Hydrick v. Hunter

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES ALLEN HYDRICK; DAVID 

LANPHERE; SHAUNDALE GRIFFIN;

FRANK CISNEROS; PAUL PEDERSON;

STEVEN ROBERT CERNIGLIA; GARY

PRICE; DANIEL MROWICI; KENNETH

CIANCIO; MICHAEL MCCLURE; JAMES

MATA; RICHARD BISHOP; MELVIN

FIELDS; RON LEE; LEONARD PIERRE;

No. 03-56712

THOMAS PRICE; JIMMY GUTHRIE;

BRIAN KELLY; WOODROW JONES; D.C. No.

VASHON JACKSON; BRUCE RILEY; CV-98-07167-TJH

FRED SCOTT; DEAN DANFORTH;  ORDER AND

SAMMY PAGE; JAMES PETERS; AMENDED

GRAYLING MITCHELL; CARLOS CONCURRENCE/

SAUCEDO; ANTHONY DACAYONA; DISSENT

CHARLES SALAS, et al.,

Plaintiffs-Appellees,

v.

MELVIN E. HUNTER, aka/Jon

DeMorales; CRAIG NELSON;

GRENDA ERNST,

Defendants-Appellants,



11969

11970 HYDRICK v. HUNTER

and 

ROBERT MCDANIEL; JERRY

REYNOLDS; ROBERT PENATE;

SAMUEL ROBINSON; MARK

MAHHONEY; STEPHEN MAYBERG;

ANITA JUDD; MICHAEL HUGHES; JIM

VESS; JACK TOWNSEND; MARK

PALMER; ROCKY SPURGEON; ARNIE

GOBBELL; JIM WILEY; MARK

KALIONZES; ELAINE SHERRILL; GLAN

MIKEL; JAN MAIRE ALARCON;



BARUCH MARGALIT; WILLIAM

KNOWLTON; DIANE IMRAM; CARMEL

MULLER; DALE ARNOLD; GABRIELLA

PALADINO; JEAN DANSEREAU, et al.;

WILLIAM CHARLES THIEL; ROBERT

DOUGLAS LEFORT; ARNOLD

SCHWARZENEGGER, Governor of

California,

Defendants.



Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Chief District Judge, Presiding

Argued and Submitted

April 5, 2005—Pasadena, California

Filed June 1, 2006

Amended September 28, 2006

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson

and Stephen S. Trott, Circuit Judges.

Opinion by Judge Pregerson;

Partial Concurrence and Partial Dissent by Judge Trott

11976 HYDRICK v. HUNTER

COUNSEL

Randall R. Murphy, Deputy Attorney General, Los Angeles,

California, for the defendants-appellants.

Kathryn M. Davis, Latham & Watkins, Los Angeles, Califor-

nia, for the plaintiffs-appellees.

ORDER

The concurrence/dissent filed June 1, 2006, is hereby

amended. The clerk shall filed the attached amended concur-

rence/dissent.

HYDRICK v. HUNTER 11977

OPINION

PREGERSON, Circuit Judge:

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 BACKGROUND1

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. & Inst.

Code § 6600(a).2 At least six months before a person who has

committed the predicate offenses is to complete his sentence,

he is evaluated by the Department of Corrections and Depart-

ment of Mental Health. Id. § 6601. If those two departments

agree that the person evaluated may be an SVP, a petition for

commitment may be filed by the district attorney or counsel

1

The following facts are taken from the complaint and are assumed to

be true for purposes of reviewing this motion to dismiss.

2

Although the SVP Act is gender-neutral, there was only one female

SVP at the time of the filing of this complaint. She was not housed at

Atascadero, and was, therefore, not included as part of the Plaintiffs’ class.

11978 HYDRICK v. HUNTER

for the county in which the evaluated person was convicted.

Id. § 6601(i). If that person is found by a jury to be an SVP

who poses a danger to the health and safety of others, he is

civilly committed for an indefinite period to commence

after his criminal sentence is fulfilled. Id. §§ 6602-6604.

Once civilly committed, Plaintiffs undergo a five-phase

treatment program. Phase One comprises group sessions that

educate the SVP about California’s SVP Act. During Phase

One, the SVP is required to attend and participate in the treat-

ment sessions. If he does not, his access level3 is reduced and

he is not allowed to advance to Phase Two of the treatment

program. In addition, an SVP’s failure to attend or participate

in the treatment sessions is used against him at future proba-

ble cause and confinement hearings. The SVP cannot advance

beyond Phase One unless he signs a statement in which he

acknowledges that he has an “illness” that requires “treat-

ment.” Plaintiffs allege that the signed statements are often

used against the SVP in future probable cause and confine-

ment hearings.

Phases Two through Five of the treatment plan involve

“cognitive” treatment. This treatment includes viewing videos

that depict violent or other inappropriate sexual activities

while a repugnant odor or other unpleasant sensation is

applied to elicit a negative association.

Each year, a committed person has a right to a show cause

hearing to determine whether his commitment should be con-

tinued. Id. § 6605(a)-(b). If it is found that the SVP continues

to be a danger to the health or safety of the community, the

3

As explained in the complaint, all persons at Atascadero are assigned

an Access Level that dictates access to various facilities and privileges. A

Level 1 patient may not leave his unit without an escort, a Level 2 patient

may leave his unit, but cannot go to the courtyard or canteen, a Level 3

patient may have some access to the law library, canteen and courtyard,

etc.

HYDRICK v. HUNTER 11979

person is committed for two years from the date of the find-

ing. Id. § 6605(e). These successive periods of commitment

can be continued indefinitely, or until the SVP completes all

five phases of treatment. Upon successful completion of

Phase Five, the SVP is conditionally released under the super-

vision of the California Mental Health Department. According

to Plaintiffs, “only a handful of SVPs have been allowed into

Phase Four and no SVP has progressed to Phase Five or ha[s]

been found to be ready for release under the treatment protocol.”4

2. The Current Lawsuit

On September 2, 1998, Plaintiffs filed a pro se class action,

under 42 U.S.C. § 1983, in district court against Defendants-

Appellants Stephen Mayberg (Director of the California

Department of Mental Health), Cal A. Terhune (Director of

the California Department of Corrections), Jon DeMorales

(former Executive Director at Atascadero State Hospital),

Grenda Ernst (Clinical Administrator at Atascadero State

Hospital), and Craig Nelson (Senior Psychologist Specialist at

Atascadero State Hospital) (collectively “Defendants”). Plain-

tiffs sought injunctive and declaratory relief, as well as mone-

tary damages, on the grounds that the policies and procedures

that govern Plaintiffs’ confinement and treatment at Atas-

cadero State Hospital violate Plaintiffs’ constitutional rights.

In March 1999, the district court appointed pro bono coun-

sel for Plaintiffs. Counsel filed an amended complaint approx-

imately five months later. Defendants filed a motion to

dismiss. The motion to dismiss raised Eleventh Amendment

and qualified immunity defenses. The district court denied

Defendants’ motion in a one line order.

Plaintiffs filed a second amended complaint on August 14,

4

At oral argument it was alleged that, since the time Plaintiffs filed their

complaint, three (of the over seven hundred) people committed under the

Sexually Violent Predators Act have been released into their communities.

11980 HYDRICK v. HUNTER

2002.5 Both the first and second amended complaints alleged

that Defendants violated Plaintiffs’ rights by, inter alia: (1)

force-medicating Plaintiffs in non-emergency situations; (2)

reducing Plaintiffs’ access levels and other privileges as a

form of punishment for refusing to participate in treatment

sessions or as retaliation for filing lawsuits; (3) putting Plain-

tiffs in restraints for nonthreatening and/or nondisruptive con-

duct, including the refusal to participate in treatment or

therapy; (4) subjecting Plaintiffs to public strip-searches

(sometimes while in four-point restraints); (5) failing to pro-

tect Plaintiffs from abuse of other patients or of Atascadero

employees; (6) failing to provide Plaintiffs with constitution-

ally satisfactory conditions of confinement; (7) forcing Plain-

tiffs to participate in treatment; and (8) denying Plaintiffs

adequate treatment, thereby converting Plaintiffs’ civil con-

finement to a de facto extension of their prison sentence.

Once again, Defendants moved to dismiss the second

amended complaint, on the same grounds presented in their

first motion to dismiss. The district court again denied Defen-

dants’ motion to dismiss in a one line order. Defendants

timely filed their notice of appeal. Defendants contend that

the district court erred by failing to rule that the Eleventh

Amendment, state abstention doctrine, or qualified immunity

barred Plaintiffs’ suit.

ANALYSIS

A. Standard of Review

We review de novo the district court’s denial of a motion

to dismiss. Decker v. Advantage Fund, Ltd., 362 F.3d 593,

595-96 (9th Cir. 2004). Immunity under the Eleventh Amend-

ment presents a question of law, which we review de novo.

5

The second amended complaint substituted Melvin Hunter, the current

Executive Director at Atascadero State Hospital, for Jon DeMorales, the

former Executive Director, but contained no substantive alterations.

HYDRICK v. HUNTER 11981

See Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001).

To determine if Defendants are entitled to qualified immunity,

we review de novo whether governing law was clearly estab-

lished at the time of the alleged violation and whether the spe-

cific facts alleged constitute a violation of established law.

See Mabe v. San Bernardino County Dept. of Pub. Soc.

Servs., 237 F.3d 1101, 1106 (9th Cir. 2001).

Although a district court’s denial of a motion under Federal

Rule of Civil Procedure 12(b)(6) is not ordinarily appealable,

the denial of a claim for immunity is appealable before final

judgment under the collateral order doctrine and is reviewed

de novo. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.

1999). All allegations of material fact are accepted as true and

should be construed in the light most favorable to Plaintiffs.

