1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER TO SHOW CAUSE - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

HARRY VERN FOX,

Plaintiff,

v.

HENRY RICHARDS, et al.,

Defendants.

 Case No. C06-5063 RBL/KLS

 ORDER DENYING MOTION TO

 DISMISS AND GRANTING LEAVE

 TO AMEND COMPLAINT AS TO 

 CLAIMS 2, 4 AND 6

This civil rights action has been referred to United States Magistrate Judge Karen L.

Strombom pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Plaintiff Harry Vern

Fox is a resident of the Special Commitment Center (SCC), a Washington Department of Social and

Health Services (DSHS) facility for the care and confinement of persons detained or civilly

committed under Wash. Rev. Code ch. 71.09, Washington's sexually violent predator statute. On

August 21, 2006, Plaintiff brought this action pursuant to 42 U .S.C. § 1983, alleging that

Defendants violated Plaintiffs constitutional rights during his confinement at the SCC. (Dkt. # 13). 

Defendants move to dismiss Plaintiff’s Complaint (Dkt. # 13) pursuant to Fed. R. Civ. P.

12(b)(6) for failure to state a claim. (Dkt. # 18). In the alternative, Defendants request an order

directing Plaintiff to file an amended complaint that complies with Rule 8(a) of the Federal Rules. 

(Id.). In response, Plaintiff states that, in light of Hydrick v. Hunter, 466 F.3d 676 (9th Cir. 2006)

Case 3:06-cv-05063-RBL Document 35 Filed 04/03/07 Page 1 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER TO SHOW CAUSE - 2

and the Turay injunction, Defendants motion is without merit. (Dkt. # 25). Plaintiff fails to explain

how either the Hydrick or Turay cases are relevant to this case or why his complaint should not be

dismissed for failure to state a claim. 

By separate Report and Recommendation, the court is recommending dismissal of Claims (1),

(3) and (5) of Plaintiff’s Complaint. As to Plaintiff’s claims (2), (4), and (6), Defendants’ motion to

dismiss shall be denied and Plaintiff shall be granted leave to amend to properly plead a cause of

action under Section 1983.

I. STANDARD OF REVIEW

A. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)

The court’s review of a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6) is limited to

the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). All material factual

allegations contained in the complaint “are taken as admitted” and the complaint is to be liberally

“construed in the light most favorable” to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421

(1969); Lee, 250 F.3d at 688. A complaint should not be dismissed under Fed. R. Civ. P. 12(b)(6)

“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 

Dismissal under Fed. R. Civ. P. 12(b)(6) may be based upon “the lack of a cognizable legal

theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.

Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Vague and mere “[c]onclusionary

allegations, unsupported by facts” are not sufficient to state a claim under 42 U.S.C. § 1983. Jones v.

Community Development Agency, 733 F.2d 646, 649 (9th Cir. 1984); Pena v. Gardner, 976 F.2d

469, 471 (9th Cir. 1992). Even though the court is to construe the complaint liberally, such

construction “may not supply essential elements of the claim that were not initially pled.” Pena, 976

F.2d at 471. 

Case 3:06-cv-05063-RBL Document 35 Filed 04/03/07 Page 2 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

For ease of reference, Plaintiff’s claims are referred to by the same numbers in this Order as

they are in the court’s Report and Recommendation filed simultaneously herein:

ORDER TO SHOW CAUSE - 3

B. Stating A Claim Under 42 U.S.C. § 1983 

To state a claim under 42 U.S.C. § 1983: (1) the defendant must be a person acting

under color of state law; and (2) his conduct must have deprived the plaintiff of rights, privileges, or

immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.

527, 535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).

Implicit in the second element is a third element of causation. See Mt. Healthy City School Dist. v.

Doyle, 429 U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir. 1980), cert.

denied, 449 U.S. 875 (1980). When a plaintiff fails to allege or establish one of the three elements,

his complaint must be dismissed. 

