculated 19 action of the Defendants. (See Government Code § 8880.5; Appendix A of Title 9 § 400.) 20 As early as December 21, 2011, Plaintiff alleges that it was learned that DSH was about to 21 remove its education programs. This was when Patient Scott Ewers contacted DSH-Coalinga 22 Civil Detainee Advisory Council (“CDAC”) and filed a patient request to keep patient education, 23 showing the removal would negatively affect him and the rest of the DSH-Coalinga population. 24 (See Exhibit 7; Exhibit 8.) 25 However, Defendants equivocated and misled Patient Ewers with deceptive responses, 26 and their ability to be successful in their SOTP treatment resulting in harm to his and other 27 patients’ civil rights, including their sustentative right to be free from confinement, and placed 28 back into society safely. 1 On February 21, 2012, a Proposal Progress Report was issued by CDAC, and noted 2 comments by former DSH-Coalinga Chief of Psychology, Dr. Alan Azizian, and Dr. Jerry 3 Kasdorf, which fully supported keeping education, and its importance for treatment. (See Exhibit 4 9.) However, Defendants ignored DSH-Coalinga’s own professional leadership 5 recommendations by initiating policies, practices, and procedures to delay, deny, and divert 6 educational funds and programs, to the detriment of Plaintiff and others in a like situation. (See 7 Exhibit 10.) 8 On January 31, 2012, a CDAC memorandum was sent to DSH-Coalinga Treatment 9 Oversight Committee Members asking to keep Literacy, GED, and other programs available as 10 treatment. (See Exhibit 11.) 11 Subsequently, a proposal written by patients and submitted to Executive Staff outlined 12 cost saving options, and the importance of keeping education to lower criminal recidivism. (See 13 Exhibit 11.) 14 On May 16, 2012, a Treatment Needs Oversight Committee meeting was held, wherein 15 DSH-Coalinga Central Program Services manager Reimi Smith stated: “Keep education 16 department open so that the individuals who want to learn can.” (See Exhibit 12.) 17 At the next meeting with CDAC, DSH-Coalinga former Executive Director Audrey King 18 stated: “The only academic programs that will be eliminated are ‘special education’ courses due 19 to lack of staff trained in Special Education. Adult Education will continue.” (See Exhibit 13.) 20 Plaintiff alleges that this proves not only the State’s intent to hinder the DSH-Coalinga patient 21 population’s release, but that the teachers DSH-Coalinga had were deliberately converted from 22 teachers to SOTP facilitators for financial gain. 23 Defendants acted under the color of law, have acted arbitrarily, and with deliberate 24 indifference to the rights of Plaintiff, and all others in like situation, thereby contributing to this 25 harm by its policies, practices, and procedures. This has caused uneducated patients to be 26 delayed in their SOTP treatment and ability to be treated or to complete the SOTP to gain their 27 release back into society safely. 28 /// 1 Defendants acted with negligence in failing to properly train all DSH-Coalinga personnel 2 in their duties and obligations to Plaintiff and all others in like situation, and their civil and 3 constitutional rights to receive education, due to their failure to provide not only basic education, 4 but special education. Due to the patient’s mental illness or identified disabilities, DSH-Coalinga 5 is obligated to treat and afford them an opportunity to be released. 6 Defendants knew or should have known that the mandated educational programs that they 7 eliminated did cause, and will continue to cause harm and detriment to Plaintiff and all others in 8 like situation. 9 As relief, Plaintiff requests appointment of counsel, declaratory and injunctive relief, and 10 compensatory and punitive damages. 11 V. Defendants’ Motion to Dismiss 12 A. Defendants’ Arguments 13 Defendants argue that the Eleventh Amendment precludes this suit against the two named 14 state agencies, DSH and DSH-Coalinga. Plaintiff’s Section 1983 claim against the remaining 15 defendants cannot proceed because a civil detainee does not have a federal right to an education. 16 The complaint does not properly allege a substantive due process nor an equal protection 17 violation under the Fourteenth Amendment. 