See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The

“complaint should not be dismissed [under Rule 12(b)(6)]

unless it appears beyond doubt that the plaintiff can prove no

set of facts in support of the claim that would entitle the plain-

tiff to relief.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.

2002).

We note, again, the special difficulty of deciding the

motion to dismiss a Defendant on qualified immunity grounds

at this stage. Under the notice pleading standard of the Fed-

eral Rules, plaintiffs are only required to give a “short and

plain statement” of their claims. Fed. R. Civ. Pro. 8(a)(2).

Thus, “[w]hen a federal court reviews the sufficiency of a

complaint, before the reception of any evidence either by affi-

davit or admissions, [our] task is necessarily a limited one.

The issue is not whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support

the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

As we recognized in Kwai Fun Wong v. United States, 373

F.3d 952 (9th Cir. 2004), a motion to dismiss on qualified

immunity grounds puts the court in the difficult position of

deciding “far-reaching constitutional questions on a non-

11982 HYDRICK v. HUNTER

existent factual record.” Id. at 957. We strongly suggested

that, while “government officials have the right . . . to raise

. . . qualified immunity defense on a motion to dismiss, the

exercise of that authority is not a wise choice in every case.”

Id. We find that especially true here. The policy justifying

qualified immunity motions at this stage is to protect officers

against the burden of discovery and pre-trial motions. Behrens

v. Pelletier, 516 U.S. 299, 308 (1996). In this case, the parties

had already engaged in discovery for several years, and it

appears that discovery was almost complete. Defendants

could have presented this as a motion for summary judgment,

and we would have a more developed factual record to guide

our decision. Because Defendants’ motion is framed as a

motion to dismiss, we must evaluate the merits of Defendants’

qualified immunity defense before we know the full extent of

the alleged abuses at Atascadero, or the reason behind Atas-

cadero policy, or the level of involvement Defendants had in

creating the conditions at Atascadero. As we decide Defen-

dants’ motion, however, we are cautious not to eviscerate the

notice pleading standard in suits where qualified immunity is

at issue. See Galbraith v. County of Santa Clara, 307 F.3d

1119, 1125-26 (9th Cir. 2002).6

6

With all respect to our dissenting colleague, Plaintiffs’ complaint states

more than “violations of extremely abstract rights.” See Dissent at 5962

(citing Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). Maybe

Plaintiffs can support these claims with evidentiary support and maybe

they can’t. Maybe Defendants can justify their behavior, or at least con-

vince us that their conduct was not clearly in violation of Plaintiffs’ rights.

But the point of the Rule 12(b)(6) motion is not to evaluate the veracity

of Plaintiffs’ allegations, or to speculate as to Defendants’ justifications

for their actions. Rather, unless it is “beyond doubt” that the plaintiff can-

not prove facts that would entitle him to relief, the Rule 12(b)(6) motion

must be denied. See Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). The

standard is no different for a civil rights claim than for any other claim.

See Galbraith, 307 F.3d at 1125-26.

HYDRICK v. HUNTER 11983

B. The Law of the Case Doctrine Does Not Apply

Plaintiffs argue that under the law of the case doctrine, we

should not reach the merits of Defendants’ appeal because

Defendants’ second motion to dismiss was barred by the dis-

trict court’s ruling that denied Defendants’ first motion to dis-

miss. The relevant facts are as follows: after Plaintiffs filed

their first amended complaint, Defendants filed a motion to

dismiss on the grounds of failure to state a claim and qualified

immunity. The district court denied Defendants’ motion in a

summary order, and Defendants did not appeal. Plaintiffs filed

a second amended complaint, in which they changed only the

name of one of the Defendants. Defendants then filed a

motion to dismiss on grounds substantially similar to those

stated in the first motion to dismiss. The district court again

denied the motion to dismiss in a summary order. Plaintiffs

argue that Defendants’ second motion to dismiss is an imper-

missible “second bite at the apple” and should be dismissed

under the law of the case doctrine.

[1] “Under the ‘law of the case’ doctrine, a court is ordinar-

ily precluded from reexamining an issue previously decided

by the same court, or a higher court, in the same case.” Rich-

ardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)

(citations omitted). For the law of the case doctrine to apply,

“the issue in question must have been ‘decided explicitly or

by necessary implication in [the] previous disposition.’ ”

United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th

Cir. 2000) (citing Liberty Mutual Ins. Co. v. EEOC, 691 F.2d

438, 441 (9th Cir. 1982)); United States v. Cote, 51 F.3d 178

(9th Cir. 1995) (“[T]he law of the case acts as a bar only when

the issue in question was actually considered and decided by

the first court.”).

[2] The district court denied Defendants’ first motion to

dismiss and their second motion to dismiss in a summary

order. Thus the district court’s grounds for rejecting Defen-

dants’ two motions are not explicit. Nor can we say that any

11984 HYDRICK v. HUNTER

issue was decided by implication in the first summary order

denying Defendants’ first motion to dismiss. Either motion

could have been denied for any number of procedural or tech-

nical reasons unrelated to the substance of the motions. It is

possible that Defendants’ second motion was denied based on

the law of the case doctrine, or that the district court decided,

in its discretion, not to apply the law of the case doctrine due

to subsequent changes in the law, or the “manifest injustice”

that would result given the new party to the suit. See United

States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997).

Because it is impossible for us to determine the basis of denial

of either motion, we conclude that the “law of the case” does

not apply and address the appeal on the merits.

C. Eleventh Amendment Immunity and the

Abstention Doctrine Do Not Bar Plaintiffs’ Claims

[3] Defendants concede that suits for injunctive or declara-

tory relief do not violate the Eleventh Amendment under Ex

parte Young, 209 U.S. 123 (1908). Defendants contend,

instead, that Plaintiffs’ request for monetary damages against

them is barred by the Eleventh Amendment to the Constitu-

tion. Defendants are correct that Plaintiffs cannot seek mone-

tary damages against state officials in their official capacity.

See Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836,

839 (9th Cir. 1997). But the Eleventh Amendment does not

bar suits seeking damages against state officials in their per-

sonal capacity. See Hafer v. Melo, 502 U.S. 21, 30 (1991);

Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394-95 (9th Cir.

1997).

[4] The second amended complaint states that Defendants

acted in and are being sued in their individual and official

capacities. This creates a presumption that Plaintiffs are seek-

ing monetary damages against defendants in their personal

capacity. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir.

1999) (stating a strong presumption in favor of a personal

capacity suit where an official capacity suit for damages

HYDRICK v. HUNTER 11985

would be barred). Accordingly, the Eleventh Amendment

does not bar Plaintiffs’ claim for damages against Defendants

in their individual capacities.

[5] Defendants also argue that they are immune from Plain-

tiffs’ suit because Plaintiffs attempt to enforce pendent state

law claims in federal court. Plaintiffs refer, in their first, sec-

ond, and tenth claims for relief, to provisions in the California

Constitution that parallel the applicable provision in the

United States Constitution. Plaintiffs concede that they could

not prevail on a § 1983 claim based on a violation of state

law, because § 1983, by its own terms, protects only viola-

tions of federal law. See Ybarra v. Bastian, 647 F.2d 891, 892

(9th Cir. 1981). Instead, they cite California law only where

it is legitimate to do so, e.g., where there is a state-created lib-

erty or property interest at stake. See, e.g., Paul v. Davis, 424

U.S. 693, 710-12 (1976). Accordingly, Plaintiffs’ claims are

not barred on this ground, and we need not consider Defen-

dants’ arguments that Plaintiffs’ state law claims are “novel

and complex” under 28 U.S.C. § 1367(c).7

D. Plaintiffs’ Section 1983 Claims

[6] Defendants’ first substantive argument is that Plaintiffs

have not properly pled a claim under Section 1983, in that

they are not proper defendants for a suit. “To sustain an action

7

Defendants also suggest that the federal courts should “abstain” under

the “Abstention Doctrine.” They appear to confuse abstention with denial

of pendent jurisdiction under the “novel and complex” clause of 28 U.S.C.

§ 1367(c). If they meant abstention proper, they waived that argument

because they failed to raise abstention before the District Court. See Conn.

Gen. Life Ins. v. New Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir.

2003). Nor do we see any reason that the federal courts would abstain in

this situation. Pullman abstention is not appropriate because the driving

force behind each of Plaintiffs’ claims is a right guaranteed by the United

States Constitution, and state court clarification of state law would not

make a federal court ruling unnecessary. See R.R. Comm. of Tex. v. Pull-

man Co., 312 U.S. 496, 499-501 (1941).

11986 HYDRICK v. HUNTER

under section 1983, a plaintiff must show (1) that the conduct

complained of was committed by a person acting under color

of state law; and (2) that the conduct deprived the plaintiff of

a federal constitutional or statutory right.” Wood v. Ostrander,

879 F.2d 583, 587 (9th Cir. 1989).

There is no question that all Defendants were acting under

the color of California law when they engaged in the alleged

unconstitutional conduct. Defendants argue, instead, that their

conduct did not cause Plaintiffs any deprivation of their con-

stitutional or statutory rights.

“A person ‘subjects’ another to the deprivation of a consti-

tutional right, within the meaning of [§] 1983, if [that person]

does an affirmative act, participates in another’s affirmative

acts, or omits to perform an act which [that person] is legally

required to do that causes the deprivation of which complaint

is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

1978). Indeed, the “requisite causal connection can be estab-

lished not only by some kind of direct personal participation

in the deprivation, but also by setting in motion a series of

acts by others which the actor knows or reasonably should

know would cause others to inflict the constitutional injury.”

Id. at 743-744.

