                 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;
THOMAS PRICE; JIMMY GUTHRIE;
BRIAN KELLY; WOODROW JONES;                No. 03-56712
VASHON JACKSON; BRUCE RILEY;
                                             D.C. No.
FRED SCOTT; DEAN DANFORTH;
SAMMY PAGE; JAMES PETERS;                CV-98-07167-TJH
GRAYLING MITCHELL; CARLOS                  ORDER AND
SAUCEDO; ANTHONY DACAYONA;                   OPINION
CHARLES SALAS, et al.,
              Plaintiffs-Appellees,
                v.
MELVIN E. HUNTER, aka/Jon
DeMorales; CRAIG NELSON;
GRENDA ERNST,
            Defendants-Appellants,
               and
                                      




                           10913
10914                 HYDRICK v. HUNTER


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 August 30, 2007

 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
10920               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.
                      HYDRICK v. HUNTER                    10921
                           ORDER

  The opinion in this case published at 466 F.3d 676 (9th Cir.
2006), is withdrawn and replaced by the new opinion and dis-
sent filed concurrently with this order.

  Chief Judge Schroeder and Judge Pregerson voted to deny
appellant’s petition for panel rehearing and for rehearing en
banc. Judge Trott voted to grant the petition for panel rehear-
ing and recommended granting the petition for rehearing en
banc. The full court has been advised of the petition for
rehearing en banc, and no judge of the court has requested en
banc rehearing. See Fed. R. App. P. 35(b). The petitions for
panel rehearing and for rehearing en banc are DENIED.

  No further petitions for rehearing will be entertained.


                          OPINION

PREGERSON, Circuit Judge:

   Plaintiffs-Appellees represent a class of approximately six
hundred civilly committed persons and those awaiting com-
mitment at Atascadero State Hospital pursuant to California’s
Sexually Violent Predators Act (“SVP Act”). Plaintiffs allege
that the conditions of their confinement violate their constitu-
tional rights. They request declaratory and injunctive relief, as
well as monetary damages. Defendants filed a motion to dis-
miss based largely on qualified immunity. The district court
denied the motion, which the Defendants now appeal. We
have jurisdiction under 28 U.S.C. § 1291; we affirm in part
and reverse in part.
10922                     HYDRICK v. HUNTER
                  FACTUAL BACKGROUND

  A.    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.” Cal. Welf. & Inst.
Code § 6600(a).1 The Department of Corrections and the
Department of Mental Health evaluate convicts who commit-
ted predicate offenses at least six months before those con-
victs complete their sentences. See id. § 6601. If those two
departments agree that the convict might qualify as an SVP,
the district attorney (or counsel for the county in which the
evaluated person was convicted) may file a petition for com-
mitment. See id. § 6601(i). If a jury finds someone to be an
SVP, that person is civilly committed for an indefinite period
to commence after his criminal sentence is fulfilled. Id.
§§ 6602-6604.

   Once civilly committed, SVPs undergo a five-phase treat-
ment program. Phase One consists of group sessions that edu-
cate the SVP about California’s SVP Act. During Phase One,
the SVP must attend and participate in the treatment sessions.
If he does not, his access level2 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 treat-
ment sessions is used against him at future probable cause and
  1
     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 part of the Plaintiffs’ class.
   2
     Atascadero assigns everyone an access level that establishes 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, courtyard, etc.
                         HYDRICK v. HUNTER                        10923
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 “treatment.” Plaintiffs
allege that the signed statements are often used against them
as admissions of illness 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, an SVP has a right to a “show cause hearing”
to determine whether his commitment should be continued.
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 person
is committed for two years from the date of the finding. Id.
§ 6605(e). Successive periods of commitment can be contin-
ued indefinitely, or until the SVP completes all five phases of
treatment. Upon successful completion of Phase Five, the
SVP is conditionally released under the supervision of the
California Mental Health Department. According to the Plain-
tiffs, “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.”3

  B.    The Current Lawsuit

   On September 2, 1998, the Plaintiffs filed a pro se class
action, under 42 U.S.C. § 1983, 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
  3
   At oral argument it was alleged that, since the Plaintiffs filed their
complaint, three (of over seven hundred) people committed under the Sex-
ually Violent Predators Act have been released.
10924                    HYDRICK v. HUNTER
(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). The Plaintiffs sought injunctive
and declaratory relief, as well as monetary damages, on the
grounds that the policies and procedures governing their con-
finement and treatment at Atascadero State Hospital violate
their constitutional rights.

