Hydrick v. McDaniel

HYDRICK; David Lan Allen James Griffin;

phere; Frank Shaundale Pederson;

Cisneros; Paul Steven Gary Price; Cerniglia; Daniel

Robert Ciancio;

Mrowici; Michael Kenneth Mata;

McClure; Richard Bish James Lee; Fields;

op; Ron Leonard Melvin Price; Jimmy

Pierre; Guth Thomas Jones; Kelly;

rie; Brian Woodrow Riley; Jackson; Fred Bruce

Vashon Danforth; Sammy Page;

Scott; Dean Mitchell; Peters; Grayling

James Anthony Dacayona; Saucedo;

Carlos Salas, al., Plaintiffs-Appel et

Charles

lees, Hunter, DeMorales;

Melvin E. aka/Jon Ernst, Nelson;

Craig Grenda

Defendants-Appellants, Reynolds; McDaniel; Jerry Rob

Robert Penate; Robinson; Mark

ert Samuel Mayberg;

Mahhoney; Stephen Anita Vess;

Judd; Hughеs; Michael Jim Palmer; Townsend; Rocky Mark

Jack Gobbell; Wiley;

Spurgeon; Arnie Jim Kalionzes; Sherrill;

Mark Elaine Alarcon; Mikel; Maire Ba

Glan Jan Knowlton; Margalit;

ruch William Imram; Muller; Dale

Diane Carmel Paladino;

Arnold; Jean Gabriella al.; et Charles

Dansereau William Lefort;

Thiel; Douglas Robert Arnold

Schwarzenegger, Governor of Califor

nia, Defendants. 03-56712.

No. Appeals,

United States Court

Ninth Circuit.

Argued April and Submitted 2005. Aug.

Filed Murphy, Deputy Attorney

Randall R. CA, General, Angeles, Los for the defen- dants-appellants. Davis, Watkins,

Kathryn M. Latham & CA, plaintiffs-appel- for the Angeles, Los lees. SCHROEDER, M.

Before: MARY Judge, HARRY Chief PREGERSON TROTT, Judges. Circuit STEPHEN S. PREGERSON; Opinion by Judge Partial Partial Concurrence and Dissent by Judge TROTT.

ORDER opinion published this case (9th Cir.2006), F.3d 676 is withdrawn and replaced by opinion the new and dissent concurrently filed with this order. Judge Judge Chief Schroeder and Pre- gerson deny appellant’s petition voted to panel rehearing rehearing for and for en Judge grant banc. Trott voted to petition panel rehearing for and recom- granting petition rehearing mended for full en banc. The court has been advised banc, rehearing of the for en petition judge requested no of the court has en 35(b). P. Health rehearing. R.App. See Fed. evaluate convicts committed banc who rehearing and for petitions panel predicate offenses at least six months be- DENIED. rehearing en banc are those complete fore convicts their sen- § If tences. See id. those two de- petitions rehearing further will No partments agree might the convict entertained. be (or SVP, qualify attorney as an the district OPINION county counsel for the in which the evalu- convicted) person peti- ated was file a PREGERSON, Judge: Circuit 6601(i). § tion for commitment. See id. If Plaintiffs-Appellees represent class SVP, jury finds someone to an civilly approximately six hundred com- civilly person is committed for an indefi- persons awaiting mitted and those com- period nite to commence his criminal after Hospital mitment at Atascadero State §§ sentence is fulfilled. Id. 6602-6604. Sexually pursuant to California’s Violent (“SVP Act”). al- Predators Act сommitted, civilly undergo Once lege that the conditions of their confine- five-phase program. One Phase rights. ment violate their constitutional group consists of that educate sessions injunctive They request declaratory and During SVP about California’s SVP Act. relief, monetary damages. De- as well as One, the par- Phase SVP must attend and fendants filed motion dismiss based ticipate the treatment sessions. If he immunity. largely The dis- not, does his access level2 is reduced and motion, trict court which the denied he is not allowed to advance to Phase Two appeal. juris- Defendants now We addition, program. of the treatment In 1291; § af- diction under 28 U.S.C. we participate SVP’s failure to attend or part part. firm in and reverse in against treatment sessions is him used probable future cause and confinement FACTUAL BACKGROUND hearings. The cannot SVP advance be- Sexually A. Preda- California’s Violent yond signs Phase One unless he a state- tors Scheme acknowledges ment in which he that he Act defines an as a per- SVP SVP an that requires has “illness” “treatment.” sexually son “convicted of a violent offense allege signed statements against two or more victims for which he used them are often as admissions or she received a determinate sentence probable of illness in future and cause diagnosed and who has a mental disorder hearings. confinement person danger to the makes through treat- Phases Two Five i.e., safety “likely health and of others” is “cognitive” plan ment involve treatment. engage sexually in violent criminal be- [to] viewing This treatment includes videos havior.” Cal. & InstCode Welf. 6600(a).1 depict inappropriate § violent or other Department of Correc- Department repugnant tions and the of Mental sexual activities while a odor or Although gender-neutral, privileges. patient may 1. the SVP Act A Level 1 not leave only there was one SVP at the time of patient female his unit without an escort. A Level filing complaint. not She was go leave his unit but cannot to the court- Atascadero, was, therefore, housed patient may yard canteen. A Level 3 or part of the class. Plaintiffs' canteen, library, some access to law courtyard, etc. assigns everyone an level Atascadero access to that establishes access various facilities ap- In March the district court applied to unpleasant other sensation is for the Plaintiffs. pointed pro bono counsel negative association. elicit complaint ap- filed an amended Counsel to a year, Each has a SVP five months later. The De- proximately hearing” to determine wheth- “show cause a motion to dismiss. The fendants filed continued. er his commitment should be raised Eleventh Amend- motion dismiss 6605(a)-(b). If it that the § is found Id. immunity defenses. ment health danger to the SVP continues be denied the motion. The district court safety community, person or of the filed a second amended The Plaintiffs the date of years committed for two from complaint August 2002.4 Both the 6605(e). pe- § finding. Id. Successive complaints al- first and second amended in- can continued riods of commitment leged that the Defendants violated all definitely, completes or until the SVP (1) rights by, inter alia: force- Plaintiffs’ phases Upon five of treatment. successful non-emergency medicating the Plaintiffs Five, con- completion of Phase the SVP is (2) situations; reducing the Plaintiffs’ ac- ditionally supervision released under the privileges cess levels and other as form Department. Mental Health California participate punishment refusing Plaintiffs, “only a handful According to the sessions or retaliation for into Phase of SVPs have been allowed (3) lawsuits; filing putting the Plaintiffs progressed and no has to Phase Four SVP nonthreatening restraints for non- and/or ready for Five or been found to be ha[s] conduct, disruptive including the refusal to protocol.”3 the treatment release under (4) participate therapy; treatment or B. The Lawsuit strip- Current subjecting public the Plaintiffs to (sometimes four-point re- searches while September On the Plaintiffs (5) straints); failing protect the Plain- action, pro filed a se class under U.S.C. by patients tiffs from abuse § against Defendants-Appellants (6) failing pro- employees; Atascadero (Director Mayberg of the Stephen Califor- constitutionally vide the Plaintiffs with sat- Health), A. Department nia of Mental Cal (7) confinement; isfactory conditions of (Director Terhune of the California De- participate in forcing the Plaintiffs to Corrections), DeMorales partment of Jon (8) treatment; denying and the Plaintiffs (former Executive Director at Atascadero treatment, thereby converting adequate (Clinical Ernst Hospital), State Grenda the Plaintiffs’ civil confinement to a de Hospi- Administrator at Atascadero State prison facto extension their sentence. (Senior tal), Craig Psychologist Nelson The Defendants moved to dismiss the Specialist Hospital). at Atascadero State sought injunctive complaint, and declar- second amended on the same relief, in their first motion to atory monetary damages, grounds presented well as as again court denied grounds policies proce- on the that the dismiss. district timely ap- governing their confinement and the motion. The Defendants dures Hospital pealed. vi- The Defendants contend Atascadero State by failing court erred to rule that rights. olate their constitutional district that, argument complaint alleged 3. Al oral it was since 4. The second amended substituted Hunter, (of complaint, Executive Di- the Plaintiffs filed their three Melvin the current hundred) Hospital, people State for Jon over seven committed under rector Atascadero Director, DeMorales, Sexually Act have been the former Executive Violent Predators but no alterations. released. contained substantive Fed.R.Civ,P. Amendment, ment” of claims. state abstention the Eleventh doctrine, qualified immunity 8(a)(2). barr Thus, reviewing when the suffi- Plaintiffs’ suit. ciency of a complaint receiving any before evidence, our task is a limited one. “The