In limited circumstances, a person can also be subject to

§ 1983 liability for the acts of others. Although there is no

pure respondeat superior liability under § 1983, a supervisor

is liable for the constitutional violations of subordinates “if

the supervisor participated in or directed the violations, or

knew of the violations and failed to act to prevent them.” Tay-

lor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

[7] Plaintiffs proceed on both of these theories: (a) that

Defendants created policies and procedures that violated

Plaintiffs’ constitutional rights; and (b) that Defendants were

willfully blind to constitutional violations committed by their

subordinates. Because Defendants were directors and policy-

HYDRICK v. HUNTER 11987

makers for Atascadero State Hospital, we believe Plaintiffs

have sufficiently alleged that the constitutional violations they

suffered were “set in motion” by Defendants’ policy decisions

or, at the very least, that Defendants knew of these abuses and

demonstrated a deliberate indifference to the SVPs’ plight.

[8] Defendants are correct that, under Leer v. Murphy, 844

F.2d 628, 633-34 (9th Cir. 1988), Plaintiffs will need to show

how the deliberate indifference or affirmative actions of each

defendant caused a constitutional violation before they can

seek monetary damages against any individual defendant. At

this stage of pleading, however, they need not specifically

delineate how each Defendant contributed to the violation of

their constitutional rights. Indeed, we do not see how, prior to

discovery, they could plead the individual roles of each state

officer with any more specificity. Taking the statements in the

complaint in the light most favorable to the Plaintiffs, Plain-

tiffs may be able to state a claim against all of the named

Defendants, each of whom played an instrumental role in

policy-making and enforcement at Atascadero State Hospital.

Therefore, we hold that Plaintiffs have sufficiently alleged

Defendants’ role in the alleged constitutional violations

against SVPs to survive this motion to dismiss.

E. Defendants’ Qualified Immunity Defense

Defendants also argued that the district court erred when it

denied them qualified immunity. As Defendants have con-

ceded, qualified immunity is only an immunity from a suit for

damages, and does not provide immunity from suit for declar-

atory or injunctive relief. See Los Angeles Police Protective

League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993). Defen-

dants instead argue that they are entitled to qualified immu-

nity from all of Plaintiffs’ claims to the extent that Plaintiffs

seek monetary damages.

In analyzing Defendants’ qualified immunity defense, we

must determine, taking the facts in the light most favorable to

11988 HYDRICK v. HUNTER

Plaintiffs: (1) what right has been violated; (2) whether that

right was so “clearly established” at the time of the incident

that a reasonable official would have been aware that the con-

duct violated constitutional bounds; and (3) whether a reason-

able public official could have believed that the alleged

conduct was lawful. See Newell v. Sauser, 79 F.3d 115, 117

(9th Cir. 1996).

[9] In order to withstand Defendants’ claims of qualified

immunity, then, Plaintiffs must first allege a violation of a

right that was clearly established in 1998 — the time the

alleged constitutional violations first took place. See Anderson

v. Creighton, 483 U.S. 635, 639-40 (1987); Sorrels v. McKee,

290 F.3d 965, 970 (9th Cir. 2002). To defeat qualified immu-

nity, “the right allegedly violated must be defined at the

appropriate level of specificity before a court can determine

if it was clearly established.” Wilson v. Layne, 526 U.S. 603,

615 (1999).

But Plaintiffs need not establish that Defendants’ “behavior

had been previously declared unconstitutional.” Blueford v.

Prunty, 108 F.3d 251, 254 (9th Cir. 1997). In fact, “precedent

directly on point is not necessary to demonstrate a clearly

established right.” Id. at 255. Rather, “[i]f the only reasonable

conclusion from binding authority were that the disputed right

existed, even if no case had specifically so declared, [Defen-

dants] would be on notice of the right and [officials] would

not be qualifiedly immune if they acted to offend it.” Id. If the

occasion has not risen for our circuit to reach a question, we

may draw clearly established law from other circuits. Prison

Legal News v. Lehman, 397 F.3d 692, 701 (9th Cir. 2005); see

also Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir.

2000) (finding a violation of clearly established law where

there is “such a clear trend in the case law” that recognition

of the right is “only a matter of time”).

[10] Before we consider Plaintiffs’ claims individually to

determine whether they were clearly established, we address

HYDRICK v. HUNTER 11989

a threshold question that applies to Plaintiffs’ claims more

generally. Defendants argue, as a broad proposition, that dam-

ages are not appropriate in this suit because the law applicable

to SVPs is still evolving. We acknowledge that this suit is

unique, in that it is one of the first widespread class actions

to challenge the conditions of detention for civilly confined

SVPs. Nonetheless, we believe Defendants may have trans-

gressed some clearly established boundaries, or at least, that

their claims cannot be dismissed at this stage of litigation.

First, civilly detained persons must be afforded “more consid-

erate treatment and conditions of confinement than criminals

whose conditions of confinement are designed to punish.”

Youngberg v. Romeo, 457 U.S. 307, 322 (1982); see also

Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000). It fol-

lows logically, then, that the rights afforded prisoners set a

floor for those that must be afforded SVPs, and that where

Defendants violate a standard that is clearly established in the

prison context, the violation is clearly established under the

SVP scheme.8 Second, where there is a clearly established

body of law that applies to all civilly committed persons,

there is no reason that the law should not apply to SVPs as

well. For, as we have previously held:

The state cannot have it both ways. If confinement

of a sexually violent predator is civil for the pur-

poses of evaluation under the Ex Post Facto clause,

that confinement is civil for the purposes of defining

the rights to which the detainee is entitled while con-

fined. Civil status means civil status, with all the . . .

rights that accompany it.

8

Contrary to our dissenting colleague’s analysis, we see this as a very

minor analytical step. The State detains prisoners for the purpose of pun-

ishment. It detains SVPs for the purpose of treatment, and its treatment has

no punitive element to it. It seems entirely unremarkable, then, to say that

the State cannot treat SVPs worse than prisoners. The “only reasonable

conclusion from binding authority” is that the conditions of confinement

for SVPs cannot be more harsh than those under which prisoners are

detained. Blueford, 108 F.3d at 255.

11990 HYDRICK v. HUNTER

Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). Thus,

there are two bodies of law from which we might draw

“clearly established” law for qualified immunity purposes:

first, where the SVPs claim a violation of a right that is

clearly established even in the prison context, and second,

where the SVPs claim a violation of a right that is clearly

established for all civilly detained persons.

At the same time, we acknowledge at the outset that it is

not always clearly established how much more expansive the

rights of civilly detained persons are than those of criminally

detained persons. As discussed below, the rights afforded civ-

illy detained persons are flexible enough to take into account

the circumstances of detention. The law generally requires a

careful balancing of the rights of individuals who are detained

for treatment, not punishment, against the state’s interests in

institutional security and the safety of those housed at the

facility. See, e.g., Youngberg, 457 U.S. at 319-322. In weigh-

ing those interests, it cannot be ignored that, unlike the plain-

tiff in Youngberg who was civilly committed because of

mental infirmities, SVPs have been civilly committed subse-

quent to criminal convictions and have been adjudged to pose

a danger to the health and safety of others. Therefore, the

rights of SVPs may not necessarily be coexistensive with

those of all other civilly detained persons.9

9

We thus agree with our dissenting colleague that context is critical in

constitutional claims. Nonetheless, this admission — that it is not clear

how much more extensive the rights of SVPs are — does not inexorably

lead to the conclusion that there can be no violation of clearly established

law. It may not be clear exactly what due process rights are to be afforded

SVPs, but surely it is clear that certain actions — forcing Plaintiffs to live

in squalid conditions, turning a blind eye to physical attacks against SVPs,

and forcing SVPs to take medication as punishment or in retaliation for fil-

ing a lawsuit or for refusing to speak during treatment sessions — trans-

gressed the boundary. Surely it would not require “law train[ing]” or

clairvoyance to recognize that these actions, as alleged by Plaintiffs, do

not comport with due process.

HYDRICK v. HUNTER 11991

With these threshold issues in mind, we review each of

Plaintiffs’ claims to determine whether Plaintiffs have suffi-

ciently pleaded a violation of clearly established rights.

1. Plaintiffs’ First and Fourteenth Amendment

Rights

Plaintiffs contend that Defendants have retaliated against

them for filing lawsuits regarding conditions at Atascadero

State Hospital. Specifically, Plaintiffs claim that, as a result of

preparing this suit and other complaints about the conditions

at Atascadero, Plaintiffs have been subjected to access-level

reductions, harassment by Atascadero personnel, excessive

room search and seizures of property, and that they have been

denied access to the library.

[11] It is clear that the Fourteenth Amendment right to

access the courts survives detention. Bounds v. Smith, 430

U.S. 817, 821-22 (1977) (“It is now established beyond doubt

that prisoners have a constitutional right of access to the

courts.”); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir.

1995) (holding that “right of access [to the courts] is guaran-

teed to people institutionalized in a state mental hospital

regardless of whether they are civilly committed after crimi-

nal proceedings or civilly committed on grounds of danger-

ousness”). Similarly, punishment in retaliation for exercising

one’s right to access the courts may constitute a First Amend-

ment violation. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th

Cir. 1985). We have held that the prohibition against retalia-

tory punishment is “ ‘clearly established law’ in the Ninth

Circuit, for qualified immunity purposes.” Pratt v. Rowland,

65 F.3d 802, 806 & n.4 (9th Cir. 1995). Given the facts alleged,10

10

We note that Plaintiffs’ original pro se complaint contains particularly

persuasive narratives on this issue. Specifically, it details how Atascadero

personnel responded when they caught wind of this suit, altering schedules

so that the coordinators of this action would not be able to work together,

telling Plaintiffs that their meeting in the library was an “illegal assem-

bly,” limiting law library time, scheduling mandatory group sessions dur-

ing the SVPs’ library time, and refusing to give SVPs drafting paper

because it was “only for the mental patients to draft appeals.”