Before the court “may dismiss a pro se complaint for failure to state a claim, it “must provide

the pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend

the complaint prior to dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also

Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). However, leave to amend need not be granted

where amendment would be futile or the amended complaint would be subject to dismissal. Saul v.

United States, 928 F.2d 829, 843 (9th Cir. 1991). 

II. DISCUSSION

Plaintiff seeks monetary and injunctive relief for the following alleged constitutional

violations1:

Claim 2: lack of access to cellular telephones, pagers, computer scaners,

and color print cartridges (Id. at ¶¶ 10, 12, 14, 16 15, 16)

Claim 4: restrictions on videos and reading materials (Id. at ¶ 9)

Claim 6: conditions of confinement at the SCC (Id. at ¶ 18)

Case 3:06-cv-05063-RBL Document 35 Filed 04/03/07 Page 3 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

Plaintiff also states that he "may not buy a computer," but his damages section states that he

is restricted from buying color print for his printer, which suggests that he has a computer. Whether

Plaintiff is alleging the deprivation of a computer or a color cartridge, the analysis remains the same. 

ORDER TO SHOW CAUSE - 4

A. (Claim 2) Plaintiff’s Claim to Cellular Telephones, Pagers, Computer Scanners, Color

Print Cartridges, and Increased Access to Telephones for Personal and Legal Use 

Plaintiff states that the number of telephones for resident use is inadequate, and that

he is restricted from purchasing a cell phone, scanner, pager, or color ink cartridge for his computer2. 

 Plaintiff does not indicate on what basis he is alleging that he has a constitutional right to the above

items. Assuming Plaintiff is alleging denial of meaningful access to the courts, he has failed to

adequately allege such a claim. The U.S. Supreme Court has held that prisoners (and thus by

analogy, civil detainees) have a right to meaningful access to the courts, but has not specified any

particular constitutionally required avenue to achieve that right. 

To state a claim for a violation of Plaintiff s right to meaningful court access, he must, at

minimum, plead that the alleged inadequacies of SCC's legal research resources caused him an actual

injury; that is, "actual prejudice with respect to contemplated or existing litigation, such as the

inability to meet a filing deadline or to present a claim." Lewis v. Casey, 518 US. 343, 351, 116 S.

Ct. 2174, 135 L. Ed. 2d 606 (1996). Plaintiff has failed to allege any actual injury, a specific instance

where he was actually denied access to the courts. See, Sands v. Lewis, 886 F.2d 1166, 1171 (9th

Cir. 1989). Thus, he fails to state a claim upon which relief can be granted. Fed. R. Civ. P. Rule

12(b)(6). 

Plaintiff also claims that allowing him access to more telephones would enhance his

relationships with his family members in the community. However, the Constitution does not

establish that Defendants must allow such devices to sexually violent predators in a secure mental

health treatment facility. Finally, Plaintiff claims that “under prior rulings” his phone access must be

adequate. To the extent Plaintiff refers to the Ninth Circuit’s holding in Young v. Selig, (Slip

Opinion No. 01-35697, 2001) (Unpublished), the court held in that opinion that a constitutional

violation could be found where the SCC was denying telephone access, particularly during times of

Case 3:06-cv-05063-RBL Document 35 Filed 04/03/07 Page 4 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER TO SHOW CAUSE - 5

familial emergencies. However, Plaintiff has not alleged any specific instances where telephone

access was denied him.

Plaintiff’s claims are too broadly and vaguely plead. Plaintiff must allege that a specific

person or persons acting under color of law acted to deprive him of a constitutional right or privilege

and describe how that deprivation caused him harm. The court will allow Plaintiff additional time to

file an amended complaint to cure, if possible, the defects in this claim. If he fails to timely file an

amended complaint of fails to adequately correct the deficiencies identified in this Order, the court

will recommend dismissal of this claim as frivolous. 

