United States District Court, W.D. Washington, Tacoma
ORDER ON REPORT AND RECOMMENDATION
J. BRYAN UNITED STATES DISTRICT JUDGE.
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.
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
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.
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))
Official capacity claims.
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.
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.
Claims against Defendant Lashway under theory of respondeat
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.
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.
Claims against defendants Clayton, Vanhook, Talbot, Coryell,
Lopez, Cabarcas, Eagle, Monk, Sasha, and Lashway.
The Amended Complaint.
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, 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.
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
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.
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.
Substantive Due Process Standard and Discussion
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 ...