11992 HYDRICK v. HUNTER

we believe Plaintiffs may be able to prove that they have been

punished in retaliation for the exercise of their First and Four-

teenth Amendment rights to file grievances about the condi-

tions of their confinement. Accordingly, their claims should

not be dismissed at the Rule 12(b)(6) stage.

Plaintiffs also allege that Defendants force them to partici-

pate in treatment that violates their First Amendment rights.

Specifically, Plaintiffs allege that Defendants bar SVPs from

progressing beyond Phase One until they sign a contract

admitting that they have an illness and need treatment. The

decision to sign the contract is the ultimate “Catch-22”: dur-

ing re-commitment hearings, the contract is used against those

who sign it as an admission of illness, and used against those

who do not sign it as a refusal to be amenable to treatment.

Plaintiffs also allege that SVPs who attend but do not vocally

participate in group treatment sessions are found by Defen-

dants to be “not progressing”; accordingly, these SVPs do not

advance to higher levels and are subjected to access level

restrictions. Plaintiffs argue that they have a First Amendment

right to refrain from saying that they have an illness and to

refuse to participate in treatment, and that Defendants may not

punish them for exercising their rights.

We note that there may be a First Amendment right not to

participate in treatment, a right respected by the language of

California’s SVP Act, if not in its implementation. Specifi-

cally, the SVP Act directs:

Amenability to treatment is not required for a finding

that any person is a person described in Section

6600, nor is it required for treatment of that person.

Treatment does not mean that the treatment be suc-

cessful or potentially successful, nor does it mean

that the person must recognize his or her problem

and willingly participate in the treatment program.

Cal. Welf. & Inst. Code § 6606(b) (emphasis added). While

it may be in Plaintiffs’ interest to participate in treatment, and

HYDRICK v. HUNTER 11993

the State may create incentives to encourage such participa-

tion, it is clear that “[t]he right of freedom of thought and of

religion as guaranteed by the Constitution against State action

includes both the right to speak freely and the right to refrain

from speaking at all.” W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624, 645 (1943) (Murphy, J., concurring). As is the

case with prisoners, civilly committed persons certainly retain

those First Amendment rights not inherently inconsistent with

the circumstances of their detention. See Turner v. Safley, 482

U.S. 78, 89 (1987). The language of the above statute strongly

suggests that refusal to recognize one’s “illness” or affirma-

tively participate in treatment is not inherently inconsistent

with the purposes for which SVPs are detained.

Granted, Plaintiffs are not actually forced to speak. But in

this case, the stakes for refusing to speak are so high that

Plaintiffs’ participation in treatment is almost compulsory.

Indeed, an SVP who exercised his right not to admit his ill-

ness could be detained indefinitely: he would never advance

past Phase One and his refusal could be used against him at

his re-commitment hearing as a sign that he was not suffi-

ciently “rehabilitated” to re-enter society.

Several inmates who are criminally detained raised analo-

gous arguments, on Fifth Amendment grounds, that programs

that force sexual offenders to admit and discuss those offenses

violate their rights against self-incrimination. In McKune v.

Lile, 536 U.S. 24 (2002), the Supreme Court found that a pro-

gram did not violate the Fifth Amendment where the program

“did not extend his term of incarceration . . . [or] affect his eli-

gibility for good-time credits or parole,” and the only adverse

consequence was that he was moved to the less desirable non-

treatment area of the prison. Id. at 38-39.

But McKune explicitly left open the question of whether a

greater deprivation of liberty might run afoul of the Constitu-

tion by essentially compelling detainees to incriminate them-

selves. At least one court, reading McKune, allowed an inmate

11994 HYDRICK v. HUNTER

to proceed past pre-trial motions on First Amendment grounds

where the right to parole was conditioned on participation in

treatment. See Wolfe v. Penn. Dep’t of Corrections, 334 F.

Supp. 2d 762, (E.D. Pa. 2004). Similarly, in this case, where

the stakes for participation in treatment are so high, the depri-

vations involved in refusing to participate in treatment may

rise to the level of compulsion that might violate the First

Amendment.

[12] The question at this stage, however, is not whether the

right exists, but whether such a right is clearly established

under the First Amendment. Given the volatility of the law on

this point, we cannot say that it is. The challenged programs

are facially related to the purposes for which the SVPs are

detained, and while SVPs may have a right to refuse to partic-

ipate in such treatment, it is not yet clear the extent to which

the State can condition privileges or advancement on partici-

pation in such treatment. As such, we believe these claims

may be more appropriately considered for declaratory or

injunctive relief.

[13] Thus, we hold that Plaintiffs’ First Amendment claims

were based on clearly established law insofar as they chal-

lenge action in retaliation for filing lawsuits. To the extent

that the claim relies on a First Amendment right not to partici-

pate in treatment sessions, Defendants have qualified immu-

nity, because the law on this point is not clearly established.

2. Plaintiffs’ Fourth Amendment Rights

Plaintiffs allege that Defendants’ policies and practices

subject Plaintiffs to unreasonable searches, seizures, and

unnecessary use of force. According to Plaintiffs, they are

subjected to public strip searches; to retaliatory searches of

their possessions; and to arbitrary seizure of their personal

belongings upon arrival at Atascadero. SVPs are also placed

in shackles during transport to Atascadero and during visits

from family and friends. When they refuse to participate in

HYDRICK v. HUNTER 11995

treatment, they are subjected to “red light alarms” even if they

do not post any physical risk.11 Moreover, they are force-

medicated as a means of intimidation and punishment, and for

the convenience of staff.

Accepting these allegations as true, we believe Plaintiffs

may be able to state a “clearly established” violation of their

Fourth Amendment rights, and thus, the claims are not appro-

priate for dismissal at the Rule 12(b)(6) stage. The watchword

of the Fourth Amendment in every context is reasonableness.

As this court held in Thompson v. Souza, 111 F.3d 694 (9th

Cir. 1997), “the Fourth Amendment right to be secure against

unreasonable searches and seizures ‘extends to incarcerated

prisoners.’ ” Id. at 699. Thus, this protection certainly extends

to SVPs.

[14] Of course, “the reasonableness of a particular search

[or seizure] is determined by reference to the [detention] con-

text.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.

1988). As with any detained person, there are concerns that

mirror those that arise in the prison context: i.e., “the safety

and security of guards and others in the facility, order within

the facility and the efficiency of the facility’s operations.”

Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). But

even so, qualified immunity does not protect a search or sei-

zure that is arbitrary, retaliatory, or clearly exceeds the legiti-

mate purpose of detention.

[15] Under this framework, we cannot dismiss Plaintiffs’

claim at this stage. The “reasonableness” of a search or sei-

zure is a fact-intensive inquiry that cannot be determined at

this stage. See, e.g., Thompson, 111 F.3d 694 (9th Cir. 1997)

(evaluating the reasonableness of a strip search based on the

manner and scope of the search, the place, and the justifica-

tion). It is impossible to make such a fact-specific determina-

11

As explained in the complaint, a “red light alarm” is when ten to

twenty staff members surround and restrain the patient.

11996 HYDRICK v. HUNTER

tion when the precise circumstances of the searches or

seizures are not before the court and when the Defendants

have not yet had a chance to explain their justification for the

alleged searches or seizures. We cannot say, then, that Plain-

tiffs cannot possibly state a “clearly established violation”

based on any facts consistent with their pleadings.12 There-

fore, Defendants do not have a right to qualified immunity

under Federal Rule of Civil Procedure 12(b)(6).

3. Double Jeopardy and Ex Post Facto Clauses

Plaintiffs allege violations of the double jeopardy clause

and ex post facto clause. While Plaintiffs concede that these

two clauses have punishment as an essential prerequisite, and

that the SVP Act is a civil detention statute, they claim that

the SVP Act is punitive as applied to them. As such, they

argue that their double jeopardy and ex post facto claims are

not barred.

[16] In upholding a law similar to California’s SVP Act,

the Supreme Court held that “[a]n Act, found to be civil, can-

not be deemed punitive ‘as applied’ to a single individual in

violation of the Double Jeopardy and Ex Post Facto Clauses

and provide cause for release.” Seling v. Young, 531 U.S. 250,

267 (2001). Similarly, the California Supreme Court stressed

the civil nature of a sexually violent predator commitment and

rejected challenges to California’s SVP Act based on the Ex

Post Facto and Double Jeopardy clauses of the federal consti-

tution. See Hubbart v. Superior Court, 19 Cal. 4th 1138, 1171

(Cal. 1999). We believe Plaintiffs’ claims based on the Dou-

12

The excessive force claims under the Fourth and Fourteenth Amend-

ment — e.g., forced medication, excessive use of red light alarms, and use

of shackles — largely duplicate Plaintiffs’ excessive force claims under

the Eighth and Fourteenth Amendments, and their claims for Substantive

Due Process. We will consider all these claims together, below.

HYDRICK v. HUNTER 11997

ble Jeopardy and Ex Post Facto Clauses of the federal consti-

tution are foreclosed.13

[17] Plaintiffs argue that Seling does not control because

they are not “seeking release” as was the habeas petitioner in

Seling. They raise a purely artificial difference. The court in

Seling made it abundantly clear that the civil nature of the

SVP scheme “cannot be altered based merely on the vagaries

in implementation of the authorizing statute.” Id. at 263.

Accordingly, we find that the civil nature of California’s SVP

Act is not altered because of the remedy sought and we

reverse the district court’s order denying Defendants’ motion

to dismiss as to the Ex Post Facto and Double Jeopardy

Clause related claims.

