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Donaghe v. Lashway

United States District Court, W.D. Washington, Tacoma

October 18, 2017

SAM DONAGHE, Plaintiff,
v.
PATRICIA LASHWAY, et al., Defendants.

          ORDER ON REPORT AND RECOMMENDATION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         THIS ORDER comes before the Court on the Report and Recommendation (Dkt. 47) of Magistrate Judge J. Richard Creatura. The Court has considered Defendants' Objections (Dkt. 48), Plaintiff's Objections (Dkt. 50), and the remainder of the file herein. For the reasons discussed below, the R&R should be adopted in part and rejected in part.

         Facts alleged are discussed in relation to each claim. Unlike the Complaint, the Amended Complaint alleges claims against persons. Compare Dkts. 1-1, 42. The claims can be organized into three types: conditions of confinement claims, Bounds claims, and destruction of personal property claims.

         Defendants' underlying motion seeks dismissal of the Amended Complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The motion also seeks dismissal on several other grounds: Eleventh Amendment, because the Amended Complaint alleges some claims against individuals in their official capacity, respondeat superior, and qualified immunity.

         A. Conditions of Confinement/14th Amendment Claims (Dkt. 42 at §§IV.A-B (Lashway), CD (Clayton), E-F (Vanhook), G-H (Talbot), I-J (Coryell), K (Lopez), L (Cabarcas), O (Eagle), P (Monk), Q (Sasha))

         1. Official capacity claims.

         As a threshold issue, consistent with this Court's prior ruling (Dkt. 41 at 5) the Court concurs with the R&R that claims for damages alleged against persons in their official capacity should be dismissed on Eleventh Amendment grounds. Dkt. 47 at 32.

         The remainder of the analysis in this section thus pertains only to claims for damages alleged against individuals in their individual capacity or to the extent the Amended Complaint alleges claims for relief other than damages against persons in their official capacity.

         2. Claims against Defendant Lashway under theory of respondeat superior.

         The Amended Complaint, Dkt. 42, alleges that Defendant Lashway “is liable to plaintiff . . . for each of her underlying employee's [sic] acts, actions or failures to act[.]” Dkt. 42 at §IV.A.1. Elsewhere, the Amended Complaint alleges actions personal to Defendant Lashway. E.g., id. at §§IV.A.2, A.6, B.3.

         The R&R recommends that “plaintiff's respondeat superior claim should be dismissed with prejudice.” Dkt. 47 at 18. The Court concurs. Attributing actions of an employee to his or her superior is “respondeat superior, ” and such a theory of liability is not viable under the law, and should not be permitted to proceed. While the Court concurs with the Report and Recommendation's analysis concerning the claims against Defendant Lashway, see Dkt. 47 at 16-18, to be clear, respondeat superior is not alleged as a “claim, ” but is rather alleged as one of several theories of liability interwoven within two claims against Defendant Lashway that also allege conduct personal to Defendant Lashway. See Dkt. 42 at §§IV.A-B. Therefore, Defendants' motion to dismiss should be granted to the extent the Amended Complaint alleges claims against Defendant Lashway under a theory of respondeat superior, but the claims may otherwise proceed.

         3. Claims against defendants Clayton, Vanhook, Talbot, Coryell, Lopez, Cabarcas, Eagle, Monk, Sasha, and Lashway.

         i. The Amended Complaint.

         Common to defendants Clayton, Vanhook, Talbot, Coryell, Lopez, Cabarcas and Lashway, the Amended Complaint alleges that Plaintiff, who is civilly detained, receives unconstitutionally deficient mental health treatment in violation of substantive Due Process. More specifically, it is alleged that Plaintiff participates in the Sexual Offender Treatment Program (SOTP), where he receives eight to fifteen hours of mental health treatment per month, whereas criminal counterparts receive twenty-nine to thirty-one hours. Dkt. 42 at §§ IV.A.4[1], B.5, C.3, C.6, D.5, E.2, E.4, E.6, F.6, G.2, G.4, G.9, H.6, I.4, I.6, I.10, J.8, J.10. K.2, K.4, K.6, L.2, L.4-6, L.10.

         Under the same theory that Plaintiff has been denied substantive Due Process based on “more restrictive” conditions of confinement than criminal counterparts, the Amended Complaint enumerates the following conditions as constitutionally insufficient against defendants VanHook, Talbot, Coryell, Eagle, Monk, and Sasha: horse shoe pits with horse shoes, baseball fields with baseball equipment, untethered weight lifting equipment, outside handball courts, outside volleyball sand pits, library services, 8 (eight) hour visitations, overnight conjugal visits, overnight family visits, video internet visits, email services, “bio-metric communication services, ” vendor access, and facility store access. Id. at §§IV.E.8, F.4, G.13, H.2, H.5, O.4, P.4, Q.2, R.2. The Amended Complaint does not articulate how each of these enumerated items is deficient in comparison to criminal counterparts.

         Finally, the Amended Complaint alleges that defendants VanHook, Talbot, Coryell, and Sasha denied Plaintiff access to “TV-14 Mature or Higher” media, whereas criminal counterparts are held to less restrictive limitations on their media usage. Dkt. 42 at §§IV.E.16, G.14, J.2, J.6, J.7, Q.2. It is further alleged that “SOTP professional standards or SOTP empirical data does not support the therapeutic need” to limit such media. Id. at § IV.G.15.

         It is necessary to correct course on the authority relevant to resolving the motion. This Court, along with the Magistrate Judge and Plaintiff, have probably relied too heavily on Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004). Jones applies to persons who are detained for purposes of trial, known in the criminal context as “pretrial, ” and they are detained to adjudicate the issue of involuntary civil commitment. Jones at 931-32. In this case, there is no allegation that Plaintiff was detained for purposes of trial, so Jones should be applied cautiously. The comparison in conditions of confinement between civilly detained persons and criminally punished persons originates from Youngberg v. Romeo, 457 U.S. 307 (1982), a civil detention case with a substantive Due Process standard that includes-but requires more than-such a comparison. See Youngberg, 457 U.S. at 321-22.

         ii. Substantive Due Process Standard and Discussion

         Civilly committed person have a substantive Due Process right to minimally adequate care and treatment. Youngberg, 457 U.S. at 318-20. “In determining whether a substantive right . . . has been violated, it is necessary to balance the liberty of the individual and the demands of an organized society.” Id. at 320. “Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals[.]” Id. However, [i]f there is to be any uniformity in protecting these interests, this balancing cannot be left to the unguided discretion of a judge or jury.” Id. To reach the proper balance, “the Constitution only requires that the courts make certain that professional judgment in fact was exercised” in caring for the civilly committed person. Id. Decisions, “if made by a professional, [are] presumptively valid, ” and liability may be imposed only when the decision is [a] substantial departure from accepted professional judgment, practice, or standards[.]” Id. at 322. Stated differently, “[t]he Fourteenth Amendment requires that civilly committed persons ...


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