18 The state law claims are also defective, as Plaintiff fails to allege the necessary protected 19 status to state a claim under the California Unruh Civil Rights Act. Even if such protected status 20 is alleged, the Unruh Act is limited to “business establishments,” and does not permit suit against 21 a state agency and its officials. Plaintiff’s claim under the Patient Bill of Rights, a state 22 regulation, does not establish any enforceable right to an education. The Developmental 23 Disabilities Assistance and Bill of Rights Act of 2000 does not provide any private right of action. 24 The federal and state law claims, apparently arising from events commencing in 2012, are 25 also barred by the statute of limitations. Absent a state government claim, Plaintiff cannot claim 26 monetary damages for violation of the Unruh Act. 27 Defendants contend that the Court should dismiss the complaint without leave to amend. 28 /// 1 B. Plaintiff’s Opposition 2 Plaintiff argues that Defendants fail to acknowledge his Fourteenth Amendment due 3 process claims, and that he has been denied not just basic and special education mandated under 4 state law, but federal law as well, which prevents completion of legislatively mandated SOTP 5 treatment. The Eleventh Amendment does not bar recovery against Defendants DSH and DSH- 6 Coalinga because they are governed by state law mandating treatment, rehabilitation, and 7 education, and the Court can establish its own authority over a California State Hospital due to 8 the receipt of federal funding. 9 Plaintiff has also been discriminated against as compared to patients continuing to receive 10 treatment, rehabilitation, and education at the other four DSH facilities. Plaintiff’s claims under 11 the California Unruh Civil Rights Act are proper because Plaintiff alleges that DSH and DSH- 12 Coalinga act with third party business establishments, including but not limited to, contracting 13 their employees. Plaintiff again alleges that the state took educational teachers and funds for 14 education and retrained them to deny Plaintiff and others similarly situated of their due process 15 rights and liberty interests. 16 Plaintiff contends that Defendants’ actions are ongoing and commenced in 2012, but 17 Plaintiff was not aware of them until the filing of the complaint. Plaintiff is not barred by the 18 two-year limitations period as he is currently still suffering from Defendants’ acts today. Plaintiff 19 relies on Exhibit 3 attached to his opposition and argues that he has been illegally committed to 20 DSH custody. 21 DSH has created a condition of confinement more punitive than the California 22 Department of Corrections, and patients under their care do not even receive the benefits a 23 prisoner receives when placed in California Department of Corrections custody. These conditions 24 amount to involuntary servitude for the purpose of treatment under the SVPA. 25 Plaintiff requests that the Court deny Defendants’ motion to dismiss, grant Plaintiff’s 26 motion for appointment of counsel, and set this matter for trial. 27 /// 28 /// 1 C. Defendants’ Reply Brief 2 Defendants contend that Plaintiff does not show that any of the causes of action can 3 proceed. Plaintiff’s claims against DSH and DSH-Coalinga are foreclosed by the Eleventh 4 Amendment, his federal and state law claims cannot overcome the two-year limitations period 5 because his assertions of delayed discovery and continuing accrual are belied by the facts in the 6 complaint, and the claims are substantively defective. Plaintiff has not opposed the remaining 7 arguments raised in the motion to dismiss and the motion should be granted as unopposed as to 8 those claims. Plaintiff’s complaint should be dismissed without leave to amend. 9 VI. Discussion 10 A. Request for Judicial Notice and Exhibits Attached to Plaintiff’s Opposition 11 Plaintiff requests that the Court take judicial notice of Exhibits 1–17 attached to the 12 complaint. (ECF No. 1, pp. 17–94.) 13 Rule 201(b) of the Federal Rules of Evidence provides that a court may judicially notice a 14 fact that is not subject to reasonable dispute because it: (1) is generally known within the trial 15 court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 16 accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). Upon review of these exhibits, 17 the Court finds that the unsupported allegations and unverified documents are not the type of facts 18 that are judicially noticeable. Plaintiff’s request for judicial notice is therefore denied. However, 19 the documents have been considered to the extent they are incorporated into Plaintiff’s complaint 20 by reference. In addition, the Court has considered the allegations raised in Plaintiff’s 21 declaration, signed under penalty of perjury. (ECF No. 1, pp. 93–94.) 