4. Plaintiffs’ Eighth and Fourteenth Amendment

Claims

[18] Plaintiffs allege in their complaint that the “restrictive

and denigrating conditions” at the Atascadero State Hospital

constitute cruel and unusual punishment in violation of the

Eighth Amendment. The Eighth Amendment has, as an essen-

tial prerequisite, the right to punish. DeShaney v. Winnebago

County Dept. of Soc. Servs., 489 U.S. 189, 199 n.6 (“The

State does not acquire the power to punish with which the

Eighth Amendment is concerned until after it has secured a

formal adjudication of guilt in accordance with due process of

law.”). Here, SVPs are detained for the purpose of treatment,

and the state’s power to punish them expires at the end of

their sentence. Accordingly, the Eighth Amendment is not the

13

Seling did not, however, alter our authority to consider implementa-

tion of the SVP Act on Plaintiffs’ other claims. See Seling, 531 U.S. at 266

(“This case gives us no occasion to consider how the civil nature of a con-

finement scheme relates to other constitutional challenges, such as due

process, or to consider the extent to which a court may look to actual con-

ditions of confinement and implementation of the statute to determine in

the first instance whether a confinement scheme is civil in nature.”).

11998 HYDRICK v. HUNTER

proper vehicle to challenge the conditions of civil commit-

ment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).

[19] The thrust of Plaintiffs’ claim here is that because the

conditions of confinement amount to punishment, they should

be permitted to argue that this “punishment” is cruel and

unusual. Once again, this “punitive as applied” argument is

foreclosed by Seling. Therefore, we find that the district court

erred when it failed to dismiss the Eighth Amendment claim

against Defendants.

Of course, this is a small victory for Defendants, because

the same claims for inhumane treatment and failure to protect

may be raised under the Fourteenth Amendment. The stan-

dard applicable to SVPs under the Fourteenth Amendment are

at least coextensive with that applicable to prisoners under the

Eighth Amendment. See, e.g., Munoz v. Kolender, 208 F.

Supp. 2d 1125 (S.D. Cal. 2002) (applying Fourteenth Amend-

ment standards to SVPs because “comparable standards apply

to both prisoners’ Eighth Amendment cruel and unusual pun-

ishment and Fourteenth Amendment substantive due process

analyses, with Fourteenth Amendment analysis borrowing

from Eighth Amendment standards.”); Frost v. Agnos, 152

F.3d 1124, 1128 (9th Cir. 1998) (applying Eighth Amendment

standards to evaluate pretrial detainees’ Fourteenth Amend-

ment claims). Moreover, the Eighth Amendment provides too

little protection for those whom the state cannot punish. See

Jones v. Blanas, 393 F.3d 918, 931-34 (9th Cir. 2004);

Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001). Plaintiffs

apparently recognize this, because their Eighth Amendment

claims largely duplicate those raised under the substantive due

process clause of the Fourteenth Amendment. Accordingly,

we consider, below, under the Fourteenth Amendment Plain-

tiffs’ allegations that Defendants’ actions violate their due

process rights.

HYDRICK v. HUNTER 11999

5. Plaintiffs’ Procedural Due Process Rights Under

the Fourteenth Amendment

Plaintiffs raise a number of procedural due process viola-

tions against Defendants. Plaintiffs allege that Defendants

force them to participate in the five-phase treatment program

at Atascadero; force them to take medication in non-

emergency situations; and subject them to privilege reduc-

tions, access level reductions, and reclassifications. Plaintiffs

allege that these deprivations occur without adequate notice of

or opportunity to respond to accusations of alleged sanction-

able conduct.

[20] The Fourteenth Amendment requires that no person be

deprived of life, liberty, or property without due process of

law. That is, even if Defendants may deprive SVPs of certain

privileges, those deprivations may not be carried out without

notice and an opportunity to be heard. Defendants do not

challenge, at least at this stage, that Plaintiffs were deprived

of certain privileges, or that these deprivations did not carry

with them the attendant due process required under the Four-

teenth Amendment. Rather, Defendants argue that Plaintiffs

have not adequately pleaded the loss of an established liberty

or property interest when they are force-medicated, when

their access-levels are reduced, or when they lose other privi-

leges.

[21] We disagree. Convicted prisoners, pretrial detainees,

and parolees all possess a liberty interest in avoiding the

unwanted administrations of antipsychotic drugs. See, e.g.,

Washington v. Harper, 494 U.S. at 221-22 (holding that pris-

oners possess “a significant liberty interest in avoiding the

unwanted administration of antipsychotic drugs under the Due

Process Clause of the Fourteenth Amendment” and identify-

ing procedures which comported with due process). Thus, at

a minimum, an individual civilly committed under Califor-

nia’s SVP Act has a right to procedural due process before

being force-medicated in non-emergency situations.

12000 HYDRICK v. HUNTER

Next, Plaintiffs allege that reduction of their access levels

decreases, or in some cases eliminates, the opportunity to

move around the facility without escorts and that it affects

their right to other privileges. The reduction of an SVP’s

access level is similar to the transfer of prisoners from the

general prison population to administrative segregation. Such

a transfer may deprive the prisoner of a state-created liberty

interest. See Sandin v. Connor, 515 U.S. 472, 484 (1995)

(holding that a state-created liberty interest in one’s classifica-

tion may exist where classification imposes “atypical and sig-

nificant hardship”); see also Barnett v. Centoni, 31 F.3d 813,

815-16 (9th Cir. 1994) (holding that a prison inmate was

deprived of liberty and property because he was reclassified

thereby losing certain privileges). Thus, Plaintiffs may have

a liberty interest in their access levels and classifications that

affect their privileges.

[22] In sum, it is clearly established that an inmate has a

state-created liberty interest and a right to be free from restric-

tions that “impose[ ] atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.”

Sandin, 515 U.S. at 483-84. Where Defendants have trans-

gressed a line clearly established even in the prison context,

we have no trouble deeming the line clearly established for

SVPs. Therefore, we hold that Plaintiffs’ Fourteenth Amend-

ment Procedural Due Process claims are based on clearly

established rights.

6. Plaintiffs’ Fourteenth Amendment Substantive

Due Process Claims

Plaintiffs contend that Defendants have violated their sub-

stantive due process rights because Defendants have failed to

protect them from the abuse of other detainees and employ-

ees. Their claims can be broken down into three general cate-

gories: (a) claims that Defendants failed to protect Plaintiffs

from the abuses of other persons detained at Atascadero; (b)

claims that Defendants failed to provide constitutionally ade-

HYDRICK v. HUNTER 12001

quate conditions of detention; and (c) claims that Defendants

use excessive force against them.14

First, Plaintiffs claim that Defendants have turned a blind

eye to the conduct of other persons detained at Atascadero

State Hospital. Specifically, Plaintiffs allege that they are

intentionally exposed to feces, urine, vomit, spit, and blood in

Atascadero’s courtyards, bathrooms, hallways, dining rooms,

and gymnasium, and that other detainees contaminate their

food with spit and other unsanitary taint. Plaintiffs allege that

they are subjected to verbal harassment, physical abuse, and

sexual assaults by other patients at the Hospital, and indeed

that they are targeted because they are sex offenders.

The patient population at Atascadero State Hospital com-

prises males who are civilly or penally committed. The indi-

viduals committed at the Hospital are confined under a variety

of statutes. See Cal. Penal Code § 1026 (covering patients

“not guilty by reason of insanity”); Cal. Penal Code § 1370

(covering patients “incompetent to stand trial”); Cal. Penal

Code §§ 2962, 2964 (covering “mentally disordered offend-

ers” serving their parole time); Cal. Welfare and Institutions

Code § 6316 (covering “mentally disordered sex offenders”);

Cal. Penal Code § 2684 (covering mentally ill prisoners trans-

ferred to Atascadero State Hospital for psychiatric stabiliza-

tion). According to Plaintiffs, their forced integration as

openly labeled “sexually violent predators” has subjected

them to verbal harassment, physical abuse, and sexual assaults

from the rest of the Atascadero population.

[23] Plaintiffs’ right to be protected and confined in a safe

institution are clearly established. See Youngberg, 457 U.S. at

319-22 (stating that individuals who are involuntarily civilly

committed have constitutionally protected rights under the

14

Here we consider Plaintiffs’ substantive due process allegations from

their Second Alleged Claim, their Fifth Alleged Claim and their Seventh

Alleged Claim.

12002 HYDRICK v. HUNTER

Due Process Clause to reasonably safe conditions of confine-

ment and freedom from unreasonable bodily restraints). The

right is clearly established for civilly committed persons and

prisoners alike. See Farmer v. Brennan, 511 U.S. 825, 833

(1994) (“[P]rison officials have a duty . . . to protect prisoners

from violence at the hands of other prisoners.” (internal cita-

tions omitted)); Neely v. Feinstein, 50 F.3d 1502, 1508 (9th

Cir. 1995) (finding “clearly established” that patients have a

“constitutional right to be safe in the state institutions to

which they are committed”). Assuming Plaintiffs can prove

the allegations in their complaint and Defendants’ blindness

to such conditions in Atascadero, qualified immunity would

not be appropriate on these claims.

[24] Second, Plaintiffs allege that the conditions of confine-

ment are constitutionally inadequate, that they are forced to

live in squalid conditions that are inhumane and pose a seri-

ous health risk. Plaintiffs have a clearly established right not

to be exposed to such unsanitary conditions. See Anderson v.

County of Kern, 45 F.3d 1310, 1314-15 (9th Cir. 1995) (col-

lecting cases in prison context); Youngberg, 457 U.S. at 315-

16 (establishing a right to “personal security” for involuntarily

committed persons).15 Given the allegations in the Second

Amended Complaint, Plaintiffs’ claims as to the unsanitary

and unsafe conditions of confinement cannot be dismissed

under Federal Rule of Civil Procedure 12(b)(6).

