                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 05 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

GEORGE N. ALLEN,                                 No. 12-17121

              Plaintiff - Appellant,             D.C. No. 1:06-cv-01801-BLW-
                                                 LMB
  And

RAYMOND AMADEO; et al.,                          MEMORANDUM*

              Plaintiffs,

  v.

STEPHEN MAYBERG, Director,
California Mental Health Department; et
al.,

              Defendants - Appellees.



WAYNE P. DEBERRY,                                No. 12-17124

              Plaintiff - Appellant,             D.C. No. 1:06-cv-01801-BLW-
                                                 LMB
  And

GEORGE N. ALLEN; et al.,

              Plaintiffs,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

STEPHEN MAYBERG, Director,
California Mental Health Department; et
al.,

             Defendants - Appellees.



GEORGE N. ALLEN; et al.,                      No. 13-16250

             Plaintiffs - Appellants,         D.C. No. 1:06-cv-01801-BLW-
                                              LMB
  v.

STEPHEN MAYBERG, Director,
California Mental Health Department; et
al.,

             Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
                B. Lynn Winmill, Chief District Judge, Presiding

                       Argued and Submitted April 7, 2014
                              Pasadena, California

Before: BRIGHT,** FARRIS, and HURWITZ, Circuit Judges.




       **
            The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
      George N. Allen, Wayne P. DeBerry, Darryell Frazier, and Jackie Robinson

appeal from the district court’s sua sponte dismissal of their complaints alleging

that Title 9, Section 4350 of the California Code of Regulations, which bans civilly

committed persons from possessing electronic devices capable of connecting to a

wired and/or wireless communications network or capable of being modified for

such connection, violates their constitutional rights. The district court denied

appellants’ motion for a preliminary injunction and dismissed their claims pursuant

to 28 U.S.C. § 1915(e)(2). We have jurisdiction under 28 U.S.C. § 1291. Because

we conclude that appellants sufficiently pleaded a confinement claim under the

Fourteenth Amendment but failed to state other claims, we affirm in part, reverse

in part, and remand.

      I. Background

      Appellants are sexually violent predators (SVPs) civilly committed to

Coalinga State Hospital (“CSH”) under California’s Sexually Violent Predator

Act.1 See Cal. Welf. & Inst. Code. § 6600 et seq.

      Prior to 2009, CSH allowed patients to possess personal computers, but

prohibited hardware, accessories, software, or other media that allowed

      1
       An SVP is an individual previously “convicted of a sexually violent offense
against one or more victims and who has a diagnosed mental disorder that makes
the person a danger to the health and safety of others in that it is likely that he or
she will engage in sexually violent criminal behavior.” Cal. Welf. & Inst. Code. §
6600(a)(1).
communication with other individuals by computer or electronic device via any

form of wired or wireless capability. The policy also prohibited games, movies, or

electronic images that depicted overt sexual acts or violence with adults and

children. CSH instituted a similar policy in October 2006 for all electronic

devices. In October 2009, however, the California Department of Mental Health

promulgated a regulation banning patient use of personal computers and electronic

devices with wireless capabilities and effectively declaring items already in

patients’ possession to be contraband. Cal. Code. Regs. tit. 9, § 4350 (2010). The

regulation, which became final in 2010, provides:

      Electronic devices with the capability to connect to a wired (for
      example, Ethernet, Plain Old Telephone Service (POTS), Fiber Optic)
      and/or a wireless (for example, Bluetooth, Cellular, Wi-Fi
      [802.11a/b/g/n], WiMAX) communications network to send and/or
      receive information are prohibited, including devices without native
      capabilities that can be modified for network communication. The
      modification may or may not be supported by the product vendor and
      may be a hardware and/or software configuration change. Some
      examples of the prohibited devices include desktop computers, laptop
      computers, cellular phones, electronic gaming devices, personal
      digital assistant (PDA), graphing calculators, and radios (satellite,
      shortwave, CB and GPS).

Id. (hereinafter “Section 4350”).

      Before the promulgating of Section 4350, several patients, including

appellants, had filed suits against hospital officials (collectively “defendants”)

challenging conditions of their civil confinements and alleging that various CSH
policies and procedures violated their constitutional rights. After Section 4350 was

adopted, the appellants amended their complaints to attack its constitutionality.

The district court consolidated the cases, and appointed stand-by counsel.

      Plaintiffs then filed a motion for a preliminary injunction, which the district

court denied. Pursuant to 28 U.S.C. § 1915(e)(2), the district court then sua sponte

dismissed appellants’ claims concerning Section 4350.

         The district court entered judgments under Rule 54(b). Appellants

subsequently filed notices of appeal on the merits. This court consolidated the

appeals and appointed counsel.

      Because the district court issued judgments under Rule 54(b) dismissing

appellant’s constitutional claims, the appeals from the denial of injunctive relief are

moot, having merged with their appeals on the merits. See Teamsters Joint

Council No. 42 v. Int’l Bhd. of Teamsters, AFL-CIO, 82 F.3d 303, 307 (9th Cir.

1996).

