Endsley v. Mayberg

Decision Date22 November 2010
Docket NumberNo. CIV S-09-2311 WBS GGH P,CIV S-09-2311 WBS GGH P
CourtU.S. District Court — Eastern District of California
PartiesMARC ANTHONY LOWELL ENDSLEY, Plaintiff, v. STEPHEN MAYBERG, et al., Defendants.
ORDER &amp FINDINGS AND RECOMMENDATIONS
Introduction

Plaintiff pro se, civilly committed to a state mental hospital, seeks relief pursuant to 42 U.S.C. § 1983, and is proceeding in forma pauperis. Pending before the court are: 1) a motion to dismiss claim one of plaintiff's complaint, brought on behalf of defendants Mayberg Malancharuvil, Luna, DeMorales and Radavsky, filed on March 11, 2010, to which plaintiff filed an opposition on March 28, 2010 (following the court's show cause order for his failure to file a timely opposition, filed on April 14, 2010), after which defendants filed their reply on May 4 2010; 2) plaintiff's motion for leave to amend his complaint, filed on April 28, 2010, to which the court, on July 16, 2010, directed defendants to file any opposition, which they did on August 4 2010; 3) plaintiff's motion for partial summary judgment, filed on September 16, 2010, after which, on September 23, 2010, defendants requested a denial or continuance of the motion.

As to plaintiff's motion for partial summary judgment, the court agrees with defendants that the question of the constitutionality of plaintiff's first claim for relief was yet to be decided at the time plaintiff brought this motion which rests on the same first claim. See motion for partial summary judgment and defendants' opposition thereto. In addition, at the time of the partial summary judgment motion, no ruling had yet been made as to plaintiff's motion for leave to amend to add new claims and parties. No answer has been filed and no discovery and scheduling order has yet issued. The motion will be vacated without prejudice as premature.

Complaint

Plaintiff contends his constitutional rights were violated when he, committed to a state mental hospital as a result of having been found not guilty by reason of insanity in a criminal matter, 1 was on May 29, 2008, transferred from Patton State Hospital to Atascadero State Hospital, which he maintains is more restrictive, without notice or due process of law. Complaint, pp. 4-5. Plaintiff also claims that he was deprived of his property without due process. Id. He further contends that the transfer was retaliatory. Id., at 5.

Plaintiff, committed to Patton on May 23, 1997, pursuant to Cal. Penal Code § 1026, claims that he, as a civilly committed person, is entitled to the least restrictive environment under state and federal law. Complaint, pp. 4, 6. He claims the difference between Patton and Atascadero is "like night and day," contending that Patton is a co-ed facility with a significantly more humane environment. Id., at 6. At Atascadero, an all-male facility, plaintiff no longer has access to unsupervised showers at any time, electrical outlets by the bed, comfortable beds and personal property such as televisions, radios, video game consoles, CD's and DVD's, battery chargers and detachable cords, etc. Id. Patton also has secure lockers in patient rooms and patients there can have change for use in vending and copy machines. Id. By contrast, plaintiff claims that Atascadero has been identified by a state court as more restrictive than most maximum security prisons and that patients there are treated like prisoners in a prison-like setting. Id., at 7.

Plaintiff claims that he has a "substantive right to the least restrictive conditions" which "survives his refusal to participate in treatment," and contends that state regulations "prohibit" a facility transfer for an inmate's "refusing treatment." Complaint, p. 7. Plaintiff avers that under Cal. Penal Code § 1026, he is afforded procedural due process guarantees, that his placement is a court decision and the court must notify plaintiff prior to ordering his transfer and he is entitled to a hearing to contest any proposed transfer. Id.

Plaintiff, rather histrionically, maintains that defendants Mayberg, Luna and Malancharuvil proximately caused his "kidnapping under P.C. § 207 et seq. by causing plaintiff to be arrested and transferred to ASH [Atascadero]." Complaint, p. 8. He maintains that defendants Mayberg and Luna have been sued for prior illegal transfers, asserting that in one such instance, the case was apparently settled and not published. Id. Plaintiff alleges that defendant Mayberg has failed to promulgate constitutionally adequate transfer procedures and to reverse plaintiff's putatively unconstitutional transfer. Id. Plaintiff alleges that defendants "Mayberg, Radavsky, Malacharuvil, Luna and DeMorales contributed to and proximately caused the tort of dependent adult abuse under P.C. § 368 et seq." Id.

Plaintiff further alleges that he has been subjected to substantive and procedural due process by the confiscation of his property as contraband. Complaint, p. 9. He claims that Atascadero's definition of contraband is unconstitutional because the patient property restrictions were not appropriately promulgated, are punitive rather than comporting with appropriate standards for the mentally ill and are unfairly disparate from other mental health facilities. Id. Plaintiff claims that he demanded his property in a letter on June 9, 2008, to defendants Mayberg and DeMorales, and defendant Radavsky responded on Mayberg's behalf that plaintiff's property could be held indefinitely at the discretion of the Department of Mental Health. Id., at 9-10. Plaintiff alleges this action is unconstitutional, depriving him of procedural due process. Id., at 10-11.

Plaintiff also claims that his transfer was retaliatory because he has two § 1983 complaints pending against defendant Luna, along with two state civil complaints filed against defendants Luna and Malancharuvil and that he has "filed countless Patton grievances." Complaint, p. 12. (The court notes the irony of plaintiff's adamant protest at having been transferred from a facility where he apparently was manifestly dissatisfied). Plaintiff also alleges that a separate basis for his transfer was that he was refusing treatment. Id. Plaintiff alleges that the transfer on these bases violates his constitutional right to court access as well as state law and imputes these violations to defendants Mayberg, Luna and Malancharuvil. Id., at 12-13.

As relief, plaintiff seeks money damages and declaratory relief, as well as injunctive relief in the form of a transfer to a less restrictive setting, at a minimum to Patton, pursuant to state law, Cal. Welf. & Inst. Code § 5358, 2 asking this court to assert supplemental jurisdiction over his state law claims, pursuant to 28 U.S.C. § 1367. Complaint, pp. 14-17.

Motion to Dismiss
Legal Standard for Motion to Dismiss

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id.., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 85 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

Motion

Defendants move for dismissal of plaintiff's first claim, pursuant to Fed. R. Civ. P 12(b)(6), that his transfer violated his substantive and procedural due process rights on the ground that plaintiff "failed to state a claim upon which relief can be granted...."3 Notice of Motion to Dismiss (MTD), pp. 1-2. Defendants contend that plaintiff has failed to state...

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