ANALYSIS plaintiff issue is not whether a will ulti- Review A. Standard of mately prevail but whether the claimant is support entitled to offer evidence to review de novo the district We Rhodes, 232, claims.” v. Scheuer 416 U.S. denial of a motion to dismiss. court’s Fund, Ltd., (1974). Advantage 236, 1683, Decker v. 362 F.3d 40 L.Ed.2d 90 (9th Cir.2004). 593, un Immunity 595-96 recognized As we in Kwai Fun Wong v. presents der the Eleventh Amendment States, (9th Cir.2004), United 373 F.3d 952 law, which we review de question novo. qualified immunity a motion to dismiss on Monteith, Demshki v. 255 F.3d See grounds puts po- the court the difficult (9th Cir.2001). To determine if the deciding “far-reaching sition of constitu- immu Defendants are entitled to questions tional governing whether non-existent factual nity, we review de novo law established at the time of was “government record.” Id. at 957. While spе and whether the alleged violation officials have the ... ... to raise alleged cific facts constitute a violation of qualified immunity defense on a motion to Mabe v. Bernar established law. See San dismiss, authority the exercise of that Servs., County Dept. dino Soc. Pub. every not wise choice case.” Id. We Cir.2001). 1101, 1106 justi- applicable policy find that here. The fying qualified immunity motions at this court’s denial of Although district a motion under Federal Rule of Civil Pro stage protect is to officers 12(b)(6) ordinarily appeal- is not cedure discovery pretrial burden of motions. able, immunity a claim for the denial of Pelletier, See Behrens v. judgment final appealable before under In 133 L.Ed.2d 773 the collateral order doctrine and is re case, discovery it appears was d Walker, Morley viewe de novo. See v. complete. almost The Defendants could (9th Cir.1999). All 175 F.3d alle presented this as a motion for sum- accepted fact are gations material mary judgment, and we would have a light true and should be construed developed guide more factual record to most favorable to Plaintiffs. See Resnick However, the De- our decision. because (9th Cir.2000). Hayes, motion is framed as a motion to fendants’ “complaint A should not be dismissed [un dismiss, we must evaluate the merits of 12(b)(6) appears der Rule unless it be ] qualified immunity the Defendants’ de- yond plaintiff prove doubt that the can no know the full extent of the fense before we in claim that support set of facts of the Atascadero, alleged or the rea- abuses relief.” plaintiff would entitle the to or the level policy, son behind Atascadero (9th Davis, Thompson v. 295 F.3d in .2002). of involvement the Defendants had cre- Cir we ating the conditions at Atascadero. As note, again, special difficulty We motion, however, the Defendants’ decide deciding a Defen- the motion to dismiss we are cautious not to eviscerate the no- qualified immunity grounds dant on at this qual- in where pleading tice standard suits pleading the notice stage. Under standard immunity ified is issue. See Galbraith Rules, only plaintiffs of the Federal Clara, plain County state- v. Santa 307 F.3d required give “short Cir.2000) (9th Lib- Cir.2002).5 (9th (quoting 1125-26 EEOC, erty Mut. Ins. v. 691 F.2d Doctrine B. The Law of the Case Cote, (9th v. Cir.1982)); United States Cir.1995) (“[T]he law of F.3d 178 argue that under the The Plaintiffs only a bar when the issue case acts as doctrine, we should not law of the case actually was considered and de- question appeal the merits of the Defendants’ reach court.”). by cided the first motion to the Defendants’ second because by barred the district court’s dismiss was The district court denied both of Defen- of the Defendants’ first motion denial motions to dismiss in one-line or- dants’ The relevant facts are follows: dismiss. Thus, ders. we do not know the district amend after the Plaintiffs filed their first grounds denying the motions. court’s complaint, the Defendants moved ed say that court Nor can we district a claim and for failure to state dismiss any by implication issue decided immunity. The district based court first order. The district could motion, and the Defen court denied any denied either motion for number The Plaintiffs filed a appeal. dants did not procedural or technical reasons unrelated complaint, second amended in which motions. It to the substance of the changed only the name of one of the De that the district court denied the possible The Defendants then moved to fendants. Defendants’ secоnd motion based on the substantially similar to grounds dismiss on doctrine, but, it law of the case is also previous those in the motion. The district decided, in possible that the district court Plain again court denied the motion. The discretion, apply not to the law of the its the Defendants’ second argue tiffs subsequent changes case doctrine due to impermissible motion to dismiss is an “sec law, injustice” or that the “manifest apple” ond bite at the and should be dis given party that would result the new missed under the law of the case doctrine. Alexander, the suit. See United States v. (9th Cir.1997). 874, 876 Because 106 F.3d the law of the case doc “Under cannot determine the for the we bases trine, ordinarily precluded a court is from motions, court’s denial of the district previously reexamining an issue decided apply. “law of the case” does not There- court, court, by higher or a in the the same fore, on the merits. States, appeal we address the same case.” Richardson v. United (9th Cir.1988) (citations Immunity Eleventh Amendment C. omitted). For the law of the case doctrine the Abstention Doctrine apply, question “the issue must have necessary Defendants concede that suits explicitly ‘decided or been ” injunctive declaratory do not previous disposition.’ relief implication [the] Tribe, the Eleventh Amendment under Ex States v. Lummi Indian United 235 violate 12(b)(6) dissenting colleague, point respect 5. With to our of the Rule motion is not to allega- complaint veracity of the Plaintiffs’ Plaintiffs’ states more than "viola- evaluate tions, rights.” speculate extremely or to as to the Defendants’ tions of abstract See Dis- Rather, justifications (quoting Creighton, for their actions. unless sent at 10956 Anderson 635, 639-40, "beyond plaintiff it doubt” that a cannot relief, (1987)). might prove facts that would entitle him to L.Ed.2d 523 The Plaintiffs 12(b)(6) evidentiary provide support their Rule motion must be denied. Navar- able to Block, (9th Cir.2001). Alternately, might ro v. 250 F.3d 729 claims. Defendants behavior, a claim justify their or at least con- standard is no different for civil able to Galbraith, any claim. 307 vince their conduct was not in than for See us that rights. the Plaintiffs' But the F.3d at 1125-26. violation of

987 123, 441, Young, 209 U.S. 52 United States Constitution. The Plaintiffs parte (1908). The Defendants con L.Ed. 714 they concede that could not prevail on a tend, instead, Amend that the Eleventh § 1983 claim based on a violation of state request ment bars the Plaintiffs’ for mone law, 1983, by terms, § because its own damages. The Plaintiffs cannot seek tary only protects against violations of federal in monetary damages against state officials Bastian, 891, v. law. Ybarra 647 F.2d 892 Doe v. Law capacity. their See official (9th Cir.1981). Instead, the Plaintiffs cite Lab., 836, rence Livermore Nat’l 131 F.3d only legitimate California law where it is Cir.1997). (9th But, the Eleventh 839 so, e.g., do where there is a state-created damage Amendment not bar suits does See, liberty property or interest at stake. against officials in their ca personal state Davis, 693, 710-12, e.g, Paul v. 424 U.S. 21, 30, 112 Melo, pacity. Hafer (1976). 1155, S.Ct. 47 L.Ed.2d 405 Ac 358, (1991); 5.Ct. 116 L.Ed.2d 301 Ashker cordingly, the Plaintiffs’ claims are not 392, of Corr., 112 Dep’t v. Cal. F.3d 394-95 ground, barred on this and we need not (9th Cir.1997). consider the arguments Defendants’ that allege Plaintiffs Defen the Plaintiffs’ state law claims are “novel capac dants acted in individual and official 1367(c).6 § complex” under 28 U.S.C. ities, therefore, suing the Plaintiffs are in them- both their individual and official D. Section 1983 Claims capacities. Thus we the Plain presume monetary seeking damages tiffs are argu- The Defendants’ first substantive personal the Defendants in their that proper- ment is the Plaintiffs have not Bible, capacity. See Romano v. 169 F.3d § ly pled they a claim under because Cir.1999) (stating strong proper § are not for a defendants presumption personal capacity favor of suit. “To an action sustain under section capacity suit where an official suit for dam (1) 1983, a plaintiff show must barred). ages Accordingly, would be complained conduct of was committed Eleventh Amendment does not bar law; person acting under color of state claim damages against Plaintiffs’ (2) deprived plaintiff that the conduct they far being Defendants so are statutory of a federal constitutional capacities. sued in their individual Ostrander, right.” v.Wood argue they The Defendants also (9th Cir.1989). attempt- immune because the Plaintiffs are All acting the Defendants were under ing pendent to enforce state law claims in they the color of California law when en- refer, federal court. The gaged alleged in the unconstitutional con- first, second, relief, and tenth claims for however, argue, duct. The Defendants provisions the California Constitution parallel applicable provisions deprive did not their conduct suggest any 6. The also we to abstain in Pull- Defendants should "ab- reason this situation. stain” under the Abstention Doctrine. The appropriate because the man abstention is not appear Defendants to confuse abstention driving each the Plaintiffs’ force behind pendent jurisdiction denial of under the “nov- right guaranteed by the United claims is complex” el and clause of 28 U.S.C. Constitution, States and state court clarifica- 1367(c). § they proper, If meant abstention make a federal tion of state law would not argument by failing waived that to raise ruling unnecessary. court See R.R. Comm. v. ' it before the district court. See Conn. Gen. 499-501, Co., Pullman Hills, Images Beverly Ins. v. New Life 85 L.Ed. 971 (9th Cir.2003). do we Nor see indiffer- statutory- need to show how deliberate or Plaintiffs of constitutional each Defen- or affirmative actions of rights. ence violation be- a constitutional dant caused deprives A another of con person monetary damages can they fore seek person that “does right, where stitutional At any individual Defendant. against act, in another’s participates an affirmative however, the Plaintiffs’ stage pleading, acts, perform an act affirmative or omits specifically delineate how each need not legally required to do person] is whieh[that to the violation of Defendant contributed deprivation of which com that causes the Indeed, rights. we do their constitutional Duffy, v. made.” Johnson plaint is how, discovery, they could prior not see Cir.1978). (9th Indeed, F.2d roles of each state plead the individual Can estab causal connection “requisite any specificity. Taking officer with more only by kind of direct lished not some light in the complaint the statements in the deprivation, in the personal participation Plaintiffs, to the the Plain- most favorable a series of by setting motion but also against a claim tiffs be able to state actor knows or by others which the acts Defendants, each of whom all of the named know would cause oth reasonably should policymak- role in injury.” played Id. an instrumental to inflict the constitutional ers ing and enforcement at Atascadero State 743-44. Therefore, we hold the Plаin- Hospital. circumstances, person In limited sufficiently alleged the Defen- tiffs have subject liability §to can also be alleged dants’ role in the constitutional there no Although the acts of others. to survive this mo- violations ‍‌‌​​​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌‌‌‌‌​​‌‌​‌​​‌‌​‌‍superior liability under pure respondeat tion to dismiss. § is liable for the consti supervisor “if the tutional violations of subordinates Qualified Immunity E. in or directed the supervisor participated violations, argued of the violations and The Defendants also or knew Taylor them.” v. prevent failed to act to when it denied them district court erred Cir.1989). List, 880 F.2d immunity. the Defendants qualified As conceded, qualified immunity only have two the proceed The Plaintiffs immunity damages, from a suit for (a) poli created ories: that the Defendants provide immunity does not from suit for procedures cies and violated L.A. declaratory injunctive relief. See (b) rights; Plaintiffs’ constitutional Gates, League Police Protective willfully that the Defendants were blind to (9th Cir.1993). The De- by committed constitutional violations argue they fendants are entitled to Because the Defen their subordinates. immunity the extent that the qualified policy-makers dants were directors and monetary damages. Plaintiffs seek Hospital, Atascadero State the Plaintiffs sufficiently alleged that the constitu In the Defendants’ analyzing were “set in tional violations suffered (1) defense, immunity we must determine: policy Defendants’ deci motion” (2) violated; right what been whether has or, least, very that the Defen sions at the “clearly so established” was dants knew of these abuses and demon of the incident that a reasonable the time strated a deliberate indifference to the official have been aware thаt would Plaintiffs’ plight. bounds; conduct violated constitutional (3) public a reasonable official whether Murphy,