[25] Plaintiffs also allege several claims of excessive force,

i.e., that (a) “red light alarms” are used when Plaintiffs orally

refuse to participate in treatment, even if they pose no threat

of physical violence; (b) that shackles are used during trans-

portation and during visits with family and friends; and, more

15

In the prison context, claims of unsanitary conditions are evaluated

under the Eighth Amendment. See Anderson, 45 F.3d at 1314. Although

the Eighth Amendment does not apply here, similar standards may apply

to SVPs under the Fourteenth Amendment. See Munoz v. Kolender, 208

F. Supp. 2d 1125, 1146 (S.D. Cal. 2002).

HYDRICK v. HUNTER 12003

generally, (c) that Plaintiffs are subjected to “excessive pun-

ishment . . . [and] excessive use of force and physical

restraints.” It is well-established that detained persons have a

right to be free from excessive force. While excessive force

claims by prisoners are reviewed under the Eighth Amend-

ment’s malicious and sadistic standard, Hudson v. McMillian,

503 U.S. 1 (1992), the more generous Fourteenth Amendment

standard applies to those who are civilly confined. As we pre-

viously stated:

If confinement of a sexually violent predator is civil

for the purposes of evaluation under the Ex Post

Facto clause, that confinement is civil for the pur-

poses of defining the rights to which the detainee is

entitled while confined [in a treatment facility]. Civil

status means civil status, with all the Fourteenth

Amendment rights that accompany it.

Jones, 393 F.3d at 933.

The Fourteenth Amendment requires that civilly committed

persons not be subjected to conditions that amount to punish-

ment, Bell, 441 U.S. at 536, within the bounds of professional

discretion, Youngberg, 457 U.S. at 321-22. Moreover, the

“due process requires that the conditions and duration of con-

finement [for civilly confined SVPs] bear some reasonable

relation to the purpose for which persons are committed.” Sel-

ing, 531 U.S. at 265; see also Jones, 393 F.3d at 931. While

the nature of an SVP’s confinement may factor in this balance

of what is reasonable, it is clearly established that the substan-

tive due process protections of the Fourteenth Amendment

apply to SVPs. See Andrews v. Neer, 253 F.3d 1052, 1061

(8th Cir. 2001) (applying the Fourteenth Amendment’s “ob-

jective reasonableness” standard to excessive force claims

brought by civilly committed SVPs).16

16

While Jones, Neer, and Seling are more recent cases, they do little

more than restate the contours of law clearly established in Youngberg v.

12004 HYDRICK v. HUNTER

[26] We also reiterate that SVPs must, at a minimum, be

afforded the rights afforded prisoners confined in a penal

institution. Thus, the Eighth Amendment still provides a floor

for the level of protection that SVPs must receive under the

Fourteenth Amendment, and because the contours of the

Eighth Amendment are more defined, Eighth Amendment

jurisprudence may provide helpful guidance as to the stan-

dards to be applied. Under the Eighth Amendment, the unnec-

essary and wanton force standard takes into account such

facts as the need for the application of force, the relationship

between the need and the amount of force used, the threat per-

ceived by the officer, any effort to temper the severity of the

forceful response, and the extent of the injury inflicted, and

whether the force was applied for a legitimate purpose. Hud-

son v. McMillian, 503 U.S. 1, 7 (1992). If Plaintiffs allege

conduct that sinks below those protections afforded prisoners

under the Eighth Amendment, then their claim certainly states

a violation of their rights under the Fourteenth Amendment.

[27] Plaintiffs have alleged that force is used in retaliation

for exercising legitimate rights and that the amount of force

used is often a gross overreaction to the situation. Such use of

force, if proved, is not reasonable and failure to curtail such

abuses cannot be said to be within Defendants’ professional

discretion. We affirm, then, the district court’s denial of the

motion to dismiss on these grounds.

On each of these three grounds — failure to protect, inade-

quate conditions of confinement, and excessive force — we

believe that Plaintiffs may be able to state a “clearly estab-

lished” Fourteenth Amendment Substantive Due Process vio-

Romeo, a 1982 case, and Bell v. Wolfish, a 1979 case. Seling essentially

restates the Youngberg test, and Jones does little more than connect the

line between Youngberg and SVPs based on California’s argument that the

statute should be construed as a civil confinement statute. We believe a

reasonable official reading Youngberg would have sufficient notice that

they would be held to Youngberg’s standards of due process.

HYDRICK v. HUNTER 12005

lation, and we cannot, at the Federal Rule 12(b)(6) stage,

dismiss these substantive due process claims.

7. Plaintiffs’ Equal Protection Rights Under the

Fourteenth Amendment

According to Plaintiffs, they are being treated more restric-

tively than other civilly committed patients. They allege that

their conditions are more punitive than those under which all

other civilly committed persons are held. For one example,

they allege that other civilly-committed persons are given pri-

ority in hiring for remunerative positions.

[28] Even though Plaintiffs do not constitute a suspect

class, heightened scrutiny may be required where fundamental

interests are at issue. See Harper v. Va. State Bd. of Elections,

383 U.S. 663, 670 (1966); Police Dept of City of Chicago v.

Mosley, 408 U.S. 92 (1972). This court upheld application of

a “heightened scrutiny standard” when evaluating an equal

protection violation under Washington State’s Sexually Vio-

lent Predator Statute. See Young v. Weston, 176 F.3d 1196,

1201 (9th Cir. 1999), rev’d on other grounds, Seling, 531 U.S.

250. While Young was decided in 1999, it rested on a firmly

established principle in existence at the time of events in

question: that heightened scrutiny will be applied where a

fundamental liberty interest is at stake. See Skinner v. Okla-

homa, 316 U.S. 535, 541 (1942). Plaintiffs may be able to

claim violations of several clearly established fundamental

rights: a liberty interest in freedom from bodily restraint and

personal security, Youngberg, 457 U.S. at 315-316, and a fun-

damental right to access the courts, as described below.

Accordingly, we agree with Plaintiffs that heightened scrutiny

is the standard for equal protection claims implicating these

fundamental rights. And we further observe that Plaintiffs, in

line with their allegations, may be able to show that the differ-

ential treatment between them and other civilly committed

persons violates equal protection because such treatment does

not meet heightened scrutiny.

12006 HYDRICK v. HUNTER

[29] At the same time, we cannot say that it is firmly estab-

lished that every condition of an SVP’s confinement is subject

to heightened scrutiny. In the prison setting, we have made

clear that prison officials need latitude in deciding how to run

their prison, and we have refused to subject each classification

drawn by prison officials to heightened scrutiny. Rather, a

prisoner cannot challenge the conditions of his confinement

on equal protection grounds unless the discrimination against

him is irrational or arbitrary. See McGinnis v. Royster, 410

U.S. 263, 276 (1973). That is, in so far as Plaintiffs’ claims

rely on classifications not related to fundamental liberty inter-

ests, Defendants will have qualified immunity unless there is

no rational basis for the classification.

[30] Even under the rational basis standard, we cannot dis-

miss Plaintiffs’ equal protection claims at this stage. Plain-

tiffs’ pleadings raise several questionable classifications. For

example, it seems arbitrary that SVPs should be treated more

harshly that other civilly committed persons in job placement

and privileges. Based on the pleadings, we believe that Plain-

tiffs may be able to prove a violation of clearly established

law congruent with the facts alleged. Admittedly, at this stage,

Defendants have not fully developed and presented the ratio-

nale for their actions and there may be differences between

SVPs and other civilly committed persons that warrant differ-

ential treatment. But we leave it to the district court, on a

more full factual record, to consider whether the classifica-

tions Plaintiffs present are irrational and arbitrary.

8. Plaintiffs’ Sixth Amendment Right to Counsel

and Fourteenth Amendment Right of Access to

Courts

Plaintiffs claim that they cannot privately correspond with

counsel, have telephone conversations with counsel, and are

otherwise hindered in their ability to prepare for their proba-

ble cause and commitment hearings. According to Plaintiffs,

HYDRICK v. HUNTER 12007

“[t]his inability to prepare for upcoming hearings would

clearly hinder Plaintiffs’ access to the courts and counsel.”

[31] Plaintiffs have a statutory right to counsel in probable

cause proceedings and in commitment hearings. Cal. Welfare

& Institutions Code §§ 6602, 6603, 6605(d). To protect the

right to counsel, “a [detainee] must be given a reasonable

opportunity to employ and consult with counsel; otherwise,

the right to be heard by counsel would be of little worth.”

Chandler v. Fretag, 348 U.S. 3, 10 (1954). While the Sixth

Amendment, by its express language, protects those in crimi-

nal proceedings, the Fourteenth Amendment protects all

detainees against governmental interference in their right of

access to courts. See Procunier v. Martinez, 416 U.S. 396,

419-20 (1974) (overruled on other grounds); Cornett v. Dono-

van, 51 F.3d 894, 897 & n.4 (9th Cir. 1995). The right of

access to courts has been found to encompass the right to talk

in person and on the telephone with counsel in confidential

settings, Procunier, 416 U.S. at 419; Ching v. Lewis, 895 F.2d

608, 609 (9th Cir. 1990), and to use available law library

resources, Kennan v. Hall, 3 F.3d 1083 (1996), subject to

legitimate restrictions related to the purpose and circum-

stances of detention. See Turner v. Safley, 482 U.S. 78, 89

(1987). Where such rights have been upheld in the prison con-

text, there is no question that SVPs must be afforded rights

that are at least as broad.

[32] Such a fact specific inquiry can hardly be undertaken

at this point, when it is not clear what Defendants have done

to impede access to the courts, or why they have done so, or

how the Defendants’ actions have affected Plaintiffs’ right of

access. We believe, nonetheless, that Plaintiffs may be able to

state a violation of clearly established law congruent with

their allegations and we affirm the district court’s order deny-

ing Defendants’ Rule 12(b)(6) motion to dismiss as to Plain-

tiffs’ Tenth claim based on access to courts.

