1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SIVA D. BLACK, Case No. 22-cv-05037-JD

8 Plaintiff,

ORDER RE SERVICE

v. 9

10 DEPARTMENT OF STATE HOSPITALS, et al., 11 Defendants.

12 13 Plaintiff, a former patient at Napa State Hospital, filed a pro se civil rights complaint under 14 42 U.S.C. § 1983. In the Court’s initial screening order, plaintiff’s original and first amended 15 complaints were dismissed with leave to amend. Plaintiff has filed a second amended complaint 16 (SAC). The due process claims are dismissed with prejudice. The religious practices claims will 17 go forward. 18 DISCUSSION 19 STANDARD OF REVIEW 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 23 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 24 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 25 pleadings are liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 26 1990). 27 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 1 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 2 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 4 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 5 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 6 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 7 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 8 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 9 should assume their veracity and then determine whether they plausibly give rise to an entitlement 10 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 12 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 13 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 14 LEGAL CLAIMS 15 Plaintiff’s main claim is that he is being involuntary medicated in violation of his religious 16 beliefs. The SAC also appears to allege due process claims, in considerably less clear and 17 emphatic terms. In light of plaintiff’s pro se status, the Court will assume such claims have been 18 presented. 19 The Supreme Court has recognized a liberty interest in freedom from unwanted 20 antipsychotic drugs. Washington v. Harper, 494 U.S. 210, 221-22 (1990); United States v. Ruiz- 21 Gaxiola, 623 F.3d 684, 691 (9th Cir. 2010). For convicted inmates, or those awaiting trial, the 22 “liberty interest in avoiding unwanted medication must be defined in the context of the inmate’s 23 confinement.” United States v. Loughner, 672 F.3d 731, 745 (9th Cir. 2012) (quoting Harper, 494 24 U.S. at 222). If it is determined that an inmate is a danger to himself or others, and treatment in 25 his medical interest, the Due Process Clause allows the State to treat an inmate with serious mental 26 illness with antipsychotropic drugs against his will. See Harper, 494 U.S. at 227; Riggins v. 27 Nevada, 504 U.S. 127, 135 (1992). Such treatment requires a determination by a neutral factfinder 1 application. See Kulas v. Valdez, 159 F.3d 453, 455-56 (9th Cir. 1998); Harper, 494 U.S. at 233 2 (administration of antipsychotic drugs “cannot withstand challenge if there are no procedural 3 safeguards to ensure the prisoner's interests are taken into account.”). 4 Although a prisoner has the right to be present at and participate in a pretreatment hearing, 5 this requirement may be relaxed in an emergency situation where the prisoner poses an imminent 6 and serious danger to himself or others. See Kulas, 159 F.3d at 456; Loughner, 672 F.3d at 754. 7 A decision to forcibly medicate because of dangerousness need not meet any heightened standard 8 of proof in order to comport with due process. Loughner at 756. An inmate is not entitled to 9 counsel at an involuntary medication hearing. Id. at 756-57. 10 In California, the procedural requirements for involuntary medication of prisoners are 11 stated in Keyhea v. Rushen, 178 Cal.App.3d 526 (Cal. Ct. App. 1986). “A Keyhea order permits 12 the long-term involuntary medication of an inmate upon a court finding that the course of 13 involuntary medication is recommended and that the prisoner, as a result of mental disorder, is 14 gravely disabled and incompetent to refuse medication, or is a danger to himself or others.” Davis 15 v. Walker, 745 F.3d 1303, 1307 n.2 (9th Cir. 2014). 16 For plaintiff’s religious beliefs claim, Section 3 of the Religious Land Use and 17 Institutionalized Persons Act (“RLUIPA”) applies. “No government shall impose a substantial 18 burden on the religious exercise of a person residing in or confined to an institution, as defined in 19 section 1997 [which includes state prisons, state psychiatric hospitals, and local jails], even if the 20 burden results from a rule of general applicability, unless the government demonstrates that 21 imposition of the burden on that person (1) is in furtherance of a compelling governmental 22 interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 23 42 U.S.C. § 2000cc-1(a). The statute applies “in any case” in which “the substantial burden is 24 imposed in a program or activity that receives Federal financial assistance.” 