B. (Claim 4) Plaintiff’s First Amendment Right to Books/Magazines/Movies

Plaintiff alleges that Defendants violate his freedom of speech by restricting “certain” books,

magazines and movies he may view. (Dkt. # 13, ¶ 9). In the civil commitment setting, a

patient's liberty interests are balanced against the relevant state interests to determine

whether the state has violated the patient's constitutional rights. Youngberg v. Romeo, 457

U.S. 307, 318, 102 S. Ct. 2452, 73 L. Ed.2d 28 (1982). The state interest in providing

comprehensive treatment to sexually violent predators undoubtedly outweighs the residents'

interest in viewing counter-therapeutic material, which interferes with the state-mandated

treatment program. See, e.g., Wash. Rev. Code 71.09.010 ("the treatment needs of (the SVP)

population are very long term, and the treatment modalities for this population are very

different than the traditional treatment modalities for people appropriate for commitment

under the involuntary treatment act.").

The SCC is a treatment program for dangerous sex offenders who are unable to

control their sexually violent behavior. Wash. Rev. Code ch. 71.09. The state unquestionably has a

valid interest in treating such persons. In re Young, 122 Wn.2d 1, 26, 857 P.2d 989, 1000 (1993)

("(I)t is irrefutable that the State has a compelling interest both in treating sex predators and

protecting society from their actions."). Challenges to prison restrictions that are

asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate

Case 3:06-cv-05063-RBL Document 35 Filed 04/03/07 Page 5 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER TO SHOW CAUSE - 6

policies and goals of the corrections system." Pell v. Procunier, 417 U.S. 817, 94 S. Ct.

00,41 L. Ed. 2d 495 (1974). Similarly, First Amendment challenges of SCC policies must

be analyzed in terms of the legitimate polices and goals of the Sexually Violent Predator

Program. 

Plaintiff’s allegations of “certain” books, movies and magazines are too vague. Plaintiff has

failed to include an allegation that identifies the books, movies and/or magazines that he has been

denied access to and an allegation that such books, movies and magazines do not run counter to SCC

policies for maintaining institutional security and a therapeutic treatment environment. Additionally,

Plaintiff must allege facts showing how individually named defendants caused or personally

participated in causing the harm alleged in the complaint. Arnold 637 F.2d at 1355. 

The court will allow Plaintiff additional time to file an amended complaint to cure, if possible,

the defects in this claim. If he fails to timely file an amended complaint of fails to adequately correct

the deficiencies identified in this Order, the court will recommend dismissal of this claim as frivolous. 

C. (Claim 6) Plaintiff's Allegation That His Conditions of Confinement are Worse Than

Those in Prison Is Insufficient to State a Claim

Plaintiff claims that the conditions of his confinement at the SCC are worse than they were in

prison where he was for 31 years. (Dkt. # 13, ¶ 4). 

Broad allegations that the conditions at SCC are “worse” are insufficient to state a Section

1983 claim. Plaintiff must allege specific acts by specific individuals, stating when, where and what

occurred and what damage resulted to him. The court will allow Plaintiff additional time to file an

amended complaint to cure, if possible, the defects in this claim. If he fails to timely file an amended

complaint of fails to adequately correct the deficiencies identified in this Order, the court will

recommend dismissal of this claim as frivolous.

Accordingly, it is ORDERED:

1. Defendant’s motion to dismiss (Dkt. # 18) is DENIED as to Claim Nos. (2), (4) and

Case 3:06-cv-05063-RBL Document 35 Filed 04/03/07 Page 6 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER TO SHOW CAUSE - 7

6); Plaintiff is directed to file an Amended Complaint curing the above noted

deficiencies on or before May 31, 2007 as to Claim Nos. (2), (4) and (6) only. 

Failure to do so shall result in dismissal of this action; and 

2. The Clerk shall send a copy of this Order to Plaintiff and to counsel for Defendants.

DATED this 2nd day of April, 2007.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05063-RBL Document 35 Filed 04/03/07 Page 7 of 7