   In March 1999, the district court appointed pro bono coun-
sel for the Plaintiffs. Counsel filed an amended complaint
approximately five months later. The Defendants filed a
motion to dismiss. The motion to dismiss raised Eleventh
Amendment and qualified immunity defenses. The district
court denied the motion.

   The Plaintiffs filed a second amended complaint on August
14, 2002.4 Both the first and second amended complaints
alleged that the Defendants violated the Plaintiffs’ rights by,
inter alia: (1) force-medicating the Plaintiffs in non-
emergency situations; (2) reducing the Plaintiffs’ access
levels and other privileges as a form of punishment for refus-
ing to participate in treatment sessions or as retaliation for fil-
ing lawsuits; (3) putting the Plaintiffs in restraints for
nonthreatening and/or nondisruptive conduct, including the
refusal to participate in treatment or therapy; (4) subjecting
the Plaintiffs to public strip-searches (sometimes while in
four-point restraints); (5) failing to protect the Plaintiffs from
abuse by other patients or by Atascadero employees; (6) fail-
ing to provide the Plaintiffs with constitutionally satisfactory
conditions of confinement; (7) forcing the Plaintiffs to partici-
pate in treatment; and (8) denying the Plaintiffs adequate
treatment, thereby converting the Plaintiffs’ civil confinement
to a de facto extension of their prison sentence.
  4
   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                   10925
   The Defendants moved to dismiss the second amended
complaint, on the same grounds presented in their first motion
to dismiss. The district court again denied the motion. The
Defendants timely appealed. The Defendants contend that the
district court erred by failing to rule that the Eleventh Amend-
ment, state abstention doctrine, or qualified immunity barr the
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.
See Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001).
To determine if the Defendants are entitled to qualified immu-
nity, we review de novo whether governing law was clearly
established at the time of the alleged violation and whether
the specific 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). A
“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).
10926                     HYDRICK v. HUNTER
   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. P. 8(a)(2). Thus,
when reviewing the sufficiency of a complaint before receiv-
ing any evidence, our task is 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-
existent factual record.” Id. at 957. While “government offi-
cials 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 applicable here.
The policy justifying qualified immunity motions at this stage
is to protect officers against the burden of discovery and pre-
trial motions. See Behrens v. Pelletier, 516 U.S. 299, 308
(1996). In this case, it appears that discovery was almost com-
plete. The Defendants could have presented this as a motion
for summary judgment, and we would have a more developed
factual record to guide our decision. However, because the
Defendants’ motion is framed as a motion to dismiss, we must
evaluate the merits of the Defendants’ qualified immunity
defense before we know the full extent of the alleged abuses
at Atascadero, or the reason behind Atascadero policy, or the
level of involvement the Defendants had in creating the con-
ditions at Atascadero. As we decide the Defendants’ 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).5
  5
    With respect to our dissenting colleague, the Plaintiffs’ complaint
states more than “violations of extremely abstract rights.” See Dissent at
                           HYDRICK v. HUNTER                          10927
  B.    The Law of the Case Doctrine

   The Plaintiffs argue that under the law of the case doctrine,
we should not reach the merits of the Defendants’ appeal
because the Defendants’ second motion to dismiss was barred
by the district court’s denial of the Defendants’ first motion
to dismiss. The relevant facts are as follows: after the Plain-
tiffs filed their first amended complaint, the Defendants
moved to dismiss for failure to state a claim and based on
qualified immunity. The district court denied the motion, and
the Defendants did not appeal. The Plaintiffs filed a second
amended complaint, in which they changed only the name of
one of the Defendants. The Defendants then moved to dismiss
on grounds substantially similar to those in the previous
motion. The district court again denied the motion. The Plain-
tiffs argue that the Defendants’ second motion to dismiss is an
impermissible “second bite at the apple” and should be dis-
missed under the law of the case doctrine.