22 Defendants object to Plaintiff’s proffered Exhibits 1 and 3 attached to his opposition to 23 Defendants’ motion to dismiss as irrelevant. (ECF No. 45, pp. 12–13, 27–135.) Exhibit 1 is an 24 order from the San Francisco County Superior Court dated October 20, 2006 committing Plaintiff 25 to Atascadero State Hospital for an indeterminate term following a jury finding that Plaintiff is a 26 Sexual Violent Predator. (Id. at 13.) Exhibit 2 appears to be a petition for a writ of habeas corpus 27 filed with the California Court of Appeal, First Appellate District and a compendium of minute 28 orders, transcript, and other filings attached as exhibits. (Id. at 27–135.) 1 Although neither party has requested the Court take judicial notice of the exhibits attached 2 to Plaintiff’s opposition, the Court finds it appropriate to take judicial notice of Exhibits 1 and 3, 3 to the extent that they are state court records. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th 4 Cir. 2007); Kasey v. Molybdenum Corp. of Amer., 336 F.2d 560, 563 (9th Cir. 1964). 5 As both Exhibits 1 and 3 provide support for the fact of Plaintiff’s status as a civil 6 detainee, the Court rejects Defendants’ objection to these exhibits as irrelevant. However, with 7 respect to Exhibit 1, on a Rule 12(b)(6) motion to dismiss, when a court takes judicial notice of 8 another court’s opinion, it may do so “not for the truth of the facts recited therein, but for the 9 existence of the opinion, which is not subject to reasonable dispute over its authenticity.” Lee v. 10 City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001), quoting Southern Cross Overseas 11 Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426–27 (3rd Cir. 1999). 12 Similarly, the Court takes judicial notice of the existence of Exhibit 3, rather than the facts 13 purportedly recited therein. 14 The Court also finds it appropriate to take judicial notice of Plaintiff’s Exhibit 2. 15 Defendants have not objected to this exhibit, and rely on it in their reply brief. (ECF No. 48, p. 16 4.) Moreover, the information is publicly available on the DSH website.2 The Court may take 17 judicial notice of public information and state agency records. See In re Yahoo Mail Litig., 7 F. 18 Supp. 3d. 1016, 1024 (N.D. Cal. 2014) (court may take judicial notice of information on “publicly 19 accessible websites” not subject to reasonable dispute); Louis v. McCormick & Schmick 20 Restaurant Corp., 460 F. Supp. 2d. 1153, 1155 n.4 (C.D. Cal. 2006) (court may take judicial 21 notice of state agency records). 22 B. Legal Standard on Motion to Dismiss 23 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 24 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 25 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 26 27 2 See DSH Budget Information; Fiscal Year 2021-2022; 2012-22 Budget Act; DSH 2021-22 Budget Act Highlights, https://www.dsh.ca.gov/About_Us/DSH_Budget_Information.html (last 28 accessed February 24, 2023). 1 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 2 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 3 McKeithen, 395 U.S. 411, 421 (1969); Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 4 1999). In ruling on the motion, the court “may generally consider only allegations contained in 5 the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” 6 Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and 7 quotation marks omitted). The court may also consider documents incorporated by reference into 8 the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 9 In general, pro se pleadings are held to a less stringent standard than those drafted by 10 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe 11 such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). 12 However, a court’s liberal interpretation of a pro se complaint may not supply essential elements 13 of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th 14 Cir. 1982). Also, the court need not credit “naked assertions,” “labels and conclusions” or “a 15 formulaic recitation of the elements of a cause of action.” See Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 555–57 (2007). 