Hydrick

ORDER

The concurrence/dissent filed June 1, 2006, is hereby amended. The clerk shall filed the attached amended concurrence/dissent.

OPINION

Plaintiffs-Appellees represent a class of approximately 600 civilly committed persons and those awaiting commitment at Atascadero State Hospital pursuant to California’s Sexually Violent Predators Act (“SVP Act”). In this suit, Plaintiffs allege that the conditions of their confinement violate their constitutional rights. They request declaratory and injunctive relief, as well as monetary damages. Defendants filed a motion to dismiss based largely on qualified immunity, but their motion was summarily denied by the district court. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part, and reverse in part.

FACTUAL BACKGROUND

1. California’s Sexually Violent Predators Scheme

The SVP Act defines an SVP as a person “convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others” i.e., is “likely [to] engage in sexually violent criminal behavior.” See Cal. Welf. &…

concurring in part and dissenting in part:

I

My disagreement with my colleagues is limited to one critical issue. We agree that plaintiffs cannot seek damages in this lawsuit against state officials in their official capacities, and that plaintiffs cannot *703 seek damages from the State either. So, what is left where the officials are concerned? A lawsuit against them personally for acts and omissions alleged to have been taken in the discharge of their official duties. This is a mistake, and it is here that I part company.

On this record, and under these circumstances, I conclude, with all respect to my colleagues, that these officials as individuals are clearly entitled to qualified immunity against both suit and damages — now, not later. In my view, the particulars and the contours of the alleged constitutional rights upon which the plaintiffs rely were not so clearly established at the times under scrutiny and at the level of specificity required such that a reasonable official hired by the state to cope pursuant to statutory authority with lawfully confined sexually violent predators subject to remedial treatment would have been aware that the conduct alleged violated…