   [1] “Under the law of the case doctrine, a court is ordinarily
precluded from reexamining an issue previously decided by
the same court, or a higher court, in the same case.” Richard-
son v. United States, 841 F.2d 993, 996 (9th Cir. 1988) (cita-
tions 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

10956 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). The
Plaintiffs might be able to provide evidentiary support for their claims.
Alternately, the Defendants might be able to justify their behavior, or at
least convince us that their conduct was not clearly in violation of the
Plaintiffs’ rights. But the point of the Rule 12(b)(6) motion is not to evalu-
ate the veracity of the Plaintiffs’ allegations, or to speculate as to the
Defendants’ justifications for their actions. Rather, unless it is “beyond
doubt” that a plaintiff cannot prove facts that would entitle him to relief,
a Rule 12(b)(6) motion must be denied. 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.
10928                 HYDRICK v. HUNTER
States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir.
2000) (quoting Liberty Mut. Ins. 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 both of Defendants’ motions
to dismiss in one-line orders. Thus, we do not know the dis-
trict court’s grounds for denying the motions. Nor can we say
that the district court decided any issue by implication in the
first order. The district court could have denied either motion
for any number of procedural or technical reasons unrelated
to the substance of the motions. It is possible that the district
court denied the Defendants’ second motion based on the law
of the case doctrine, but, it is also possible 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 that 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 we cannot determine the bases for
the district court’s denial of the motions, the “law of the case”
does not apply. Therefore, we address the appeal on the mer-
its.

  C.    Eleventh Amendment            Immunity       and     the
        Abstention Doctrine

   [3] The Defendants concede that suits for injunctive or
declaratory relief do not violate the Eleventh Amendment
under Ex parte Young, 209 U.S. 123 (1908). The Defendants
contend, instead, that the Eleventh Amendment bars the Plain-
tiffs’ request for monetary damages. The Plaintiffs cannot
seek monetary 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 damage suits against state officials in their per-
                           HYDRICK v. HUNTER                          10929
sonal capacity. 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 Plaintiffs allege the Defendants acted in individual
and official capacities, and therefore, the Plaintiffs are suing
them in both their individual and official capacities. Thus we
presume the Plaintiffs are seeking monetary damages against
the 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 offi-
cial capacity suit for damages would be barred). Accordingly,
the Eleventh Amendment does not bar the Plaintiffs’ claim for
damages against the Defendants in so far as they are being
sued in their individual capacities.

   [5] The Defendants also argue that they are immune
because the Plaintiffs are attempting to enforce pendent state
law claims in federal court. The Plaintiffs refer, in their first,
second, and tenth claims for relief, to provisions in the Cali-
fornia Constitution that parallel applicable provisions in the
United States Constitution. The 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
against violations of federal law. Ybarra v. Bastian, 647 F.2d
891, 892 (9th Cir. 1981). Instead, the Plaintiffs cite California
law only where it is legitimate to do so, e.g., where there is
a state-created liberty or property interest at stake. See, e.g,
Paul v. Davis, 424 U.S. 693, 710-12 (1976). Accordingly, the
Plaintiffs’ claims are not barred on this ground, and we need
not consider the Defendants’ arguments that the Plaintiffs’
state law claims are “novel and complex” under 28 U.S.C.
§ 1367(c).6
  6
    The Defendants also suggest we should “abstain” under the Abstention
Doctrine. The Defendants appear to confuse abstention with denial of pen-
dent jurisdiction under the “novel and complex” clause of 28 U.S.C.
§ 1367(c). If they meant abstention proper, they waived that argument by
failing to raise it before the district court. See Conn. Gen. Life Ins. v. New
10930                      HYDRICK v. HUNTER
  D.     Section 1983 Claims

   [6] The Defendants’ first substantive argument is that the
Plaintiffs have not properly pled a claim under § 1983,
because they are not proper defendants for a § 1983 suit. “To
sustain an action 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).

   All the Defendants were acting under the color of Califor-
nia law when they engaged in the alleged unconstitutional
conduct. The Defendants argue, however, that their conduct
did not deprive the Plaintiffs of constitutional or statutory
rights.

   A person deprives another of a constitutional right, where
that person “does an affirmative act, participates in another’s
affirmative acts, or omits to perform an act which [that per-
son] 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 established 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 743-44.