17 C. Eleventh Amendment 18 “The Eleventh Amendment bars suits for money damages in federal court against a state, 19 its agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public 20 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, the Eleventh Amendment prohibits federal 21 courts from hearing a Section 1983 lawsuit in which damages or injunctive relief is sought against 22 a state, its agencies (such as CDCR) or individual prisons, absent “a waiver by the state or a valid 23 congressional override. . . .” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The 24 Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, ‘an 25 arm of the state,’ its instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of 26 Lodi, Cal., 302 F.3d 928, 957 n.28 (9th Cir. 2002) (internal quotation and citations omitted), cert. 27 denied, 538 U.S. 961 (2003). The Department of State Hospitals, and by extension, the 28 Department of State Hospitals – Coalinga, are state agencies. See, Coleman v. Brown, 2013 WL 1 6071977, at *2 n.4 (E.D. Cal. Nov. 13, 2013) (“The Department of State Hospitals (DSH) is the 2 current name for the state agency that provides inpatient mental health hospital care for CDCR 3 inmates.”) 4 Contrary to Plaintiff’s assertion, the mere receipt of federal funds cannot establish that a 5 State (or its agencies) has consented to suit in federal court. Atascadero State Hosp. v. Scanlon, 6 473 U.S. 234, 247 (1985). Thus, the fact that DSH or DSH-Coalinga receives funding from the 7 federal government, under the IDEA or any other statute cited by Plaintiff, is not sufficient to find 8 that they have consented to this suit. This pleading deficiency cannot be cured. 9 D. Statute of Limitations 10 Section 1983 contains no specific statute of limitations. Therefore, federal courts apply 11 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 12 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. Shedler, 13 192 F.3d 911, 914 (9th Cir. 1999). California’s statute of limitations for personal injury actions is 14 two years. Cal. Civ. Proc. Code § 335.1; Jones, 393 F.3d at 927; Maldonado, 370 F.3d at 15 954−55. 16 California’s Unruh Civil Rights Act similarly does not have a single statute of limitations. 17 Gatto v. Cty. of Sonoma, 98 Cal. App. 4th 744, 759 (2002); Kemp v. Regents of Univ. of Cal., No. 18 C-09-4687 PJH, 2010 WL 2889224, at *6 (N.D. Cal. July 22, 2010). A two-year statute of 19 limitations applies to causes of action under provisions evolving from common law, such as 20 personal injury actions, and a three-year statute of limitations applies to other causes of action. 21 Gatto, 98 Cal. App. 4th at 759; Kemp, 2010 WL 2889224, at *6. 22 Federal law determines when a civil rights claim accrues, and “[u]nder federal law, a 23 claim accrues when the plaintiff knows or should know of the injury that is the basis of the cause 24 of action.” Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (citation omitted); 25 Maldonado, 370 F.3d at 955; Fink, 192 F.3d at 914 (constitutional claim accrues on the date 26 plaintiff knew or should have known of the injury which forms the basis of the cause of action). 27 In actions where the federal court borrows the state statute of limitations, courts should 28 also borrow all applicable provisions for tolling the limitations found in state law. Jones, 393 1 F.3d at 927. Under California law, the two-year statute of limitations is tolled during the time a 2 prisoner pursues his administrative remedies and is potentially tolled up to an additional two 3 years if Plaintiff is incarcerated for a term of less than life. Douglas, 567 F.3d at 1109 (“State law 4 governs the statute of limitations period for § 1983 suits and closely related questions of tolling. 5 Section 1983 claims are characterized as personal injury suits for statute of limitations purposes” 6 (citations omitted)); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he applicable statute 7 of limitations must be tolled while a prisoner completes the mandatory exhaustion process.”); Cal. 8 Civ. Proc. Code §§ 335.1, 352.1(a). 