Under Leer v. (9th Cir.1988), alleged could have believed that the con- 633-34 the Plaintiffs will Sauser, duct lawful. See Newell v. 79 The argue, was Defendants as a broad proposi- (9th Cir.1996). 115, 117 tion, that damages F.3d are appropriate not in this suit applicable because the law To withstand the Defendants’ evolving. SVPs is still unique, This suit is immunity, claims of in that it is one of the widespread first allege right must a violation of a that was class actions to challenge the conditions of clearly time the established 1998—the civilly detention for confined SVPs. How- alleged constitutional violations first oc ever, may Defendants have trans- Anderson, 639-40, curred. See 483 U.S. gressed clearly some established bound- McKee, 3034; 107 S.Ct. Sorrels v. 290 F.3d aries. Cir.2002). (9th 965, 970 To quali defeat immunity, right allegedly fied “the violated First, civilly persons detained appropriate must be defined level of must be afforded “more considerate treat specificity before a court can determine if ment and conditions of confinement than clearly it was established.” Wilson v. criminals whose conditions of confinement 603, 615, Layne, 526 U.S. are designed punish.” Youngberg v. 143 L.Ed.2d 818 Romeo, (1982); 73 L.Ed.2d 28 see also Sharp v. But, the Plaintiffs need not estab Weston, (9th Cir.2000). 1166, 1172 233 F.3d lish that the Defendants’ “behavior had then, logically, It follows rights previously been declared unconstitutional.” prisoners afforded set a floor for those (9th Prunty, F.3d Blueford SVPs, that must be afforded and that Cir.1997). Rather, if binding authority in where the Defendants violate a standard existed, disputed dicates that “the right clearly is prison established if specifically even no case had so de context, the violation clearly is established clared,” the Defendants would be on notice scheme, under the except SVP where the right. of the Id. at 255. If the occasion California statutory SVP scheme would has not risen for our circuit to reach a give a official reasonable reason to believe question, clearly we draw established body that the applicable of law prison law from other circuits. Legal See Prison ers not apply.7 would Lehman,

News v. Cir.2005); v. City Chicago, Jacobs Second, clearly where there is es (7th Cir.2000) (finding body applies tablished of law that to all clearly violation of established law where civilly persons, committed there is no rea there is “such a clear trend the case son that the law should apply to SVPs recognition law” that “only For, previously as well. as we have held: time”). matter of ways. The state cannot have it both If

Before we consider the Plaintiffs’ claims sexually preda- confinement of a violent individually to determine whether tor is civil purposes for the of evaluation claims were clause, established we under the Ex Post Facto question address a threshold applies purposes confinement is civil for the to the generally. Plaintiffs’ claims more defining to which the detainee Contrary dissenting colleague's to our prisoners. anal- not treat SVPs worse than ysis, very analytical we see "only this as minor binding reasonable conclusion from au- step. prisoners pur- The State thority” detains for the is that the conditions of confinement pose punishment. It detains SVPs for the for SVPs cannot be more harsh than those treatment, purpose detained, prisoners except and its treatment has under which punitive no entirely element to it. It seems where the statute itself creates relevant dif- unremarkable, then, say Blueford, that the State can- ference. 108 F.3d at 255. mind, we these threshold issues With confined. Civil status entitled while Plaintiffs’ claims to each of the status, rights ... review with all the

means civil they sufficiently whether determine it. accompany that clearly of established pled a violation (9th Blanas, 918, 933 Jones v. rights. Cir.2004). Thus, of law from are two bodies there Amendment and 1. First Fourteenth “clearly might draw established” which we Rights first, immunity purposes: law for that the Plaintiffs contend a right claim a violation of the SVPs where fil against them for retaliated Defendants pris- even in the clearly established is at Atas- regarding lawsuits conditions ing second, context, the SVPs and where on the Hospital. Specifically, cadero State . clearly right that is a violation of claim that, pre of claim as result civilly persons. for all detained established con regarding and others paring this suit it at the outset that acknowledge We Atascadero, they have been at ditions how much always clearly established not reductions, to access-level subjected civilly de- rights the expansive more by personnel, Atascadero harassment criminally than those of persons tained are searches and seizures of excessive room below, the As discussed persons. detained alleged that The Plaintiffs also property. civilly persons detained are rights afforded library denied access they have been into account the enough to take flexible filing bringing of their suit retaliation gen- detention. The law circumstances of complaints. balancing the erally a careful requires The Fourteenth Amendment arе detained for rights of individuals who the courts survives deten treatment, against right the to access punishment, not Smith, 430 security tion. Bounds v. U.S. See state’s interests institutional (1977) 821-22, 52 L.Ed.2d 72 the safety and the of those housed (“It beyond See, is now established doubt Youngberg, 457 facility. e.g., right of prisoners have a constitutional 319-22, weighing 2452. In those courts.”); that, v. Dono interests, unlike access to the Cornett ignored it cannot be (9th Cir.1995) (hold van, F.3d civilly who was plaintiff Youngberg infirmities, ing “right courts] of access [to of mental committed because in a institutionalized civilly guaranteed people subse- have been committed SVPs hospital regardless of wheth convictions and have state mental quent to criminal civilly committed after criminal to the er adjudged pose danger been Therefore, civilly or committed safety proceedings of others. health and Similarly, necessarily grounds dangerousness”). rights may not SVPs civilly exercising in retaliation for punishment of all other eoexistensive with those may eonsti- right one’s to access courts persons.8 detained conditions, turning eye physical dissenting colleague a blind agree our id 8. We thus SVPs, forcing in constitutional against that context is critical SVPs to attacks Nonetheless, it this admission'—that claims. punishment take medication as or in retalia- more extensive the is not clear how much filing refusing a lawsuit tion for or rights inexorably SVPs not lead are —does transgress during speak treatment sessions— can be no to the that there viola- conclusion Surely require boundary. it would not may law. It not be tion of established training]” clairvoyance recognize “law exactly process are to clear what due Plaintiffs, actions, alleged that these SVPs, surely but it is cleаr that be afforded comport process. no with due do forcing squal- to live in certain actions— tute a First Amendment violation. See illness and to refuse to participate in Dawson, treatment, Rizzo v. 531-32 and that may Defendants Cir.1985). punish exercising them for rights. prohibition We have held There be a First Amendment “ retaliatory ‘clearly punishment is treatment, not to participate in Circuit, established laV the Ninth right respected by language of Califor qualified immunity purposes.” Pratt v. Act, nia’s if SVP not in its implementation. Rowland, 806 & n. Specifically, the Act SVP directs: Cir.1995). alleged,9 Given the facts the Amenability to required treatment is not may prove they Plaintiffs be able to were for a that finding any person a person is punished in retaliation for exercising their described Section nor it is re First and Fourteenth rights Amendment quired for person. treatment of that grievances to file the about conditions Treatment does not mean that the treat Accordingly, their confinement. their ment be successful potentially suc claims should not be dismissed at the Rule cessful, nor does it mean person that the 12(b)(6) stage. recognize must his or problem her allege The Plaintiffs that the willingly also Defen- participate in the treatment participate dants force them to in treat- program.

ment that violates their First Amendment 6606(b) Cal. Welf. & (empha- § InstCode rights. Specifically, allege the Plaintiffs added). sis may While it be in the Plain- that the pro- Defendants bar SVPs from treatment, participate tiffs’ interest to gressing beyond obtaining Phase One and may and the State create incentives to higher they access levels until sign con- encourage such participation, right “[t]he admitting they tracts that have an illness thought religion freedom of and of as sign and need treatment. The decision to guaranteed by the against Constitution the contract is the ultimate Catch-22: dur- State action includes both the right to ing hearings, re-commitment the contract speak freely and right to refrain from against is used it sign those who speaking all.” W. State Bd. Va. illness, against admission of and used Barnette, Educ. v. 319 U.S. sign those who do not it as a refusal to be (1943) S.Ct. 87 L.Ed. (Murphy, amenable to treatment. J., concurring). prison- As is the with case allege ers, civilly