   In limited circumstances, a person can also be subject to
§ 1983 liability for the acts of others. Although there is no

Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003). Nor do we see
any reason to abstain in this situation. Pullman abstention is not appropri-
ate because the driving force behind each of the 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. v. Pullman Co., 312 U.S. 496, 499-501 (1941).
                      HYDRICK v. HUNTER                    10931
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] The Plaintiffs proceed on two theories: (a) that the
Defendants created policies and procedures that violated the
Plaintiffs’ constitutional rights; and (b) that the Defendants
were willfully blind to constitutional violations committed by
their subordinates. Because the Defendants were directors and
policy-makers for Atascadero State Hospital, the Plaintiffs
have sufficiently alleged that the constitutional violations they
suffered were “set in motion” by the Defendants’ policy deci-
sions or, at the very least, that the Defendants knew of these
abuses and demonstrated a deliberate indifference to the
Plaintiffs’ plight.

   [8] Under Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir.
1988), the Plaintiffs will need to show how the deliberate
indifference or affirmative actions of each Defendant caused
a constitutional violation before they can seek monetary dam-
ages against any individual Defendant. At this stage of plead-
ing, however, the Plaintiffs’ need not specifically delineate
how each Defendant contributed to the violation of their con-
stitutional rights. Indeed, we do not see how, prior to discov-
ery, they could plead the individual roles of each state officer
with any more specificity. Taking the statements in the com-
plaint in the light most favorable to the Plaintiffs, the Plain-
tiffs may be able to state a claim against all of the named
Defendants, each of whom played an instrumental role in
policymaking and enforcement at Atascadero State Hospital.
Therefore, we hold the Plaintiffs have sufficiently alleged the
Defendants’ role in the alleged constitutional violations
against SVPs to survive this motion to dismiss.

  E.   Qualified Immunity

  The Defendants also argued that the district court erred
when it denied them qualified immunity. As the Defendants
10932                 HYDRICK v. HUNTER
have conceded, qualified immunity is only an immunity from
a suit for damages, and does not provide immunity from suit
for declaratory or injunctive relief. See L.A. Police Protective
League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993). The
Defendants argue that they are entitled to qualified immunity
to the extent that the Plaintiffs seek monetary damages.

   In analyzing the Defendants’ qualified immunity defense,
we must determine: (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 conduct violated constitutional bounds; and (3)
whether a reasonable public official could have believed that
the alleged conduct was lawful. See Newell v. Sauser, 79 F.3d
115, 117 (9th Cir. 1996).

   [9] To withstand the Defendants’ claims of qualified immu-
nity, the Plaintiffs must allege a violation of a right that was
clearly established in 1998 — the time the alleged constitu-
tional violations first occurred. See Anderson, 483 U.S. at
639-40; Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002).
To defeat qualified immunity, “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, the Plaintiffs need not establish that the Defendants’
“behavior had been previously declared unconstitutional.”
Blueford v. Prunty, 108 F.3d 251, 254 (9th Cir. 1997). Rather,
if binding authority indicates that “the disputed right existed,
even if no case had specifically so declared,” the Defendants
would be on notice of the right. Id. at 255. If the occasion has
not risen for our circuit to reach a question, we may draw
clearly established law from other circuits. See Prison Legal
News v. Lehman, 397 F.3d 692, 701 (9th Cir. 2005); 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
                           HYDRICK v. HUNTER                          10933
clear trend in the case law” that recognition of the right is
“only a matter of time”).

  Before we consider the Plaintiffs’ claims individually to
determine whether the claims were clearly established in
1998, we address a threshold question that applies to the
Plaintiffs’ claims more generally. The Defendants argue, as a
broad proposition, that damages are not appropriate in this
suit because the law applicable to SVPs is still evolving. 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. However, the Defendants may have trans-
gressed some clearly established boundaries.