9 As noted above, Plaintiff is a civil detainee, not a prisoner. By its terms, Section 352.1 10 does not apply to civil detainees. See Jones, 393 F.3d at 927 (“the literal language of the statute 11 does not cover Jones, a civil detainee”). Nevertheless, by applying California’s doctrine of 12 equitable tolling, the Ninth Circuit has found that “a continuously confined civil detainee who has 13 pursued his claim in good faith” may take advantage of tolling. Id. at 930; see also Fink v. 14 Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (requirements for equitable tolling in California). The 15 Ninth Circuit found that “ ‘actual, uninterrupted incarceration is the touchstone’ for applying 16 California’s tolling provision for the disability of imprisonment,” Jones, 393 F.3d at 928 (quoting 17 Elliott v. City of Union City, 25 F.3d 800, 803 (9th Cir. 1994)), and that the rationale behind the 18 rule “applies with equal force to the case of an individual continuously detained under civil 19 process,” id. The Ninth Circuit observed that, “[l]ike criminal inmates, civil detainees litigate 20 under serious disadvantages. The civilly confined are limited in their ability to interview 21 witnesses and gather evidence, their access to legal materials, their ability to retain counsel, and 22 their ability to monitor the progress of their lawsuit and keep abreast of procedural deadlines.” 23 Id. at 929. 24 Defendants contend that Plaintiff has been committed to DSH since 1998. (ECF No. 42-1, 25 p. 12 (citing Felix v. Hennessy, 600 F. App’x. 589, 590 (9th Cir 2015) (referring to Plaintiff’s 26 1998 commitment proceeding); Felix v. Hennessy, 2010 WL3199172, at *1 (N.D. Cal. Aug. 11, 27 2010) (same)).) Plaintiff appears to confirm Defendants’ assertions regarding the date of his 28 original commitment. (ECF No. 45, pp. 7–8.) Moreover, the Court has taken judicial notice of 1 Exhibit 1 of Plaintiff’s opposition, confirming that Plaintiff was civilly committed by the San 2 Francisco County Superior Court at least as early as October 20, 2006. (Id. at 13.) 3 According to Plaintiff’s allegations in the complaint, adult basic educational classes, 4 special education classes, and Pre GED and GED classes and all teaching positions were removed 5 from DSH-Coalinga on or about January 2012. (ECF No. 1, p. 5.) Plaintiff further alleges that 6 “as early as the 21st of December 2011, it was learned that the CDSH was about to remove its 7 education programs.” (Id. at 10.) Plaintiff does not specify in the complaint who learned this 8 information at this time. Defendants state, and nothing in Plaintiff’s complaint or opposition 9 contradicts this assertion, that Plaintiff was a resident at the time the educational programs were 10 eliminated in January 2012. (ECF No. 48, p. 3.) Defendants therefore argue that Plaintiff’s claim 11 accrued with the elimination of the educational programs in January 2012. However, in his 12 opposition, Plaintiff states that he was not aware of the actions of Defendants “until the filing of 13 the said complaint,” (ECF No. 45, p. 7), which was signed and dated December 16, 2019, (ECF 14 No. 1, p. 16). Plaintiff does not otherwise explain why he was unable to learn this information 15 during the eight years between the programs’ elimination and the filing of the complaint. 16 To rely on the delayed discovery of a claim, a plaintiff “must specifically plead facts to 17 show (1) the time and manner of discovery and (2) the inability to have made earlier discovery 18 despite reasonable diligence.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808 (2005) 19 (quoting McKelvy v. Boeing North American, Inc., 74 Cal. App. 4th 151, 160 (1999)). The 20 plaintiff bears the burden to “show diligence,” and “conclusory allegations” will not withstand 21 dismissal. Fox, 35 Cal. 4th at 808. Plaintiff has failed to allege any facts regarding the time and 22 manner of his discovery, his inability to have made an earlier discovery, or that he conducted any 23 diligent investigation. The Court therefore rejects his argument as implausible regarding his 24 delayed discovery that his education courses were eliminated, and similarly finds that Plaintiff’s 25 conclusory allegations are insufficient to invoke any theory of equitable tolling. 