12008 HYDRICK v. HUNTER

9. Plaintiffs’ Right to Privacy under the Fourteenth

Amendment

[33] Plaintiffs allege that Defendants’ policies do not allow

for privacy when showering, sleeping, using the toilets or par-

ticipating in therapy sessions. It is clearly established that the

Fourteenth Amendment protects a sphere of privacy, and the

most “basic subject of privacy . . . the naked body.” Grummett

v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985). While the cir-

cumstances of institutional life demand that privacy be lim-

ited, it is clearly established that gratuitous invasions of

privacy violate the Fourteenth Amendment. Id. Once again,

we reach a highly factual inquiry where the facts are not fully

developed: in Grummett, for example, we considered the gen-

der of those prison officials who viewed inmates, the angle

and duration of viewing, and the steps the prison had taken to

minimize invasions of privacy. Id. at 494-95. Such facts are

simply not available to us at this stage of proceedings.17 We

believe, nonetheless, that Plaintiffs may possibly be able to

state a violation of clearly established law congruent with

their allegations, and as such we will not dismiss their claim

under Federal Rule of Civil Procedure 12(b)(6).

***

In sum, we affirm the district court’s decision to deny qual-

ified immunity on Plaintiffs’ first, second, sixth, seventh,

eighth, ninth, and tenth causes of action to the extent noted

above. We reverse and hold that Defendants have qualified

immunity from suit on Plaintiffs’ Ex Post Facto, Double Jeop-

ardy, and Eighth Amendment claims.

17

Moreover, we note that it is not, as Defendants hinted in their briefs

to this court, the burden of the SVPs to show that there is no compelling

justification for the regulations, but rather the burden of the State to show

that there is such a justification. See Walker v. Sumner, 917 F.2d 382, 385-

87 (9th Cir. 1990).

HYDRICK v. HUNTER 12009

F. Defendants’ Belief That Their Conduct Was Lawful

Was Not Objectively Reasonable

[34] Even if Plaintiffs have alleged violations of a clearly

established right, a government official is entitled to qualified

immunity if he or she “could . . . have reasonably but mis-

takenly believed that his or her conduct did not violate a

clearly established constitutional right.” Jackson v. City of

Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see also Alford

v. Haner, 333 F.3d 972, 977 (9th Cir. 2003). This is a limited

exception, however: if the law is clearly established, the

immunity defense “ordinarily should fail, since a reasonably

competent public official should know the law governing [the

official’s] conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-

19 (1982).

[35] Whether Defendants’ conduct was reasonable involves

a factual analysis of the circumstances surrounding Defen-

dants’ actions and a determination of whether a reasonable

official similarly situated would have been aware that his/her

actions violated the law, an inquiry difficult to conduct at this

stage. Based on the facts in front of us, however, we do not

believe Defendants can claim that their conduct was objec-

tively reasonable. Again, Defendants argue that the volatile

nature of the law surrounding SVPs entitles them to escape

liability entirely. We do not adhere to the theory that “every

dog is entitled to one bite.” Defendants could not have been

so completely in the dark about the standards that would

apply to their conduct as it related to SVPs. As explained

above, SVPs are not entirely dissimilar from other groups of

civilly committed persons. Moreover, Plaintiffs’ complaint

alleges practices that would be unconstitutional if directed at

any prisoner. Accordingly, Defendants cannot escape liability

based on a “reasonable but mistaken” belief about the consti-

tutionality of their conduct.

CONCLUSION

For the foregoing reasons, we AFFIRM in part and

REVERSE in part the district court’s order denying Defen-

12010 HYDRICK v. HUNTER

dants’ second motion to dismiss under Rule 12(b)(6). Each

side to bear its own costs.

TROTT, Circuit Judge, concurring in part and dissenting in

part:

I

My disagreement with my colleagues is limited to one criti-

cal issue. We agree that plaintiffs cannot seek damages in this

lawsuit against state officials in their official capacities, and

that plaintiffs cannot 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 indi-

viduals are clearly entitled to qualified immunity against both

suit and damages — now, not later. In my view, the particu-

lars 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 pur-

suant to statutory authority with lawfully confined sexually

violent predators subject to remedial treatment would have

been aware that the conduct alleged violated federal constitu-

tional bounds. Given the unsettled nature of the law in this

area, a reasonable official could certainly have believed other-

wise.

We decide this appeal with clear analytical guidance from

the Supreme Court:

Somewhat more concretely, whether an official pro-

tected by qualified immunity may be held personally

HYDRICK v. HUNTER 12011

liable for an allegedly unlawful official action gener-

ally turns on the “objective legal reasonableness” of

the action, assessed in light of the legal rules that

were “clearly established” at the time it was taken.

The operation of this standard, however, depends

substantially upon the level of generality at which

the relevant “legal rule” is to be identified. For

example, the right to due process of law is quite

clearly established by the Due Process Clause, and

thus there is a sense in which any action that violates

that Clause (no matter how unclear it may be that the

particular action is a violation) violates a clearly

established right. Much the same could be said of

any other constitutional or statutory violation. But if

the test of “clearly established law” were to be

applied at this level of generality, it would bear no

relationship to the “objective legal reasonableness”

that is the touchstone of Harlow. Plaintiffs would be

able to convert the rule of qualified immunity that

our cases plainly establish into a rule of virtually

unqualified liability simply by alleging violation of

extremely abstract rights. Harlow would be trans-

formed from a guarantee of immunity into a rule of

pleading. Such an approach, in sum, would destroy

“the balance that our cases strike between the inter-

ests in vindication of citizens’ constitutional rights

and in public officials’ effective performance of their

duties,” by making it impossible for officials “rea-

sonably [to] anticipate when their conduct may give

rise to liability for damages.” It should not be sur-

prising, therefore, that our cases establish that the

right the official is alleged to have violated must

have been “clearly established” in a more particu-

larized, and hence more relevant, sense: The con-

tours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right. This is not to say that an

12012 HYDRICK v. HUNTER

official action is protected by qualified immunity

unless the very action in question has previously

been held unlawful, but it is to say that in the light

of pre-existing law the unlawfulness must be appar-

ent.

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (empha-

sis added) (alteration in original) (internal citations omitted).

As my colleagues acknowledge, “this suit is unique, in that

it is one of the first widespread class actions to challenge the

conditions of detention for civilly confined SVPs.” It is not

only unique, but it requires us to answer questions never

before squarely addressed in this context. This factor alone

should be enough to entitle these individual defendants to dis-

missal.

My colleagues hang their analytical hat on Youngberg v.

Romeo, 457 U.S. 307, 322 (1982) for the proposition that

“civilly detained persons must be afforded ‘more considerate

treatment and conditions of confinement than criminals whose

conditions of confinement are designed to punish.’ ” This is

a nice general quote mined out of context, but it gets us

nowhere in pursuit of an answer to the central question of

whether we have in this lawsuit violations of clearly estab-

lished rights. Why? Because Youngberg dealt with the passive

confinement for their own good of mentally defective per-

sons. In contrast, and as recently recognized by the Supreme

Court, sexually violent predators are confined in order to pro-

tect “the public from dangerous individuals with treatable as

well as untreatable conditions.” Seling v. Young, 531 U.S.

250, 262 (2001). In addition, the Seling Court said that the

case before it for decision “gives us no occasion to consider

how the civil nature of a confinement scheme relates to other

challenges, such as due process . . . .” Id. at 266. It is little

wonder, therefore, that my colleagues admit in connection

with Youngberg that “it is not always clearly established how

much more expansive the rights of civilly detained persons are

HYDRICK v. HUNTER 12013

than those of criminally detained persons.” I disagree with my

colleagues’ claim that “[i]t follows logically [from Young-

berg], then, that the rights afforded prisoners set a floor for

those [rights] that must be afforded SVPs, and that where

Defendants violate a standard that is clearly established in the

prison context, the violation is clearly established under the

SVP scheme.” Where does this come from? It sounds new to

me. Certainly it is not a proposition clearly established and

controlling at the time relevant to this lawsuit. Saying that

rights follow logically from one area to another is an admis-

sion that those rights have not yet been clearly established in

the area to which they are being transported. Prisoners have

constitutional rights flowing from certain constitutional guar-

antees that do not apply out of the criminal context. Which

clearly established “prisoner rights” are they talking about? I

cannot find my colleagues’ bold assertion anywhere in any

case before this one. Where is the required level of specificity

required to hold these individuals personally responsible for

their acts? It is nowhere to be found. Where is the fair warn-

ing to them as to the constitutional limits of their compulsory

treatment programs? Expanding and extending some rights

from other contexts and extrapolating others defies the salu-

tary purpose of the doctrine of qualified immunity.

I find more than significant the relative newness of the civil

commitment procedure at issue in this case. California’s Sex-

ually Violent Predator Act was enacted in 1995. The constitu-

tionality of this concept was not upheld until 1997, see

Kansas v. Hendricks, 521 U.S. 346 (1997); and California’s

own courts did not begin definitively to iron out controversial

statutory issues of treatment — such as involuntary medica-

tion without a separate court order — until 2004. See In re

Calhoun, 18 Cal. Rptr. 3d 315 (Cal. Ct. App. 2004). When did

the acts complained of here occur? 1998, in the midst of grap-

pling by appellate courts with this new modality. In fact, the

courts have yet to clarify how the Constitution protects sexu-

ally violent predators from various confinement and treatment

modalities. Context is critical to the determination of whether

12014 HYDRICK v. HUNTER

a constitutional right has been established. The Supreme

Court confirmed this principle in Washington v. Harper, 494

U.S. 210 (1990), a lawsuit filed by a mentally ill state prisoner

complaining against treatment with anti-psychotic drugs

against his will and without a judicial hearing. In holding that

such treatment did not violate either substantive or procedural

due process, the Court said, “The extent of a prisoner’s right

under the Clause to avoid the unwanted administration of

antipsychotic drugs must be defined in the context of the

inmate’s confinement.” Id. at 222.