   [10] First, civilly detained persons must be afforded “more
considerate 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 follows logically, then, that the rights afforded prisoners set
a floor for those that must be afforded SVPs, and that where
the Defendants violate a standard that is clearly established in
the prison context, the violation is clearly established under
the SVP scheme, except where the California SVP statutory
scheme would give a reasonable official reason to believe that
the body of law applicable to prisoners would not apply.7

   [11] Second, where there is clearly established body of law
that applies to all civilly committed persons, there is no rea-
  7
   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, except where the statute itself creates a relevant difference. Blue-
ford, 108 F.3d at 255.
10934                  HYDRICK v. HUNTER
son 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.

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 pur-
poses: 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.

   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 per-
sons. As discussed below, the rights afforded civilly detained
persons are flexible enough to take into account the circum-
stances of detention. The law generally requires a careful bal-
ancing of the rights of individuals who are detained for
treatment, not punishment, against the state’s interests in insti-
tutional security and the safety of those housed at the facility.
See, e.g, Youngberg, 457 U.S. at 319-22. In weighing those
interests, it cannot be ignored that, unlike the plaintiff in
Youngberg who was civilly committed because of mental
infirmities, SVPs have been civilly committed subsequent to
criminal convictions and have been adjudged to pose a danger
to the health and safety of others. Therefore, the rights of
                          HYDRICK v. HUNTER                          10935
SVPs may not necessarily be coexistensive with those of all
other civilly detained persons.8

   With these threshold issues in mind, we review each of the
Plaintiffs’ claims to determine whether they have sufficiently
pled a violation of clearly established rights.

     1.   First and Fourteenth Amendment Rights

   The Plaintiffs contend that the Defendants retaliated against
them for filing lawsuits regarding conditions at Atascadero
State Hospital. Specifically, the Plaintiffs claim that, as a
result of preparing this suit and others regarding conditions at
Atascadero, they have been subjected to access-level reduc-
tions, harassment by Atascadero personnel, and excessive
room searches and seizures of property. The Plaintiffs also
alleged that they have been denied library access in retaliation
of their bringing suit and filing complaints.

   [12] The Fourteenth Amendment right to access the courts
survives detention. See 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 guaranteed to people institu-
tionalized in a state mental hospital regardless of whether they
   8
     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 SVPs 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-
gress the boundary. Surely it would not require “law train[ing]” or
clairvoyance to recognize that these actions, as alleged by the Plaintiffs,
do no comport with due process.
10936                      HYDRICK v. HUNTER
are civilly committed after criminal proceedings or civilly
committed on grounds of dangerousness”). Similarly, punish-
ment in retaliation for exercising one’s right to access the
courts may constitute a First Amendment violation. See Rizzo
v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).

   [13] We have held that the prohibition against retaliatory
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,9 the
Plaintiffs may be able to prove they were punished in retalia-
tion for exercising their First and Fourteenth Amendment
rights to file grievances about the conditions of their confine-
ment. Accordingly, their claims should not be dismissed at the
Rule 12(b)(6) stage.

   The Plaintiffs also allege that the Defendants force them to
participate in treatment that violates their First Amendment
rights. Specifically, the Plaintiffs allege that the Defendants
bar SVPs from progressing beyond Phase One and obtaining
higher access levels until they sign contracts admitting that
they have an illness and need treatment. The decision to sign
the contract is the ultimate Catch-22: during 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.

   The Plaintiffs also allege that SVPs who attend but do not
vocally participate in group treatment sessions are found by
the Defendants to be “not progressing,” Accordingly, these
  9
   The Plaintiffs’ original pro se complaint contains particularly persua-
sive narratives on this issue. It details how Atascadero personnel
responded when they learned of this suit, altering schedules so that the
coordinators of this action would not be able to work together, telling the
Plaintiffs that their meeting in the library was an “illegal assembly,” limit-
ing law library time, scheduling mandatory group sessions during the
SVPs’ library time, and refusing to give SVPs drafting paper because it
was “only for the mental patients to draft appeals.”
                       HYDRICK v. HUNTER                   10937
SVPs do not advance to other phases of the program and their
access levels are restricted. The 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 the
Defendants may not punish them for exercising their rights.

   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. Specifically, 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 the Plaintiffs’ interest to participate in treatment,
and the State may create incentives to encourage such partici-
pation, “[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 retain those First
Amendment rights not inherently inconsistent with the cir-
cumstances of their detention. See Turner v. Safley, 482 U.S.
78, 89 (1987). The above statutory language strongly suggests
that refusal to recognize one’s “illness” or affirmatively par-
ticipate in treatment is not inherently inconsistent with the
purposes for which SVPs are detained.