42 U.S.C. § 2000cc- 25 1(b)(1). RLUIPA grants a private right of action: “A person may assert a violation of [RLUIPA] 26 as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 27 42 U.S.C. § 2000cc-2(a); cf. § 2000bb-1(c). For purposes of this provision, “government” 1 other person acting under color of state law.” 42 U.S.C. § 2000cc-5(4)(A). 2 “To state a claim under RLUIPA, a prisoner must show that: (1) he takes part in a 3 “religious exercise,” and (2) the State's actions have substantially burdened that exercise. See 4 Shakur v. Schriro, 514 F.3d 878, 888-89. If the prisoner satisfies those elements, then the State 5 must prove its actions were the least restrictive means of furthering a compelling governmental 6 interest. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir.2005).” Walker v. Beard, 789 F.3d 7 1125, 1134 (9th Cir. 2015). 8 To establish a free exercise violation, a prisoner must show a defendant burdened the 9 practice of his religion without any justification reasonably related to legitimate penological 10 interests. See Shakur, 514 F.3d at 883-84. A prisoner is not required to objectively show that a 11 central tenet of his faith is burdened by a prison regulation to raise a viable claim under the Free 12 Exercise Clause. Id. at 884-85. Rather, the test of whether the prisoner’s belief is “sincerely held” 13 and “rooted in religious belief” determines the Free Exercise Clause inquiry. Id. The prisoner 14 must demonstrate that the religious practice satisfies two criteria: (1) the proffered belief must be 15 sincerely held and (2) the claim must be rooted in religious belief, not in purely secular 16 philosophical concerns. Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (cited with approval in 17 Shakur, 514 F.3d at 884). 18 In the original and first amended complaints, plaintiff said that he was subjected to forced 19 medication with antipsychotic drugs in violation of his religious beliefs and arguably his due 20 process rights. Plaintiff stated that he is a member of the Cult of Santo Daime, which has the 21 belief that adherents may never be dependent on anything but the deity. He contends the 22 involuntary medication forced him to become dependent on drugs in violation of this tenet. He 23 also indicates that having “visions” allowed him to “resonate on higher spiritual frequencies in 24 order to communicate, receive guidance, from higher beings, the super soul, etc.” Dkt. No. 1 at 6. 25 These claims must be construed in light of plaintiff’s significant history of mental illness, 26 which is documented by exhibits plaintiff attached to the original complaints and deemed 27 incorporated by reference for present purposes, see Jones v. Progressive Cas. Ins. Co., Case No. 1 documents include an order by the Siskiyou County Superior Court with respect to involuntary 2 medication. Dkt. No. 1-1 at 2-5. A doctor for the state hospital testified that plaintiff had a 3 diagnosis of schizophrenia and psychotic disorder, and suffered from paranoia and delusions. Id. 4 at 5. The doctor testified that plaintiff needed medication for treatment of these disorders and had 5 not shown any side effects from the medication. Id. Medical and other records indicated that 6 plaintiff had a history of severe symptoms including impulsive aggression and involuntary 7 psychiatric hospitalizations. Id. at 12-13. Plaintiff was deemed incompetent to stand trial in 8 Massachusetts in 2011 for armed assault with intent to murder. Id. The superior court found that 9 plaintiff lacked the capacity to make decisions regarding antipsychotic medication and that if the 10 mental disorder was not treated, he would be subject to serious harm to his physical or mental 11 health. Id. at 3-4. 12 The Court dismissed the complaints here with leave to amend because plaintiff had not 13 plausibly alleged a due process violation with respect to forced medication. He received the 14 required due process, and the record reflected that he was at serious risk to himself without 15 medication. In addition, the complaints did not adequately allege a sincerely held religious belief 16 or indicate why the hospital did not have a legitimate penological interest in keeping plaintiff and 17 others safe. 18 The SAC again did not plausibly allege a violation of his due process rights with respect to 19 involuntary medication, particularly in light of the proceedings in Siskiyou County Superior 20 Court. The documents attached to the original complaint demonstrate that plaintiff was afforded 21 ample due process with respect to medication. Consequently, given the prior opportunities to 22 amend, and the virtual certainty that further amendment would be futile, a due process claim is 23 dismissed with prejudice. 