The Plaintiffs also that persons SVPs who committed retain those vocally participate attend but do not in First inherently Amendment not in- group treatment sessions are found consistent with the circumstances of their Defendants to progressing,” Safley, be “not Ac- detention. See Turner v. cordingly, these SVPs do not advance to 96 L.Ed.2d 64 phases the program statutory and their The above language strongly suggests access levels are restricted. The Plaintiffs recognize that refusal to argue they affirmatively have a First Amendment one’s participate “illness” or to right saying they refrain from have in treatment inherently is not inconsistent original pro complaint library "illegal assembly,” limiting 9. The Plaintiffs' se was an particularly persuasive time, contains narratives on library scheduling mandatory group law person- this issue. It details how Atascadero time, during library sessions the SVPs' suit, responded nel when learned of this refusing give drafting paper SVPs because altering schedules so that the coordinators of "only patients it was for the mental to draft togeth- this action would not be able to work appeals.” er, telling meeting may rise to the in treatment participate are SVPs for which purрoses that violates the First compulsion level of detained. Amendment. actually Granted, are not the Plaintiffs refusing however, the stakes for is speak, stage, but at this question forced exists, the Plaintiffs’ high that speak right are so but whether whether the not essentially is under participation right established such Indeed, exer- volatility an SVP who compulsory. Amendment. Given the First illness admit his right say not to cannot point, cised his we of the law on indefinitely. He would facially challenged programs could be detained it is. The pro- Phase One of past advance which SVPs are purposes never related to used could be gram detained, and his refusal while hearing treatment, aas him at his re-commitment participate such to refuse sufficiently not “rehabili- sign that he was extent to which yet it clear the society. to re-enter or advance- privileges tated” condition State can treatment. participation such ment on criminally de who are inmates Several such, appro- more may these claims be As arguments, on analogous tained raised declaratory or in- for considered priately programs that grounds, Fifth Amendment junctive relief. and to admit that force sexual offenders rights violate their those offenses discuss Thus, that the Plaintiffs’ First we hold In McKune v. against self-incrimination. clearly claims were based on Amendment Lile, S.Ct. they challenge as law insofar established (2002), Supreme Court held L.Ed.2d To the ex- filing lawsuits. retaliation did not violate SPV’s program that a on a First the claim relies tent where it “did not Fifth Amendment participate right not Amendment ... [or] incarceration extend his term of sessions, have the Defendants good-time credits eligibility his affect immunity, the law on this because only adverse conse and the parole,” or point is not established. the less that he was moved to quence was Rights Amendment 2. Fourth prison. area of the

desirable non-treatment 38-39, 122 S.Ct. Id. that Defen allege Plaintiffs subject Plain practices and policies dants’ explicitly open left But McKune seizures, searches, tiffs to unreasonable greater deprivation question of whether According unnecessary and use of force. run the Constitu liberty might afoul of Plaintiffs, subjected to they are detainees to to by essentially compelling tion searches, retaliatory strip searches public At one themselves. least incriminate arbitrary seizures McKune, possessions, and court, an inmate of their reading allowed upon arrival personal belongings on First of their past pre-trial motions proceed are also shackled right at Atascadero. SVPs grounds where the Amendment during to Atascadero and during transport participation parole was conditioned they family friends. When visits with and Dep’t v. Penn. treatment. See Wolfe treatment, (E.D.Pa. SVPs Corr., participate refuse to F.Supp.2d 770-73 even 2004). case, subjected light to “red alarms” Similarly, in this where pose any physical risk.10 when do not in treatment are so participation stakes for Moreover, as a are force-medicated refusing deprivations involved high, patient. light and restrain the complaint, a. "red surround explained in the 10. As twenty members when ten to staff alarm” is punishment, of intimidation means and court and when the Defendants have not for the convenience of yet staff. had a chance to justify the alleged searches seizures. We сannot say, true, Accepting allegations these then, the Plaintiffs cannot possibly Plaintiffs “clearly able to state a a “clearly state established violation” established” violation of their Fourth any based on facts consistent with their thus, rights, Amendment the claims pleadings.11 Therefore, Defendants do not are not appropriate for dismissal at the a right have to dismissal under Rule 12(b)(6) Rule stage. The watchword of the 12(b)(6) based on qualified immunity. Amendment in every Fourth context “reasonableness.” As this court held in Jeopardy 3. Double and Ex Post Fac- (9th Souza, Thompson v. 111 F.3d 694 to Clauses Cir.1997), “the Fourth Amendment allege Plaintiffs violations of be secure unreasonable searches the Double Jeopardy Ex Post Facto and seizures ‘extends to incarcerated pris ” clauses. While the Plaintiffs concede that oners.’ (quoting Id. at 699 Michenfelder these two clauses punishment as an Sumner, Cir. prerequisite essential and that the SVP 1988)). Thus, protection certainly ex statute, Act is a civil detention they claim tends to SVPs. punitive SVP Act is as applied to course, Of “the reasonableness of such, them. As argue search particular is deter [or seizure] their Double and Ex Jeopardy Post Facto by ‍‌‌​​​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌‌‌‌‌​​‌‌​‌​​‌‌​‌‍mined reference to con the[detention] claims are not barred. Michenfelder, text.” 860 F.2d at 332. In upholding a similar law to Califor- There concerns mirror those that . Act, nia’s Supreme SVP the Court held prison the e.g., arise context: “the safe Act, civil, that “[a]n found to be cannot be ty security guards and and others in the punitive deemed ‘as applied’ to a single facility, order facility within the and the individual in violation of the Double Jeop- efficiency facility’s of the operations.” An ardy Ex and Post Facto clauses pro- and Neer, drews v. cause vide Seling Young, release.” Cir.2001). so, But even qualified immunity 250, 267, protect does not a search or seizure that is (2001). L.Ed.2d 734 Similarly, the Cali- arbitrary, retaliatory, exceeds Supreme fornia Court stressed the civil legitimate the purpose of detention. nature of a sexually predator violent com- framework, this Under we cannot dis- rejected mitment and challenges to Cali- the miss Plaintiffs’ claims. The “reason- fornia’s SVP Act based the Ex Post of a search ableness” or seizures is a fact- Facto and Double Jeopardy Clauses of the inquiry that intensive cannot be deter- federal constitution. See Hubbart v.Su- See, stage. mined at this e.g., Thompson, CL, per. Cal.4th 81 Cal. (9th Cir.1997). 111 F.3d 694 It impossi- is Rptr.2d 969 P.2d 584 ble to fact-specific make such a determina- Plaintiffs’ claims based on the Double when precise tion the circumstances of the Jeopardy Ex and Facto Post clauses of searches or seizures are not before the the federal constitution are foreclosed.12 11. The excessive force claims under the their claims for Substantive Due We Process. e.g., Fourth and Fourteenth together consider all these claims below. Amendment — medication, light forced alarms, use of red excessive not, however, largely Seling and duplicate use of did authority alter our 12. shackles— the Plaintiffs’ excessive implementation force claims under the to consider of the Act on SVP Amendments, Eighth and Fourteenth and Seling, Plaintiffs’ other See claims. claim here The thrust of the Plaintiffs’ Seling does argue

The Plaintiffs the conditions of confinement “seeking that because they are not not control because per- should be petitioner to punishment, the habeas amount as was release” a dif argue “punishment” without that this This is distinction Seling. mitted it Seling “puni- made again, The court Once ference. cruel unusual. and the civil nature of abundantly clear that argument is foreclosed applied” tive as based “cannot be altered Therefore, the SVP scheme that the dis- we hold Seling. implementation merely vagaries on the when it failed to dismiss trict court erred 263, 121 Id. at statute.” authorizing of the claim Eighth Amendment that the we hold Accordingly, 727. S.Ct. Defendants. Act is not SVP nature of California’s civil course, victory a small this is Of sought and remedy because altered Defendants, the same because deny court’s order the district

we reverse inhumane and failure claims for motion to dismiss Defendants’ ing the Four may be under protect raised and the Ex Post Facto related to claims appli Amendment. The standard teenth Jeopardy Clauses. Double the Fourteenth under cable coextensive is at least Amendment Amend- Eighth Fourteenth under prisoners applicable ment Claims See, Munoz v. e.g., Amendment. Eighth allege in com The Plaintiffs Kolender, F.Supp.2d denigrating plaint that the “restrictive (S.D.Cal.2002) (applying Fourteenth Hospi Atascadero State conditions” to SVPs because standards Amendment punish and unusual tal constitute cruel pris to both “comparable apply standards Eighth Amend of the ment violation Amendment cruel un Eighth oners’ has, Amendment Eighth ment. and Fourteenth Amend punishment usual punish. prerequisite, essential analyses, process due ment substantive Winnebago County Dept. DeShaney v. See analysis bor Fourteenth Amendment with 189, Servs., 6, 109 199 n. Soc. 489 Amendment stan Eighth from rowing (“The 998, 249 State 103 L.Ed.2d S.Ct. dards”); Agnos, Frost v. punish to with acquire power not does Cir.1998) Eighth (applying 1128 Eighth Amendment is concerned which the pretrial standards to evaluate Amendment adjudi a formal until after it has secured claims). Fourteenth Amendment detainees’ pro in guilt cation of accordance due Moreover, pro Eighth Amendment law.”). Here, SVPs detained cess of protection for those whom vides little too treatment, and the purpose for the Jones, punish. cannot See the state expires them at the power punish to state’s 931-34; Andrews, F.3d at Accordingly, the their end of sentence. this, apparently recognize 1061. Plaintiffs vehi is not the

Eighth proper Amendment claims Eighth Amendment com because conditions of civil challenge cle to those raised under the largely duplicate Wolfish, See Bell v. 441 U.S. mitment. clause of the process due 60 L.Ed.2d substantive n. Accordingly, Amendment. we Fourteenth (“This of confinement and gives to actual conditions us look U.S. at case S.Ct. how the civil nature to determine in implementation no occasion to statute consider con- a confinement scheme relates instance confinement whether first process, challenges, as due nature.''). stitutional such in is civil scheme to which a court to consider the extent 6606(a). consider the Plaintiffs’ allegations § that the disorder.” Id. Moreover, the Defendants pro- actions violate their due SVP commitment gives statute the Depart- cess under the Fourteenth Amend- ment of Mental Health Services the au- ment. thority forcibly an medicate SVP for 6606(b).13 purposes § of treatment. Id.