   Granted, the Plaintiffs are not actually forced to speak, but
the stakes for refusing to speak are so high that the Plaintiffs’
participation in treatment is essentially compulsory. Indeed,
10938                  HYDRICK v. HUNTER
an SVP who exercised his right not to admit his illness could
be detained indefinitely. He would never advance past Phase
One of the program 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 held that a pro-
gram did not violate an SPV’s Fifth Amendment rights where
it “did not extend his term of incarceration . . . [or] affect his
eligibility for good-time credits or parole,” and the only
adverse consequence was that he was moved to the less desir-
able 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
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 Corr., 334 F. Supp. 2d
762, 770-73 (E.D. Pa. 2004). Similarly, in this case, where the
stakes for participation in treatment are so high, the depriva-
tions involved in refusing to participate in treatment may rise
to the level of compulsion that violates the First Amendment.

   [14] 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 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-
                        HYDRICK v. HUNTER                    10939
pation in such treatment. As such, these claims may be more
appropriately considered for declaratory or injunctive relief.

   [15] Thus, we hold that the Plaintiffs’ First Amendment
claims were based on clearly established law insofar as they
challenge retaliation for filing lawsuits. To the extent that the
claim relies on a First Amendment right not to participate in
treatment sessions, the Defendants have qualified immunity,
because the law on this point is not clearly established.

       2.   Fourth Amendment Rights

   The Plaintiffs allege that Defendants’ policies and practices
subject Plaintiffs to unreasonable searches, seizures, and
unnecessary use of force. According to the Plaintiffs, they are
subjected to public strip searches, retaliatory searches of their
possessions, and arbitrary seizures of their personal belong-
ings upon arrival at Atascadero. SVPs are also shackled dur-
ing transport to Atascadero and during visits with family and
friends. When they refuse to participate in treatment, SVPs
are subjected to “red light alarms” even when they do not
pose any physical risk.10 Moreover, SVPs are force-medicated
as a means of intimidation and punishment, and for the conve-
nience of staff.

   Accepting these allegations as true, the Plaintiffs may be
able to state a “clearly established” violation of their Fourth
Amendment rights, and thus, the claims are not appropriate
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 (quoting Michenfelder v. Sumner, 860
  10
   As explained in the complaint, a “red light alarm” is when ten to
twenty staff members surround and restrain the patient.
10940                     HYDRICK v. HUNTER
F.2d 328, 332 (9th Cir. 1988)). Thus, this protection certainly
extends to SVPs.

   [16] Of course, “the reasonableness of a particular search
[or seizure] is determined by reference to the [detention] con-
text.” Michenfelder, 860 F.2d at 332. There are concerns that
mirror those that arise in the prison context: e.g., “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.

   [17] Under this framework, we cannot dismiss the Plain-
tiffs’ claims. The “reasonableness” of a search or seizures is
a fact-intensive inquiry that cannot be determined at this
stage. See, e.g., Thompson, 111 F.3d 694 (9th Cir. 1997). It
is impossible to make such a fact-specific determination 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 justify the alleged searches or seizures. We cannot
say, then, that the Plaintiffs cannot possibly state a “clearly
established violation” based on any facts consistent with their
pleadings.11 Therefore, Defendants do not have a right to dis-
missal under Rule 12(b)(6) based on qualified immunity.

       3.   Double Jeopardy and Ex Post Facto Clauses

  The Plaintiffs allege violations of the Double Jeopardy and
Ex Post Facto clauses. While the Plaintiffs concede that these
two clauses have punishment as an essential prerequisite and
  11
    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 the Plaintiffs’ excessive force claims
under the Eighth and Fourteenth Amendments, and their claims for Sub-
stantive Due Process. We consider all these claims together below.
                          HYDRICK v. HUNTER                         10941
that the SVP Act is a civil detention statute, they claim that
the SVP Act is punitive as applied to them. As such, the
Plaintiffs argue that their Double Jeopardy and Ex Post Facto
claims are not barred.