24 For the RLUIPA and First Amendment claims, the Court will assume at this stage of the 25 case, albeit with some reservations, that plaintiff holds sincere beliefs about “visions” and 26 “dependency” that are substantially burdened by forced medication. The question then is whether 27 the administration of antipsychotic medication was the least restrictive means of serving a 1 good argument in that direction, it will require defendants to make their case on the question. 2 CONCLUSION 3 1. All due process claims are dismissed with prejudice. Defendants will file a motion 4 responding to the RLUIPA and First Amendment claims. The case is stayed in all other respects 5 pending further order. 6 2. The case will go forward against the California Department of State Hospitals, 7 Cindy Black, Dr. Sarah J. Polfliet and Dr. Ahmed. The Clerk will issue a summons and the 8 United States Marshal will serve, without prepayment of fees, copies of the complaint (Dkt. No. 9) 9 with attachments and copies of this order on the California Department of State Hospitals, Cindy 10 Black Executive Director of Napa State Hospital, Dr. Polfliet at Napa State Hospital and Dr. 11 Ahmed of Unit Q-9 at Napa State Hospital 12 3. In order to expedite the resolution of this case, the Court orders as follows: 13 a. No later than thirty-five days from the date of service, defendants will file 14 a motion for summary judgment or other dispositive motion. The motion will be supported by 15 adequate factual documentation and shall conform in all respects to Federal Rule of Civil 16 Procedure 56, and will include as exhibits all records and incident reports stemming from the 17 events at issue. If defendant is of the opinion that this case cannot be resolved by summary 18 judgment, he will so inform the Court prior to the date his summary judgment motion is due. All 19 papers filed with the Court will be promptly served on the plaintiff. 20 b. At the time the dispositive motion is served, defendants will also serve, on a 21 separate paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953- 22 954 (9th Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 23 See Woods v. Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (Rand and Wyatt notices must be 24 given at the time motion for summary judgment or motion to dismiss for nonexhaustion is filed, 25 not earlier); Rand at 960 (separate paper requirement). 26 c. Plaintiff’s opposition to the dispositive motion, if any, will be filed with the 27 Court and served upon defendants no later than twenty-eight days from the date the motion was 1 is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), 2 and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). 3 If defendants file a motion for summary judgment claiming that plaintiff failed to exhaust 4 || his available administrative remedies as required by 42 U.S.C. § 1997e(a), plaintiff should take 5 || note of the attached page headed “NOTICE -- WARNING (EXHAUSTION),” which is provided 6 to him as required by Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 4 (9th Cir. 2003). 7 d. If defendants wish to file a reply brief, they shall do so no later than 8 fourteen days after the opposition is served upon him. 9 e. The motion shall be deemed submitted as of the date the reply brief is due. 10 || No hearing will be held on the motion unless the Court so orders at a later date. 11 4. All communications by plaintiff with the Court must be served on defendants, or 12 || defendants’ counsel once counsel has been designated, by mailing a true copy of the document to 13 defendants or defendants’ counsel. 14 5. It is plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court 15 informed of any change of address by filing a separate paper with the clerk headed “Notice of a 16 || Change of Address.” He also must comply with the Court’s orders in a timely fashion. Failure to 3 17 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 18 Civil Procedure 41(b). 19 IT IS SO ORDERED. 20 || Dated: February 6, 2023 21 22

JAMES TO

23 United Stf#tes District Judge 24 25 26 27 28

1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. 20 You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. 25 If defendants file a motion for summary judgment for failure to exhaust and it is granted, 26 your case will be dismissed and there will be no trial.

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