5. Fourteenth Amendment Procedur- al Due Process Claims The five-phase treatment program at Atascadero must be “consistent with cur-

The аllege a number of rent institutional standards the treat- procedural process due They violations. offenders, ment of sex ... based allege that Defendants force them to par protocol structured treatment ticipate five-phase developed pro treatment gram Atascadero, and based on their the State Department of Mental progression through that pro 6606(c). treatment § Health.” Id. purpose, Its gram, subject reductions, privilege them to purpose of the attendant changes in reductions, access level and reclassifica- level, privileges, access and classification tions, and force them to take medication in protocols, under its punishment, but non-emergency situations. The Plaintiffs preparation treatment for the SVP’s allege that deprivations these occur with eventual release. of, adequate out notice or opportunity to Accordingly, the Plaintiffs cannot have to, respond alleged accusations sanction- expectation to be free of such treatment conduct. able The Plaintiffs cite caselaw under state SVP law. complained-of applicable prisoners argue that the are, procedural protections actions at least facially, part to prison afforded of the ers this context plan should be afforded them treatment Atascadero legally re- as well. quired provide persons that the state has deemed mentally ill. Given this rele-

The Plaintiffs adequately have not pled vant difference between and prison- clearly the loss of process established due ers, say we сannot the procedural rights. Supreme explained Court has protections provided to prisoners that due process by prisoners claims de- relate to pend large forced part on medication and forced prison- whether the ers have “justifiable some expectation apply to SVPs. rooted state Montanye law.” Moreover, there are proce- numerous

Haymes, 96 S.Ct. safeguards dural to an afforded individual (1976); 49 L.Ed.2d 466 Washing- see also facing an action for civil commitment. Harper, ton v. Proceedings designate to a person an SVP 108 L.Ed.2d 178 SVPs differ only are initiated a finding by after two prisoners from in at least one important practicing psychologists psychiatrists respect: an individual desig- who has been that the individual has “mental disorder” found, nated SVP has been under Cali- that likely such he is to re-offend unless he law, fornia to diagnosed have “a mental “appropriate receives treatment and custo- that person disorder makes danger the 6601(d)-(f). dy.” § See id. Persons to health and safety of others.” Cal. proceedings counsel, 6600(a)(1). right SVP have the to § &Welf. InstCode Once a jury right designates SVP, experts, to consult right someone an to Califor- requires nia law have the provided prove the SVP be state their SVP status be- “treatment for his or diagnosed her doubt, mental yond reasonable right and the to a 13. challenge The Plaintiffs do not California's SVP Act. De- First, that the Plaintiffs claim §§ id. 6603- See jury verdict.

unanimous eye to the a blind have turned fendants 04. at Atas- detained persons of other conduct designation, an addition, initial after In Hospital. Specifically, cadero State to opportunities periodic given SVP intentionally they are allege that for treat- need his continued challenge vomit, and feces, urine, spit, exposed Thus, §§ 6608. id. ment. See courtyards, bath- in Atascadero’s blood treat- Atascadero’s subjected to are not rooms, gymna- and rooms, hallways, dining procedural certain without program ment contaminate sium, other detainees and that to in- they relegated are nor protections, unsanitary spit and other food with their ability without treatment definite they are allege that The Plaintiffs taint. judicial intervention. seek harassment, physical subjected to verbal liberty may have interests The Plaintiffs pa- by other abuse, sexual assaults and by prisoners possessed those akin to They Hospital. contend at the tients have the context, and thus they are sex targeted are because within protections procedural to further offenders. rights But such of Atascadero. the walls Because yet established. are not Atascadero population patient designated as been have the Plaintiffs males who comprises Hospital State treatment, a ill and need mentally The indi- committed. penally civilly would reason official state reasonable Hospital are con- at the committed viduals to the applicable law that the to believe variety of See statutes. under fined did prisoners and medication (covering patients § 1026 Code CaLPenal hold therefore to SVPs. We apply insanity”); CaLPe- guilty reason “not immu- are entitled Defendants “incom- (covering patients § 1370 nal Code procedural regards to Plaintiffs’ nity trial”); Code CaLPenal petent to stand Accordingly, we re- claims. process due “mentally disor- (covering §§ holding to the court’s as district verse the serving parole their offenders” dered cause of action. sixth Plaintiffs’ (cov- § time); & InstCode Welf. Cal. offend- “mentally sex disordered ering Substan- Fourteenth Amendment (covering § ers”); Code CaLPenal Claims Due Process tive to Atas- transferred mentally prisoners ill contend that The Plaintiffs psychiatric stabi- Hospital State cadero their substantive have violated Defendants Plaintiffs, lization). According to the by failing protect process due “sexu- integration openly labeled forced the abuse of detainees them from them to subjects predators” ally violent can The Plaintiffs’ claims employees. abuse, harassment, physical verbal catego general three into be broken down Atas- rest of the from the assaults sexual (a) failed Defendants ries: claims population. cadero from abuses the Plaintiffs protect and right protected to be Plaintiffs’ (b) Atascadero; at detained persons clearly institution are in a safe confined pro to failed the Defendants claims that at 457 U.S. Youngberg, See established. of constitutionally adequate conditions vide 319-22, (stating that indi- 2452 102 S.Ct. (c) the Defen detention; that and claims civilly involuntarily com- are who them.14 viduals excessive force dants use Fifth, ond, action. and causes Here, Seventh substan- the Plaintiffs’ we consider 14. Sec- process allegations from their tive due

997 constitutionally protected mitted that subjected Plaintiffs are to “excessive rights process under the due to punishment clause ... excessive [and] use of reasonably safe conditions of confinement physical force and restraints.” It is well- bodily freedom from unreasonable and re- pеrsons established detained have a straints). right clearly established right to be free from excessive force. civilly persons prison- committed While excessive force by prisoners claims Brennan, ers alike. See v. Farmer 511 are reviewed under the Eighth Amend- 1970, U.S. S.Ct. 128 L.Ed.2d ment’s malicious and standard, sadistic (1994); Feinstein, Neely 50 F.3d McMillian, Hudson v. 503 U.S. (9th Cir.1995) 1502, 1508 (finding “clearly S.Ct. (1992), L.Ed.2d 156 patients established” that have a “consti- more generous Fourteenth Amendment right tutional to be safe in the state insti- standard applies to those who are civilly committed”). tutions which they to confined. As we stated: previously Assuming the can prove Plaintiffs the alle- If confinement of a sexually pre- violent gations in complaint their and the Defen- dator civil for purposes evalua- dants’ blindness to such conditions tion clause, under the Ex Post Facto Atascadero, qualified immunity not would that confinement is civil purposes for the appropriate be on these claims. of defining rights to which the de- Second, the allege tainee is entitled while confined [in conditions of confinement are constitution facility]. Civil status means inadequate ally they are to forced —that status, civil with all the Fourteenth in squalid live conditions that are inhu Amendment that accompany it. pose mane and a serious health risk. The Jones, F.3d at 933. clearly Plaintiffs have a established The Fourteenth Amendment re exposed not to be unsanitary such con quires civilly persons committed Kern, ditions. See County Anderson v. subjected be (9th Cir.1995) (col conditions that amount 1314-15 Bell, punishment, lecting context); prison cases U.S. at Young berg, 315-16, 457 U.S. at 102 S.Ct. 2452 within the professional bounds of (establishing a right “personal security” discretion, 321-22, Youngberg, 457 involuntarily persons).15 committed Mоreover, 102 S.Ct. 2452. process “due Given the allegations, Plaintiffs’ requires that the conditions duration claims as to unsanitary and unsafe of confinement [for civilly per confined conditions ‍‌‌​​​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌‌‌‌‌​​‌‌​‌​​‌‌​‌‍of confinement cannot dis sons] bear some relation reasonable to the 12(b)(6). missed under Rule purpose persons for which are committed.” Seling, 727; see

The Plaintiffs also allege several Jones, also 393 F.3d at 931. While the (a) force, e.g., claims excessive that “red nature of an SVP’s confinement factor light alarms” are used when the Plaintiffs reasonable, this balance of what is it is treatment, refuse to participate in even persons when established that pose no the substantive threat of physical (b) violence; process due protections during shackles are used the Fourteenth transportation Andrews, and during apply visits with fami Amendment See SYPs. friends; ly and, (c) more generally, (applying at 1061 the Fourteenth context, here, prison In the unsanitary ply claims of may apply similar standards to SVPs conditions are Eighth under the evaluated under the Fourteenth Amendment. See Mu- Anderson, Kolender, 1125, Amendment. See 45 F.3d at 1314. 208 F.Supp.2d 1146 noz Although Eighth (S.D.Cal.2002) ap- the Amendment does not 998 grounds of these three each On reasonableness” “objective