   [18] 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. Super. Ct., 19 Cal. 4th 1138, 1171
(1999). The Plaintiffs’ claims based on the Double Jeopardy
and Ex Post Facto clauses of the federal constitution are fore-
closed.12

   [19] The Plaintiffs argue that Seling does not control
because they are not “seeking release” as was the habeas peti-
tioner in Seling. This is a distinction without a 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 hold 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 the claims related to the Ex Post Facto and Double
Jeopardy Clauses.
   12
      Seling did not, however, alter our authority to consider implementa-
tion of the SVP Act on the Plaintiffs’ other claims. See Seling, 531 U.S.
at 266 (“This case gives us no occasion to consider how the civil nature
of a confinement scheme relates to other constitutional challenges, such as
due process, or to consider the extent to which a court may look to actual
conditions of confinement and implementation of the statute to determine
in the first instance whether a confinement scheme is civil in nature.”).
10942                 HYDRICK v. HUNTER
    4.   Eighth and Fourteenth Amendment Claims

   [20] The Plaintiffs allege in their complaint that the “re-
strictive 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
essential prerequisite, the right to punish. See 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 proper vehicle to challenge the conditions of civil
commitment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16
(1979).

   [21] The thrust of the 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 hold that the district
court erred when it failed to dismiss the Eighth Amendment
claim against the Defendants.

   Of course, this is a small victory for the Defendants,
because the same claims for inhumane treatment and failure
to protect may be raised under the Fourteenth Amendment.
The standard applicable to SVPs under the Fourteenth
Amendment is at least coextensive with that applicable to
prisoners under the Eighth Amendment. See, e.g., Munoz v.
Kolender, 208 F. Supp. 2d 1125, 1146 (S.D. Cal. 2002)
(applying Fourteenth Amendment standards to SVPs because
“comparable standards apply to both prisoners’ Eighth
Amendment cruel and unusual punishment and Fourteenth
Amendment substantive due process analyses, with Four-
teenth Amendment analysis borrowing from Eighth Amend-
                      HYDRICK v. HUNTER                    10943
ment standards”); Frost v. Agnos, 152 F.3d 1124, 1128 (9th
Cir. 1998) (applying Eighth Amendment standards to evaluate
pretrial detainees’ Fourteenth Amendment claims). Moreover,
the Eighth Amendment provides too little protection for those
whom the state cannot punish. See Jones, 393 F.3d at 931-34;
Andrews, 253 F.3d at 1061. Plaintiffs apparently recognize
this, because their Eighth Amendment claims largely dupli-
cate those raised under the substantive due process clause of
the Fourteenth Amendment. Accordingly, we consider the
Plaintiffs’ allegations that the Defendants actions violate their
due process rights under the Fourteenth Amendment.

    5.   Fourteenth Amendment Procedural Due Process
         Claims

   The Plaintiffs allege a number of procedural due process
violations. They allege that Defendants force them to partici-
pate in the five-phase treatment program at Atascadero, and
based on their progression through that treatment program,
subject them to privilege reductions, access level reductions,
and reclassifications, and force them to take medication in
non-emergency situations. The Plaintiffs allege that these
deprivations occur without adequate notice of, or opportunity
to respond to, accusations of alleged sanctionable conduct.
The Plaintiffs cite caselaw applicable to prisoners and argue
that the procedural protections afforded to prisoners in this
context should be afforded them as well.

   [22] The Plaintiffs have not adequately pled the loss of
clearly established due process rights. The Supreme Court has
explained that due process claims by prisoners depend in
large part on whether the prisoners have some “justifiable
expectation rooted in state law.” Montayne v. Haymes, 427
U.S. 236, 242 (1976); see also Washington v. Harper, 494
U.S. 210, 220 (1990). SVPs differ from prisoners in at least
one important respect: an individual who has been designated
an SVP has been found, under California law, to have “a diag-
nosed mental disorder that makes the person a danger to the
10944                    HYDRICK v. HUNTER
health and safety of others.” Cal. Welf. & Inst. Code
§ 6600(a)(1). Once a jury designates someone an SVP, Cali-
fornia law requires that the SVP be provided “treatment for
his or her diagnosed mental disorder.” Id. § 6606(a). More-
over, the SVP commitment statute gives the Department of
Mental Health Services the authority to forcibly medicate an
SVP for purposes of treatment. Id. § 6606(b).13

   The five-phase treatment program at Atascadero must be
“consistent with current institutional standards for the treat-
ment of sex offenders, and . . . based on a structured treatment
protocol developed by the State Department of Mental
Health.” Id. § 6606(c). Its purpose, and the purpose of the
attendant changes in privileges, access level, and classifica-
tion under its protocols, is not punishment, but treatment in
preparation for the SVP’s eventual release.