      II. Discussion

              A. Standard of Review

      Section 1915(e)(2) allows the sua sponte dismissal of claims filed in forma

pauperis if the action “(i) is frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” The order identified failure to state a claim upon
which relief can be granted as the basis for its sua sponte order of dismissal. No

notice was given to the parties.

      This court reviews de novo a district court’s dismissal of claims under 28

U.S.C. § 1915(e). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

“The standard for determining whether a plaintiff has failed to state a claim upon

which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal

Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.

Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (citing Lopez v. Smith, 203 F.3d 1122

(9th Cir. 2000)). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). Because appellants drafted their own

complaints, we construe their pleadings “‘liberally’” and afford them “‘the benefit

of any doubt.’” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz

v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)).

             B. Merits

      Appellants argue they have plausibly raised three claims that Section 4350

infringes upon their Constitutional rights.

                    1. Confinement Claim
      Appellants first argue that Section 4350 is excessively punitive in light of

the defendants’ purpose and could be accomplished through less-restrictive means.

      “[T]he Fourteenth Amendment Due Process Clause requires states to

provide civilly-committed persons with access to mental health treatment that gives

them a realistic opportunity to be cured and released.” Sharp v. Weston, 233 F.3d

1166, 1172 (9th Cir. 2000) (citing Ohlinger v. Watson, 652 F.2d 775, 778 (9th Cir.

1980)). “Because the purpose of confinement is not punitive, the state must also

provide the civilly-committed with ‘more considerate treatment and conditions of

confinement than criminals whose conditions of confinement are designed to

punish.’” Id. (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)). Thus,

civilly detained individuals have a substantive due process right to be free from

restrictions that amount to punishment. United States v. Salerno, 481 U.S. 739,

746-47 (1987); Bell v. Wolfish, 441 U.S. 520, 535 (1979). However, restrictions

that have a legitimate, non-punitive government purpose and that do not appear

excessive in relation to that purpose are permissible. Bell, 441 U.S. at 535, 539;

Salerno, 481 U.S. at 747. “A reasonable relationship between the governmental

interest and the challenged restriction does not require an ‘exact fit . . . .’” Valdez

v. Rosenbaum, 302 F.3d 1039, 1046 (9th Cir. 2002) (quoting Mauro v. Arpaio, 188

F.3d 1054, 1060 (9th Cir. 1999) (en banc)).
      Here, appellants have alleged sufficient facts to plausibly claim that Section

4350 is punitive. Robinson’s third amended complaint alleges that defendants

confiscated his electronic devices without justification. Frazier’s complaint alleges

that neither his laptop computer nor his Play Station Portable game system can

access the internet and confiscation of them violates his due process rights.

Frazier’s complaint also states that patients had laptop computers for more than

three years without problems and identified alternative methods for CSH to ensure

that patients do not illicitly use electronic devices. Allen and DeBerry make

similar allegations and contend that defendants confiscated all electronic devices

instead of prosecuting patients who violated procedures in place.

      In light of these allegations, appellants stated a plausible condition of

confinement claim and the district court erred in dismissing that claim. It may well

be that the defendants can provide reasonable justifications for Section 4350’s ban

on the relevant devices. But, at the pleading stage, given the allegations in the

complaints, the district court should have not have dismissed the confinement

claims sua sponte.

                     2. Right to Treatment Claim

      Appellants also allege that Section 4350 undermines their mental health

treatment. Due process “requires states to provide civilly-committed persons with

access to mental health treatment that gives them a realistic opportunity to be cured
and released.” Sharp, 233 F.3d at 1172 (citing Ohlinger, 652 F.2d at 778). “In

determining whether the State has met its obligations in these respects, decisions

made by the appropriate professional are entitled to a presumption of correctness.”

Youngberg, 457 U.S. at 324. “States enjoy wide latitude in developing treatment

regimens” for SVPs. Kansas v. Hendricks, 521 U.S. 346, 368 n.4 (1997) (citing

Youngberg, 457 U.S. at 317).

      Appellants’ complaints do not allege that their treatment requires using

laptops or electronic devices or even the necessity of such devices. Nor do

appellants allege that Section 4350 falls outside “the exercise of professional

judgment” that is “entitled to a presumption of correctness.” Youngberg, 457 U.S.

at 322, 324. Accordingly, the district court did not err in dismissing this claim.

                   3. First Amendment Claim

      Finally, appellants argue that Section 4350 violates the First Amendment.

Appellants do not argue that Section 4350 limits their access to information, but

argue for the first time on appeal that video games qualify for First Amendment

protection under Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011).

We decline to address this untimely argument. Padgett v. Wright, 587 F.3d 983,

985 n.2 (9th Cir. 2009) (per curiam). Thus, the district court did not err by

dismissing this claim.

      III. Conclusion
      For the reasons above, we AFFIRM IN PART, REVERSE IN PART,

AND REMAND to the district court consistent with this disposition.2 Each party

shall bear its own costs.




      2
       Because we rely entirely on the allegations in the plaintiffs’ complaints,
Defendants’ motion to strike portions of appellants’ excerpts of record and
references in appellants’ brief relying on such information is denied as moot. For
the same reasons, we also deny appellants' motion to take judicial notice of Napa
State Hospital's electronic regulation policy.