26 To the extent Plaintiff argues that he is subject to ongoing violations of his rights due to 27 the 2012 program elimination, the Court also rejects this theory. The Ninth Circuit has 28 recognized two applications of the continuing violations doctrine: (1) “a series of related acts, one 1 or more of which falls within the limitations period,” known as the serial acts branch; and (2) “the 2 maintenance of a discriminatory system both before and during [the limitations] period,” known 3 as the systematic branch. Gutowsky v. Cty. of Placer, 108 F.3d 256, 259 (9th Cir. 1997) (quoting 4 Green v. L.A. Cty. Superintendent of Schs., 883 F.2d 1472, 1480 (9th Cir. 1989)). The serial acts 5 branch is inapplicable to this case, where Plaintiff alleges a single act that led to continuing and 6 ongoing violations of his rights. The systematic branch originally allowed a plaintiff to recover 7 for acts that occurred prior to the limitations period as long as (1) those acts were conducted 8 pursuant to a policy or practice that remained in effect within the statute of limitations period and 9 (2) the plaintiff remained subject or susceptible to the policy with the limitations period. See 10 Gutowsky, 108 F. 3d at 260. 11 The Ninth Circuit has since relied upon the Supreme Court’s decision in Nat’l R.R. 12 Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), to abrogate the serial acts branch of the 13 continuing violations doctrine for § 1983 claims, see Carpinteria Valley Farms, Ltd. v. Cty. of 14 Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003), as well as the systematic branch, see Lyons v. 15 England, 307 F.3d 1092, 1107 (9th Cir. 2002). After the decision in Morgan, the Ninth Circuit 16 has held that “little remains of the continuing violation doctrine,” and with a limited exception for 17 class-wide pattern-or-practice claims, the Ninth Circuit has “consistently refused to apply the 18 systematic branch to rescue individualized claims that are otherwise time-barred.” Bird v. Dep’t 19 of Human Servs., 935 F.3d 738, 748 (9th Cir. 2019) (per curiam). 20 Plaintiff’s claims are time barred. Plaintiff cannot use a class wide pattern-or-practice to 21 rescue his time-barred individual claims. Despite his attempts to raise claims on behalf of other 22 detainees, Plaintiff may not represent the interests of a class, see infra Section V.F. The 23 continuing violations doctrine is therefore also inapplicable, and Plaintiff’s remaining 24 individualized claims under the Unruh Act and section 1983 are barred by the statute of 25 limitations. 26 E. Right to Education 27 Even assuming Plaintiff’s claims are not barred by the statute of limitations, there is no 28 federal constitutional right to a public education. See Plyler v. Doe, 457 U.S. 202, 221 (1982); 1 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). While “the Fourteenth 2 Amendment Due Process Clause requires states to provide civilly-committed persons with access 3 to mental health treatment that gives them a realistic opportunity to be cured and released,” Sharp 4 v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000), Plaintiff states that he is an active participant in 5 the SOTP, “which is the only way for a patient that is committed to be released,” (ECF No. 1, p. 6 2). 7 Plaintiff argues that educational services are also an essential part of treatment, because 8 some of the SOTP requires at least three or four years of college education to understand the 9 materials necessary to advance within the program. (ECF No. 1, p. 4.) Plaintiff further alleges 10 that many individuals committed to DSH-Coalinga under the SVPA do not have a high school 11 diploma or GED, have learning disabilities, and cannot read or write. (Id. at 4–5.) At no point in 12 the complaint, however, does Plaintiff allege that he personally suffers from any learning 13 disability or difficulty understanding the SOTP curriculum. (See id. at 1–16, 93.) Furthermore, 14 his pleadings in this action, apparently prepared with no assistance from other individuals, 15 contradict any assertion that Plaintiff is unable to read or write. 16 Even taking as true that the eliminated educational programs are necessary for individuals 17 with learning disabilities or less than a high school degree to complete the SOTP, there is no 18 indication that Plaintiff is included in this group. To satisfy constitutional standing requirements, 19 “a plaintiff must show (1) [he] has suffered an ‘injury in fact’ that is (a) concrete and 20 particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly 21 traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely 22 speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. 