We read the same message in Parham v. J.R., 442 U.S.

584, 608 (1979): “What process is constitutionally due cannot

be divorced from the nature of the ultimate decision that is

being made.” See also Morrissey v. Brewer, 408 U.S. 471,

481 (1972) (“[D]ue process is flexible and calls for such pro-

cedural protections as the particular situation demands.”).

Noteworthy in Washington v. Harper was a correct holding

by the Washington Supreme Court that the individual defen-

dants were entitled to qualified immunity, 494 U.S. at 218

n.5. The case was allowed to proceed, but only to consider

claims for injunctive and declaratory relief under § 1983 as

well as state law — which is precisely what should happen

here. It seems that we are now requiring doctors and other

staff to consult not just with lawyers before they devise a pro-

cedure or treatment for a sexually violent predator, but with

the courts.

The Supreme Court warned against this result in Parham,

saying, “Due process has never been thought to require that

the neutral and detached trier of fact be law trained or a judi-

cial or administrative officer. Surely, this is the case as to

medical decisions, for neither judges nor administrative hear-

ing officers are better qualified than psychiatrists to render

psychiatric judgments. . . . The mode and procedure of medi-

cal diagnostic procedures is not the business of judges.” Id. at

607-08 (internal citations and quotations omitted).

HYDRICK v. HUNTER 12015

The penalty for not anticipating a court ruling will be indi-

vidual liability. This unfortunate situation is precisely what

the doctrine of qualified immunity is designed to avoid.

II

It would appear that my colleagues’ approach to this case

is at irreconcilable odds with cases from at least four other

Circuits, the First, Fourth, Sixth, and Eleventh.

In Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701 (1st

Cir. 1993), a panel including Stephen Breyer, now Justice

Breyer, observed that claims against government officials for

money damages cannot proceed unless predicated upon

“clearly established” statutory or constitutional rights of

which a reasonable person would have been aware. Id. at 704.

In affirming a grant of summary judgment against the plain-

tiffs on the ground that the law relied upon by them was not

yet settled at the time of the actions in question, the Court

observed that “[t]he determination is time-critical.” Id. In

other words, no individual can be held personally liable for

violating a law that has not yet become particularized, which

means fixed in connection with a precise context. First the

clearly established law, then — and only then — potential

personal monetary liability for public officials. Due process

alone would seem to require such a sequence. As the Sixth

Circuit explained in McCloud v. Testa, 97 F.3d 1536, 1541

(6th Cir. 1996),

the ultimate burden of proof in this suit is on the

plaintiffs, who must establish that Testa’s conduct

[as a public official] violated a federal right so

clearly established that any official in his position

would have understood that he was under an affirma-

tive duty to refrain from such conduct.

The court went on to indicate that “individual capacity defen-

dants in § 1983 cases receive some benefit from legal doubt

12016 HYDRICK v. HUNTER

about the clarity of existing law. Id. at 1542. The Eleventh

Circuit would agree with this proposition, remarking that

“ ‘[i]f case law, in factual terms, has not staked out a bright

line, qualified immunity almost always protects the defen-

dant.’ ” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.

1997) (quoting Kelly v. Curtis, 21 F.3d 1544, 1550 (11th Cir.

1994)) (alteration in original). Relying on one of our cases,

Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir. 1989), the

Fourth Circuit remarked that public officials “ ‘are not

required to predict the future course of constitutional law’ ”;

and that [r]arely will a state official who simply enforces a

presumptively valid state statute lose her immunity from

suit.” Swanson v. Powers, 937 F.2d 965, 968, 969 (4th Cir.

1991). The court concluded with this wise statement:

The ills that would result from allowing suits for

damages against state officials who simply perform

their official duties are evident. Suits such as these

have the potential to threaten the foundations of our

most basic governmental functions-in this case, the

collection of the revenue. Because the plaintiffs’

asserted rights were not clearly established and

because Secretary Powers acted reasonably in

enforcing presumptively valid state statutes, we hold

that she is entitled to immunity from suit. The judg-

ment of the district court is therefore reversed.

Id. at 973.

In so far as my colleagues insist on borrowing principles

from other contexts, they part company with the Sixth Circuit,

which has held:

We may not impose personal liability upon state

social workers because they failed to anticipate that

principles of law developed in other distinct contexts

would be applied to them, for to do so would be con-

trary to the admonition in Anderson v. Creighton,

HYDRICK v. HUNTER 12017

107 S. Ct. at 3039, that we should not allow plain-

tiffs to convert “the rule of qualified immunity into

a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.”

Eugene D. v. Karman, 889 F.2d 701, 711 (6th Cir. 1989)

(emphasis added). See also Adams v. St. Lucie County Sher-

iff’s Dept., 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmond-

son, J., dissenting) (public officials not obligated to draw

analogies from other cases), rev’d en banc, 998 F.2d 923, 923

(11th Cir. 1993) (per curiam) (adopting the reasoning of

Judge Edmondson’s dissent and reversing district court’s

denial of summary judgment to public official).

III

I take issue also with my colleagues’ assertion that because

the facts are not yet developed, it is too early in this lawsuit

to dismiss because of qualified immunity. This claim misses

the mark. As held repeatedly by the Supreme Court, qualified

immunity is immunity from being sued, not just from dam-

ages. This principle explains (1) why the Court warned in

Anderson against non-specific pleadings that allege violations

of “extremely abstract rights,” 483 U.S. at 639; and (2) the

Court’s holding in Mitchell v. Forsyth, 472 U.S. 511, 526

(1985) that “[u]nless the plaintiff’s allegations state a claim of

violation of clearly established law, a defendant pleading

qualified immunity is entitled to dismissal before the com-

mencement of discovery.” The Court revisited this issue again

in Behrens v. Pelletier, 516 U.S. 299 (1996). In the course of

overruling a mistaken opinion by the First Circuit, the Court

said,

The source of the First Circuit’s confusion was its

mistaken conception of the scope of protection

afforded by qualified immunity. Harlow and Mitch-

ell make clear that the defense is meant to give gov-

ernment officials a right, not merely to avoid

12018 HYDRICK v. HUNTER

“standing trial,” but also to avoid the burdens of

“such pretrial matters as discovery . . . , as

‘[i]nquiries of this kind can be peculiarly disruptive

of effective government.’ ”

Id. at 308 (quoting Mitchell, 472 U.S. at 526 (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 817 (1982))) (alterations in origi-

nal). The Court, in reversing us in 1991 on this very issue,

said, “[W]e repeatedly have stressed the importance of resolv-

ing immunity questions at the earliest possible stage in litiga-

tion.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).

Finally, my colleagues express their intention “not to evis-

cerate the notice pleading standard” that the system generally

uses to commence a lawsuit. I do not believe this caution is

well suited to this context. Again, I reiterate that the question

of qualified immunity requires prompt resolution. Anderson

seems to require pleadings more specific than the usual “no-

tice” standard. At the very least, pleadings against state offi-

cials in their individual capacities must demonstrate an

alleged violation of a particularized and relevant constitu-

tional right which has been clearly established. Hunter v. Bry-

ant also would seem to so require. To hold otherwise is to

disserve a doctrine that calls for resolution of the issue at the

“earliest possible stage” in litigation. Id. at 227.

IV

The question remains, how specific must the right allegedly

violated be defined in order to answer the question whether it

was clearly established? Wilson v. Layne, 526 U.S. 603

(1999) gives us a good example of the degree of specificity

required. In Wilson, the Court concluded first that officers

who took members of the media into a homeowner’s home to

observe and to record the execution of an arrest warrant did

so in clear violation of the Fourth Amendment. Nevertheless,

the Court concluded also that the officials who did so were

entitled to qualified immunity. The Court said that the appro-

HYDRICK v. HUNTER 12019

priate question “is . . . whether a reasonable officer could have

believed that bringing members of the media into a home dur-

ing the execution of an arrest warrant was lawful . . . .” Id. at

615. Concluding that at the time of the violation the law was

“at best undeveloped,” the Court said, “Given such an unde-

veloped state of the law, the officers in this case cannot have

been ‘expected to predict the future course of constitutional

law.’ ” Id. at 617 (quoting Procunier v. Navarette, 434 U.S.

555, 562 (1978)).

From these precedents, I conclude that the proper question

in this case is whether it was clearly established at the time

of the events in this case that the Constitution prohibited these

individual officials from engaging in any of the actionable

behaviors attributed to them in connection with the manage-

ment and treatment of sexually violent predators civilly con-

fined under state law for treatment and for the protection of

the public. After reviewing all the relevant cases and authori-

ties, I answer this question in the negative.

The analytical error made by my colleagues becomes quite

apparent when they say,

Thus, there are two bodies of law from which we

might draw “clearly established” law for qualified

immunity purposes: first, where the SVPs claim a

violation of a right that is clearly established even in

the prison context, and second, where the SVPs

claim a violation of a right that is clearly established

for all civilly detained persons.

What this acknowledges is that we cannot find any clearly

established substantive rights in the SVP context, so we have

to borrow them from other areas, such as prison rights and the

rights of persons civilly detained for their own good and who

pose a demonstrated threat to society. An approach like this

certainly works well when the question is what constitutional

rights might these sexually violent predators have in this sys-

12020 HYDRICK v. HUNTER

tem, but it fails utterly when the issue is whether we hold

individuals personally liable ex post facto for their actions.

This lawsuit should proceed so that specific answers can be

found to the constitutional questions raised by the plaintiffs,

but it should proceed only in connection with possible declar-

atory or injunctive relief. To do otherwise will deter govern-

ment officials in the future from doing anything not to the

liking of a sexually violent predator. The penalty for making

a good faith mistake in an area of undeveloped law may be

the costs of a lawsuit and the potential personal liability aris-

ing out of the official performance of a state job.