Amendment’s —fail- of inadequate conditions protect, ure to brought claims force to excessive standard force—the confinement, and SVPs).16 excessive civilly committed “clearly a to state may be able must, at a that SVPs alsoWe reiterate Amendment Sub- Fourteenth established” rights afforded minimum, the be afforded violation, and we Process stantive Due penal in a institution. confined prisoners 12(b)(6) stage, dismiss cannot, Rule at the pro- still Thus, Eighth Amendment the claims. process due these substantive protection the level of vides floor the Fourteenth receive under must Equal Amendment Fourteenth of Amendment, the contours and because Claims Protection defined, more are Eighth Amendment the Plaintiffs, be- they are to the According jurisprudence Eighth Amendment restrictively than other more ing treated the stan- as to helpful guidance provide They allege patients. civilly committed Eighth the applied. Under dards to be punitive more are their conditions Amendment, unnecessary and wanton the civilly all other under which than those account such takes into force standard For one ex- are held. persons committed of application the need facts as civilly-com- they allege ample, force, relationship need between in hiring given priority are persons mitted used, the threat of force and the amount positions. for remunerative officer, to tem- any effort perceived by response, severity of the forceful per do though the Plaintiffs Even inflicted, injury and of the and the extent class, heightened scru suspect constitute legiti- for a applied force was whether the fundamental required tiny may be where McMillian, Hudson v. purpose. See mate Harper v. Va. See issue. interests 995, 117 L.Ed.2d 112 S.Ct. 670, Elections, 663, U.S. Bd. State (1992). allege conduct plaintiffs If (1966); Po 16 L.Ed.2d pris- afforded protections below that sinks Mosley, 408 Chicago v. Dep’t lice Amendment, their Eighth oners under L.Ed.2d of their certainly a violation claim states “height of a application upheld This court Amendment. under the Fourteenth rights evaluating scrutiny standard” when ened under Wash equal protection violation force is used in allege that The Plaintiffs Sexually Predator Violent ington State’s exerсising legitimate retaliation for Weston, 176 F.3d Young v. Statute. See is often amount of force used and that the (9th Cir.1999), on other rev’d situation. gross overreaction 250, 121 S.Ct. Seling, 531 U.S. grounds, force, not reason- proved, if use of Such Young was L.Ed.2d 734. While such abuses to curtail able and failure firmly es it rested on decided the Defen- said to be within cannot be time Therefore, existence principle tablished discretion. professional dants’ heightened question: of events court’s denial affirm the district we a fundamen- scrutiny applied where will grounds. on these motion to dismiss argument statute should Jones, Neer, that the Seling are more California's 16. While cases, than a civil statute. they do little restate confinement more be construed recent reading law established in official the contours believe a reasonable We case, Bell, a 1979 case. Youngberg,a 1982 notice that Youngberg would have sufficient test, Youngberg Seling essentially restates the Youngberg's standards held to would be than connect the does little more and Jones process. due Youngberg SVPs based on line between

999 liberty tal interest at stake. pleadings, is See Skin- the Plaintiffs may be able to Oklahoma, 535, 541, ner v. 316 U.S. 62 prove, a violation clearly established law (1942). S.Ct. L.Ed. The congruent with the facts alleged. Admit- may Plaintiffs claim be able to violations tedly, at stage, this the Defendants have several established fundamental fully not developed and presented the ra- rights: liberty interest freedom from tionale their actions may and there be bodily restraint personal security, and differences between SVPs and civilly other 315-316, 457 U.S. at Youngberg, S.Ct. persons committed that warrant differen- 2452, and a right fundamental to access tiаl treatment. But we leave it to the courts, as described below. Accord- court, district on a record, fuller factual ingly, heightened scrutiny is the standard consider whether the are ir- classifications equal protection claims implicating rational arbitrary. rights. these fundamental And the Plain- tiffs, in line allegations, with their be Right Sixth Amendment to Coun- to show able the differential treat- sel and Fourteenth Amendment ment between civilly and other themselves Right of Access to Courts persons committed equal protec- violates The Plaintiffs claim cannot tion because such treatment does not meet privately correspond counsel, with have heightened scrutiny. telephone counsel, conversations with time, At the same say we cannot that it are otherwise hindered in their ability to firmly every established that condition of prepare for their probable cause and com- subject SVP’s confinement is to height- mitment hearings. scrutiny. ened In prison we setting, statutory have a right to

have made clear prison officials need probable counsel in cause proceedings and in deciding prisons, latitude how to run hearings. commitment Cal. and we have Welf. & subject refused to each classi- 6605(d). 6602, 6603, §§ Inst.Code by pro fication drawn To prison officials to height- Rather, right counsel, tect scrutiny. ened “a prisoner [detainee] cannot challenge given must the conditions of be opportunity his reasonable confinement equal protection on grounds employ counsel; and consult with unless other against wise, him discrimination right irrational or by to be heard counsel arbitrary. See v. Royster, McGinnis 410 would little worth.” Chandler v. 263, 276, 93 S.Ct. 35 L.Ed.2d Fretag, 348 U.S. 99 L.Ed. (1973). is, That in so far as the Plain- Amеndment, While the Sixth rely claims on tiffs’ classifications re- express its language, protects those in lated to liberty interests, fundamental proceedings, criminal the Fourteenth Defendants will immunity Amendment protects all detainees unless there is no rational basis for the governmental right interference classification. access to courts. See Procunier v. Mar tinez, 396, 419-20, standard,

Even under the rational basis (1974) (overruled 40 L.Ed.2d 224 on we cannot dismiss the Plaintiffs’ equal pro- Donovan, grounds); Cornett v. tection claims at stage. Plaintiffs’ (9th Cir.1995). 897 & n. 4 pleadings raise questionable right several classi- fications. For to courts example, arbitrary it seems access has been found to en compass should be treated harshly person more to talk in and on civilly than other persons job committed telephone counsel confidential placement privileges. Procunier, Based settings, 416 U.S. at

1000 inmates, 608, viewed prison officials who Lewis, those F.2d 1800; v. 895 Ching S.Ct. and the viewing, of angle law and duration (9th Cir.1990), to use available the 609 Hall, resources, v. 83 F.3d had taken minimize steps prison Keenan the library restric- (1996), legitimate id. at 494-95. subject privacy. See of invasions and circum- purpose the us at related to not available to simply tions are facts Such Turner, detention, Nonetheless, of see stances stage proceedings.17 of rights such 89, 2254. Where state a viola- may be able to Plaintiffs the context, prison in the upheld been have congruent law clearly established tion of at least as must be afforded will and as such we allegations, their broad. Rule their claim under dismiss not 12(b)(6). hardly can inquiry specific a fact

Such when it is not point, at this be undertaken have done to what the Defendants

clear courts, why they or to the imрede access court’s sum, the district we affirm In ac- so, the Defendants’ or how done have immunity on the deny qualified decision Plaintiffs’ of affected tions have second, seventh, first, eighth, Plaintiffs’ Nonetheless, Plaintiffs be access. to the ninth, causes of action and tenth clearly estab- a of able to state violation part reverse noted We extent above. allegations, their congruent with law lished quali- Defendants have hold that the order court’s affirm the and we district the Plaintiffs’ immunity suit on fied from 12(b)(6) motion Rule Defendants’ denying Facto, Proce- Jeopardy, Double Ex Post Tenth claim to Plaintiffs’ dismiss Amend- Process, Eighth Due dural to courts. on access based ment claims. Privacy under the Four- Right 9. Their Belief Defendants’ That F. The Amendment teenth Not Ob- Lawful Was Conduct Was De allege that the jectively Reasonable privacy allow for policies do not fendants’ alleged if the Plaintiffs have Even toi using the showering, sleeping, when a right, clearly a established of violations therapy sessions. lets, participating entitled to qualified official is government Four clearly established It is she “could ... immunity if he or sphere protects Amendment teenth mistakenly believed reasonably but subject “basic and the most privacy, clearly did not violate a his or her conduct body.” Grummett ... the naked privacy right.” constitutional Jackson established (9th Rushen, Cir. 779 F.2d v. Bremerton, 646, 651 City v. 1985). of institu circumstances While Haner, (9th Cir.2001); also see limited, Alford privacy tional life demand (9th Cir.2003). This F.3d in gratuitous clearly it is established if law however: exception, limited Fourteenth privacy violate vasions established, immunity defense Again, this calls for See id. Amendment. fail, reasonably since a “ordinarily should the facts inquiry where faсtual highly official should know Grummett, competent public In fully developed. official’s] conduct.” governing [the law gender example, we considered not, there State to show that Moreover, burden of the er the that it is as the we note Sumner, briefs, justification. Walker v. the burden See is such hinted Defendants Cir.1990). compel- there is no to show that of the SVPs 385-87 regulations, but rath- justification ling for the Fitzgerald, Harlow v. 818- what is left where the officials are con- 73 L.Ed.2d 396 cerned? A lawsuit personal- them ly for acts and omissions alleged to have the Whether Defendants’ was conduct been taken discharge in the of their official reasonable involves a factual analysis of duties. It is here that I part company. the surrounding circumstances Defen- dants’ actions and determination of by issues raised plaintiffs these whether similarly a reasonable official situ- certainly important require and our atten- ated would have been aware that his/her tion, but the issues can be liti- thoroughly law, actions violated the an inquiry difficult gated and authoritatively decided without to stage. conduct at this on the Based involving the state officials as individuals. us, however, facts front of we do not Requiring these individuals to participate believe Defendants can claim that their in their individual capacities not only is objectively conduct was reasonable. unnecessary, but to render them personal- argue Defendants that the volatile nature ly damages liable for very contravenes the of the surrounding law them entitles purpose of the doctrine of immu- escape liability entirely. We do nity as explained by the Supreme Court: adhere theory to the that “every dog is [P]ermitting damages suits gov- entitled to one bite.” The Defendants ernment officials can entail substantive could not completely have been so unaware costs, social including the risk fear that of the standards that would apply to their personal monetary liability ha- conduct it related to explained SVPs. As rassing litigation unduly will offi- inhibit above, entirely SVPs are not dissimilar cials in discharge of their duties. from groups civilly committed persons. Moreover, the Plaintiffs’ com- Anderson v. Creighton, 638, 483 U.S. plaint alleges practices that would be un- (1987). 107 S.Ct. 97 L.Ed.2d 523 if any constitutional directed at prisoner. Accordingly, the Court has held that offi- Accordingly, Defendants cannot escape lia- cials are immune unless “the clearly law bility based on a “reasonable mistak- but proscribed took, the actions” Mitchell en” belief about the constitutionality of v. Forsyth, their conduct. (1985); 86 L.Ed.2d 411 that unlawfulness must be apparent in the light CONCLUSION law. preexisting Malley Briggs, reasons, For foregoing we AFFIRM 335, 344-45, part in part REVERSE the district L.Ed.2d 271 court’s denying order the Defendants’ sec- record, On this and under these circum- 12(b)(6). ond motion to dismiss under Rule stances, conclude, I with all respect my Each side to bear its own costs. colleagues, that these officials as individu- als are to qualified immunity entitled