23 v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000). Thus, even if Plaintiff’s claims were 24 not barred by the applicable statute of limitations, or if a federal constitutional right to education 25 existed, his claims would fail because Plaintiff has not alleged and cannot allege that his own 26 rights were violated by the elimination of the educational programs. 27 F. No Standing to Sue on Behalf of Other Detainees 28 Insofar as Plaintiff is attempting to assert claims on behalf of other detainees regarding 1 alleged harm suffered by the elimination of DSH-Coalinga’s general educational programs, he 2 may not do so. Plaintiff may only represent his own legal interests; he may not represent the legal 3 interests of other individuals. “A litigant appearing in propria persona has no authority to 4 represent anyone other than himself” in a civil rights action. Russell v. United States, 308 F.2d 5 78, 79 (9th Cir. 1962); see also Weaver v. Wilcox, 650 F.2d 22, 27 (3rd Cir. 1981) (“[A]n inmate 6 does not have standing to sue on behalf of his fellow prisoners. Rather, the prisoner must allege a 7 personal loss and seek to vindicate a deprivation of his own constitutional rights.” (citations 8 omitted.)). “Although a non-attorney may appear in propria persona in his own behalf, that 9 privilege is personal to him. He has no authority to appear as an attorney for others than 10 himself.” C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987) (citations omitted). 11 G. Futility of Amendment 12 For the reasons stated, Plaintiff’s complaint fails to state a cognizable claim for relief. 13 Plaintiff’s claims against Defendants DSH and DSH-Coalinga are barred by the Eleventh 14 Amendment, Plaintiff’s remaining claims are barred by the statute of limitations, and even if 15 Plaintiff could overcome those deficiencies, Plaintiff has failed to allege that he has suffered any 16 harm as a result of Defendants’ actions. The Court further finds that, in light of these deficiencies 17 and Plaintiff’s failure to oppose Defendants’ remaining arguments, it is unnecessary to address 18 the remaining issues raised in the motion to dismiss. 19 “Under Federal Rule of Civil Procedure 15(a), leave to amend shall be freely given when 20 justice so requires. However, the district court may exercise its discretion to deny leave to amend 21 due to undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure 22 deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . , and 23 futility of amendment.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010) 24 (citations and internal quotation marks and brackets omitted); see also Lopez v. Smith, 203 F.3d 25 1122, 1127 (9th Cir. 2000) (“[I]n dismissing for failure to state a claim under Rule 12(b)(6), a 26 district court should grant leave to amend even if no request to amend the pleading was made, 27 unless it determines that the pleading could not possibly be cured by the allegation of other facts.” 28 (citation and internal quotation marks omitted)). 1 The Court has determined that Plaintiff’s claims are barred by the Eleventh Amendment, 2 the applicable statute of limitations, and for failure to allege any harm as a result of Defendants’ 3 actions. As there is no indication that Plaintiff can plead any additional facts to cure these 4 defects, it would be futile to grant Plaintiff leave to amend. See Platt Elec. Supply, Inc. v. EOFF 5 Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008). 6 VII. Order and Recommendation 7 Accordingly, IT IS HEREBY ORDERED as follows: 8 1. Plaintiff’s request for judicial notice, (ECF No. 1), is DENIED, as described supra, in 9 Section VI.A; and 10 2. Plaintiff’s renewed request for appointment of counsel, (ECF No. 45), is DENIED. 11 12 Further, IT IS HEREBY RECOMMENDED that: 13 1. Defendants’ motion to dismiss, (ECF No. 42), be GRANTED; and 14 2. This action be dismissed, without leave to amend. 15 * * * 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, under 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 18 served with these Findings and Recommendations, the parties may file written objections with the 19 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 20 Recommendations.” The parties are advised that failure to file objections within the specified 21 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 22 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 23 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 26 Dated: February 27, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27 28