TROTT, Judge, Circuit concurring in against both suit and damages now, not part and dissenting part: — view, later. In my particulars and the I contours of alleged constitutional rights upon plaintiffs rely which the were 'My disagreement my colleagues with not so established at the times limited to one critical issue. agree We scrutiny under and at specifici- the level of plaintiffs damages cannot seek in this ty required lawsuit that a against state such reasonable officials official offi- capacities, cial plaintiffs and that hired cope pursuant cannot the state to seek damages So, from the State statutory either. authority lawfully confined “reasonably impossible it subject to reme-

sexually predators violent for officials their conduct anticipate aware when been [to] would have dial consti- It damages.” federal alleged liability violated give conduct rise na- therefore, the unsettled bounds. Given surprising, tutional should not area, a reasonable in this the law ture of cases establish our other- certainly have believed could official must have violated alleged official wise. in a “clearly established” been more analyt- and hence particularized, with clear appeal more decide We Supreme Court: relevant, contours of guidance from the sense: The ical sufficiently clear that concretely, whether an right must be more Somewhat immunity by qualified would understand protected official official reasonable for an liable may personally held right. be that doing violates that what he is general- action official allegedly unlawful action that an official say This is not “objective legal reason- the ly turns on immunity un- by qualified protected action, light in assessed of the ableness” pre- has question very the less action “clearly es- rules that were legal of the unlawful, it is to viously but been held taken. it was at the time tablished” law light pre-existing say that in the of however, standard, this operation of apparent. must be the unlawfulness of the level substantially upon depends 639- Creighton, Anderson “legal relevant at which the generality (1987) L.Ed.2d 523 107 S.Ct. example, For to be identified. rulе” is added) (alteration original) (emphasis quite law is process of to due omitted). (internal citations Due Process by the clearly established suit acknowledge, “this my colleagues As Clause, is a sense in and thus there first it is one of the unique, that that violates that any action which challenge actions to widespread class (no unclear it be matter how Clause civilly confined violation) of conditions detention action is particular that it re- only unique, but It is not right. SVPs.” clearly established violates any questions of never before be said us to quires Much the same answer could statutory viola- This other constitutional in this context. squarely addressed “clearly of estab- But if the test tion. enough to alone be entitle factor should applied at this were to be lished law” defendants to dismissal. individual these no rela- would bear generality, level of it v. Ro- rely Youngberg My colleagues “objective legal reason- tionship to the 307, 322, 2452, 73 meo, 457 U.S. of Har- touchstone ableness” that is the (1982) that proposition for the L.Ed.2d convert be able to low. would must be afforded “civilly persons detained immunity that our qualified the rule of and condi- ‘more considerate into a rule plainly cases establish of than criminals whose tions of confinement liability simply by virtually unqualified designed confinement are of conditions extremely abstract violation alleging of ” quote an unremarkable punish.’ This is be Harlow rights. would transformed context, us gets but it nowhere used out of immunity into a guarantee of from the central answer to pursuit of an approach, pleading. rule Such have in law- we question of whether sum, destroy “the balance would rights. clearly established suit violations of the intеrests in between our cases strike Youngberg dealt with Why? Because constitutional vindication citizens’ good their confinement for own passive public and in effective officials’ contrast, In persons. duties,” mentally defective by making performance their recently recognized by and as Supreme and extrapolating others defies the salu- Court, sexually predators violent are con- tary purpose qualified doctrine of protect fined in order to public “the from immunity. dangerous individuals with treatable as My colleagues concede that the defen- well as untreatable conditions.” Seling v. dants are entitled to immunity Young, respect with plaintiffs’ procedural addition, 148 L.Ed.2d 734 In process due claims under the Fourteenth Seling Court said that the case before it Why? Amendment. Because these plain- “gives for decision us no occasion con- tiffs are markedly prisoners. different than sider how ‍‌‌​​​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌‌‌‌‌​​‌‌​‌​​‌‌​‌‍civil nature of a confinement plaintiffs subject to a program scheme relates to other constitutional chal- ” mandated state requiring law lenges, such process.... as due Id. at diagnosed treated mental dis- wonder, 121 S.Ct. 727. It is little orders, treatment which includes forcible therefore, my colleagues admit in con- subject medication and is to “numerous Youngberg nection “it is not al- procedural safeguards.” The critical dis-

ways clearly established how much more recognized tinction by my colleagues expansive right civilly per- detained —in my view—should carry over all claims sons are criminally than those of detained made plaintiffs, just these claim not persons.” I disagree my colleagues’ to which it is selectively applied. that logically[from claim follows “[i]t ], Youngberg then, the rights that afforded I find more than significant the relative prisoners set a [rights] floor for those newness the civil procedure commitment SVPs, must be afforded and that where at issue in this case. Sexually California’s Defendants violate a standard that is clear- Violent Predator Act was enacted ly context, prison established in the the The constitutionality of this concept was is clearly violation established under the 1997, not upheld until see Kansas v. Hen- Certainly scheme[.]” SVP this “logic” dricks, 346, 521 2072, U.S. 117 S.Ct. 138 based assertion proposition is not a clearly (1997); L.Ed.2d 501 and California’s own established controlling and at the time rel- begin courts not definitively did to iron out evant this Saying rights lawsuit. statutory controversial issues of treat- logically follow from one area to another is ment —such involuntary as medication an admission that rights those yet have not separate without a court order—until 2004. clearly been established the area to Calhoun, See In re 121 Cal.App.4th 1315, they which are being transported. Prison- 18 315 Cal.Rptr.3d When did the ers have rights constitutional flowing from acts complained 1998, of here occur? in the certain guarantees constitutional do midst of grappling by appellate courts with apply out not of the criminal context. this modality new years and two before Which established “prisoner rights” Seling. fact, In yet the courts have talking I my about? cannot find clarify if protects and how the Constitution colleagues’ bold anywhere assertion any sexually violent predators from various case before this one. Where is the re- confinement and treatment modalities. quired level of specificity required to hold Context is critical to the determination of these individuals persоnally responsible whether a right constitutional for their acts? It has been nowhere to is be found. established. The Supreme Wfliere is the fair warning to them Court confirmed as to principle constitutional in Washington limits v. compulso- Harper, ry programs? treatment 494 U.S. 110 Expanding S.Ct. 108 L.Ed.2d extending some (1990), from other contexts 178 by mentally lawsuit filed ill

1004 607-08, 442 U.S. judges.” treat business against complaining prisoner state (internal quota- citations against his drugs 99 S.Ct. anti-psychotic ment with omitted). In judicial hearing. tions and without will violate did not holding such a court anticipating penalty pro due procedural substantive either liability. This un- will be individual ruling said, of a cess, “The extent the Court what precisely fortunate situation to avoid under the Clause prisoner’s immunity designed doctrine of antipsy- unwanted administration to avoid. con in the drugs must be defined chotic Id. confinement.” of the inmate’s text II 222, 110 S.Ct. 1028. ap- my colleagues’ appear that It would message in Parham the same We read is at irreconcilable odds to this case proach J.R., v. four other Cir- from at least with cases (1979): con- process is “What L.Ed.2d Sixth, First, Fourth, cuits, Elev- from cannot be divorced stitutionally due enth. that is ultimate decision the nature of the Tirado-Delga- In Nereida-Gonzalez v. Brew- Morrissey also being made.” See (1st Cir.1993), do, panel F.2d 701 er, Breyer, now Justice including Stephen (1972) (“[D]ue flexi- process is L.Ed.2d gov that claims Breyer, observed protec- procedural such and calls for ble money damages can officials for ernment de- situation particular tions upon “clear predicated unless proceed not mands.”). statutory or constitutional ly established” Harper v. Noteworthy Washington person would of which a reasonable Washington holding by the a correct was affirming In Id. have been aware. at defen- that the individual Supreme Court against the summary judgment grant a immunity. qualified to dants were entitled that the law relied ground on the plaintiffs 5, The n. 110 S.Ct. 1028. 218 yet at the by them was not settled upon to only proceed, to but case was allowed the Court question, the actions time of injunctive declara- claims for consider is time- that “[t]he observed determination state § 1983 as well as tory relief under words, no individual Id. In other critical.” hap- what should precisely law—which a violating liable for personally can be held re- that we now here. It seems pen particularized, yet not become law that has staff consult doctors and other to quiring awith fixed in connection which means they devise a lawyers before just with clearly estab First precise context. sexually vio- treatment for procedure or law, only potential then —and lished then — courts. predator, lent but monetary liability public offi personal warned this Supreme Court to would seem process cials. Due alone Parham, process saying, result “Due As the Sixth sequence. require such that the require thought never been has Testa, v. 97 explained McCloud Circuit be law trier of fact neutral and detached (6th Cir.1996), 1536, 1541 F.3d offi- judicial or administrative trained or a in this proof suit ultimate burden to medical Surely, is the case as cer. must establish who plaintiffs, decisions, judges nor adminis- for neither public official] conduct [as Testa’s qualified are better hearing trative officers so estab- violated federal psychiatric to render psychiatrists than position in his any lished that official procedure The mode and judgments.... that he was un- have understood is not the would diagnostic procedures of medical

1005 der an duty affirmative to refrain from failed anticipate principles law such conduct. developed in other distinct contexts would be applied them, for to do so The court went on to indicate that “individ would be contrary to the admonition in capacity ual §in defendants 1983 cases Anderson v. Creighton, receive some benefit from legal doubt 3039, that we should not plaintiffs allow clarity about the existing law.” Id. at to convert “the rule of immuni- 1542. The Eleventh agree Circuit would “ ty into a rule virtually unqualified proposition, with this remarking that ‘[i]f liability simply alleging violation of law, terms, case in factual has not staked extremely abstract rights.” line, bright out a qualified immunity al ” Eugene Karman, D. v. always 701, most 889 protects F.2d 711 defendant.’ (6th Cir.1989) added). Mattox, (11th (emphasis 1416, 1419 Smith v. 127 F.3d See also Cir.1997) Adams v. St. Lucie Curtis, County (quoting Kelly Dept., v. 21 F.3d Sheriff’s (11th Cir.1992) F.2d (11th Cir.1994)) (Ed- (alteration monson, J., dissenting) (public original). officials not Relying cases, on one of our obligated to analogies draw Jensen, from Lum v. 876 F.2d cases), banc, rev’d en Cir.1989), the Fourth Circuit remarked “ (11th Cir.1993) curiam) (per (adopting the public officials required ‘are not reasoning of Judge Edmondson’s dissent predict the future course of constitutional and reversing district court’s denial of law’ “[rjarely and that will a state offi summary official). judgment public cial who simply enforces a presumptively valid state statute lose her immunity from Ill Powers, suit.” Swanson I take my issue also with colleagues’ (4th Cir.1991). court con assertion that because the facts yet are not cluded with this wise statement: developed, it early is too in this lawsuit to The ills that would result allowing from dismiss of qualified because immunity. suits for damages against state officials claim This misses thе mark. As held re- simply who perform their official duties by peatedly Supreme Court, the qualified are evident. Suits such as these have immunity is immunity sued, from being not potential the to threaten the foundations just damages. from This principle ex- of our governmental most basic func- (1) plains why the Court in warned case, tions-in this the collection of the Anderson non-specific pleadings revenue. plaintiffs’ Because the assert- allege violations of “extremely ab- ed were not clearly established rights,” 639, stract 483 at U.S. 107 S.Ct. Secretary because acted Powers (2) 3034; and the Court’s holding in Mitch- reasonably in enforcing presumptively Forsyth, 511, v. 526, ell 472 U.S. 105 S.Ct. statutes, valid state we that she hold 2806, (1985) “[ujnless 86 411 L.Ed.2d entitled to immunity from suit. The plaintiffs the allegations state a claim of judgment of the district court is there- law, violation of clearly established a de- fore reversed. fendant qualified pleading immunity is en- Id. at 973. to titled dismissal before the commence- In so far my as colleagues insist on discovery.” ment of The Court revisited borrowing principles contexts, from again Pelletier, this issue in Behrens v. 516 they part Circuit, company with the Sixth 299, 834, U.S. 116 S.Ct. 133 L.Ed.2d 773 which has held: (1996). In the of overruling course a mis-

mayWe impose personal not liability opinion by Circuit, taken the First the upon state said, social workers because Court

1006 that calls resolu- a doctrine to disserve confu- of the First Circuit’s

The source possible “earliest at the tion of the issue of the conception its mistaken sion was Hunter, 502 U.S. litigation. in stage” by qualified afforded scope protection of Kennedy 227, As Justice 112 534. S.Ct. make and Mitchell immunity. Harlow Gilley, Siegert v. said give is meant that the defense clear is a standard heightened pleading merely [t]he right, officials gоvernment re- pleading usual departure from the trial,” “standing but also to avoid Rules of Civil Federal quirements of mat- pretrial of “such avoid burdens 9(b), departs also Procedure 8 and of ..., discovery ‘[ijnquiries ters as summary the normal standard from disruptive of peculiarly kind can be ” But avoidance judgment under Rule government.’ effective very discovery is one of the disruptive of Mitchell, 308, (quoting 116 834 Id. at S.Ct. immunity doc- the official purposes for 526, (quoting 2806 105 S.Ct. U.S. 472 say trine, and it is no answer 817, 800, 457 Fitzgerald, U.S. v. Harlow yet opportunity had the has not plaintiff (1982))) 2727, L.Ed.2d 396 102 S.Ct. discovery. The substantive engage Court, (alterations original). immunity of controls. defense issue, very in 1991 on this reversing us 1789, 236, 226, said, repeatedly have stressed “[W]e (1991) J., (Kennedy, concur- L.Ed.2d immunity ques- resolving importance Wood, v. 47 F.3d also Schultea ring). See litiga- possible stage at the earliest tions Cir.1995) (“When (5th public 1427, 1433 Bryant, 502 Hunter v. tion.” defense pleads official affirmative 534, 116 L.Ed.2d 227, 112 S.Ct. answer, dis- immunity in his qualified Britton, 523 U.S. also See Crawford-El may, on official’s motion trict court 140 L.Ed.2d own, plaintiff to require reply its (“[I]f (1998) plead does the defendant pow- There is a in detail.... that defense defense, the district court should immunity argument substantive erful per- question before resolve that threshold the Feder- immunity supplants In- discovery.”); Maraziti v. First mitting short pleading al scheme Rules’s California, Bank terstate statement.”); Diego Butler v. San plain Cir.1992) (9th (discovery should not be 963- Attorney’s Office, 370 Dist. decided). immunity has been until allowed Cir.2004). their in- my colleagues express Finally, IV plead- to eviscerate the notice “not tention system generally our ing standard” that remains, specific must question how The a lawsuit. I do to commence uses allegedly violated be defined right the this well this caution is suited believe it question the whether to answer order ques- Again, reiterate the context. I Layne, clearly Wilson v. was established? immunity prompt requires qualified of tion 1692, 143 L.Ed.2d S.Ct. require seems resolution. Anderson (1999) example of the good us a gives “no- than the usual Wilson, more pleadings specific In required. degree specificity of least, very plead- At the tice” standard. who that officers the concluded first Court in their individu- state officials ings against into a home- members of media took the alleged demonstrate an capacities must and to record al home observe owner’s relevant particularized an arrest warrant did violation of so execution clearly been of the Fourth Amendment. right which has clear violation constitutional Nevertheless, also the Court concluded Bryant would v. also established. Hunter did so were entitled that the officials who require. To hold otherwise seem to so qualified immunity. The Court said tional rights might sexually these violent the appropriate question “is ... predators this system, but it fails whether a reasonable officer could have utterly when the issue is whether we hold believed that members of me bringing personally individuals liable ex post facto during dia into a home the execution of an for their actions. ” Wilson, warrant arrest was lawful.... proceed This lawsuit should so that spe- 526 U.S. at 119 S.Ct. 1692. Conclud cific answers can be found to the constitu- ing at the time of the violation the law tional questions by plaintiffs, raised undeveloped,” said, was “at best the Court but it proceed should only in connection undeveloped “Given such an state of the possible injunctive declaratory re- law, the officers in this case cannot have lief. To do otherwise govern- will deter ‘еxpected been to predict the future course ment officials the future from doing ” of constitutional law.’ Id. at 119 anything not to the liking of a sexually (quoting S.Ct. 1692 Procunier v. Navar predator. violent penalty making ette, good faith mistake in an area of undevel- (1978)). L.Ed.2d oped may be the law costs of a lawsuit and precedents, From these I conclude that the potential personal liability arising out question the proper in this case is whether of the performance official of a job. state clearly it was established at the time events in this case that the Constitution

prohibited persons position in the of these engaging

individual officials in any from

the behaviors attributed to them in con- nection with the management and treat- MERRICK, Jr., Clinton G. sexually predators civilly ment violent Plaintiff-Appellee, confined under state law for treatment and v. protection public. After

reviewing all PAUL REVERE LIFE relevant cases au- INSURANCE thorities, COMPANY; I answer Provident Life question & Acci- Insurance; negative. Provident, dent Unum De- fendants-Appellants. analytical error made my col- leagues apparent becomes they say, when Merrick, Jr., G. Clinton Thus, there are bodies of two ‍‌‌​​​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌​​‌‌​‌‌‌‌‌​​‌‌​‌​​‌‌​‌‍law from Plaintiff-Appellee, might which we “clearly draw estab- lished” law for immunity pur- Paul Life Company; Revere Insurance first, poses: where the SVPs claim a Insurance; Provident Life & Accident of a right clearly violation that is estab- Provident, Defendants-Appel- Unum lished even in prison context, lants. second, where the claim a violation

of a that is 05-16380, established for Nos. 05-17059. civilly all persons. detained Appeals, United States Court What this acknowledges is that we can- Ninth Circuit. any clearly not find established substantive Argued May 2007. Submitted context, in the SVP so we have to Aug. Filed them from borrow areas. ap- An proach like certainly works well when question unanswered what constitu-

Case Details

Case Name: Hydrick v. McDaniel

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 30, 2007

Citation: 500 F.3d 978

Docket Number: 03-56712

Court Abbreviation: 9th Cir.