   [23] Accordingly, the Plaintiffs cannot have an expectation
to be free of such treatment under state SVP law. The
complained-of actions are, at least facially, part of the treat-
ment plan Atascadero is legally required to provide to persons
that the state has deemed mentally ill. Given this relevant dif-
ference between SVPs and prisoners, we cannot say that the
procedural protections provided to prisoners as they relate to
forced medication and forced treatment clearly apply to SVPs.

   Moreover, there are numerous procedural safeguards
afforded to an individual facing an action for civil commit-
ment. Proceedings to designate a person an SVP are initiated
only after a finding by two practicing psychologists or psychi-
atrists that the individual has a “mental disorder” such that he
is likely to re-offend unless he receives “appropriate treatment
and custody.” See id. § 6601(d)-(f). Persons in SVP proceed-
ings have the right to counsel, the right to consult experts, the
right to have the state prove their SVP status beyond a reason-
  13
    The Plaintiffs do not challenge California’s SVP Act.
                         HYDRICK v. HUNTER                        10945
able doubt, and the right to a unanimous jury verdict. See id.
§§ 6603-04.

  In addition, after initial designation, an SVP is given peri-
odic opportunities to challenge his continued need for treat-
ment. See id. §§ 6605, 6608. Thus, SVPs are not subjected to
Atascadero’s treatment program without certain procedural
protections, nor are they relegated to indefinite treatment
without the ability to seek judicial intervention.

   [24] The Plaintiffs may have liberty interests akin to those
possessed by prisoners in this context, and thus may have the
right to further procedural protections within the walls of
Atascadero. But such rights are not yet clearly established.
Because the Plaintiffs have been designated as mentally ill
and in need of treatment, a reasonable state official would
have reason to believe that the law applicable to the treatment
and medication of prisoners did not apply to SVPs. We there-
fore hold that Defendants are entitled to qualified immunity
in regards to Plaintiffs’ procedural due process claims.
Accordingly, we reverse the district court’s holding as to the
Plaintiffs’ sixth cause of action.

       6.   Fourteenth Amendment Substantive Due Process
            Claims

   The Plaintiffs contend that the Defendants have violated
their substantive due process rights by failing to protect them
from the abuse of other detainees and employees. The Plain-
tiffs’ claims can be broken down into three general categories:
(a) claims that the Defendants failed to protect the Plaintiffs
from the abuses of other persons detained at Atascadero; (b)
claims that the Defendants failed to provide constitutionally
adequate conditions of detention; and (c) claims that the
Defendants use excessive force against them.14
  14
    Here, we consider the Plaintiffs’ substantive due process allegations
from their Second, Fifth, and Seventh causes of action.
10946                 HYDRICK v. HUNTER
   First, the Plaintiffs claim that the Defendants have turned
a blind eye to the conduct of other persons detained at Atas-
cadero State Hospital. Specifically, the Plaintiffs allege that
they are intentionally exposed to feces, urine, vomit, spit, and
blood in Atascadero’s courtyards, bathrooms, hallways, din-
ing rooms, and gymnasium, and that other detainees contami-
nate their food with spit and other unsanitary taint. The
Plaintiffs allege that they are subjected to verbal harassment,
physical abuse, and sexual assaults by other patients at the
Hospital. They contend that they are targeted because they are
sex offenders.

   The patient population at Atascadero State Hospital com-
prises males who are civilly and 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. Welf. & Inst. Code
§ 6316 (covering “mentally disordered sex offenders”); Cal.
Penal Code § 2684 (covering mentally ill prisoners transferred
to Atascadero State Hospital for psychiatric stabilization).
According to the Plaintiffs, their forced integration as openly
labeled “sexually violent predators” subjects them to verbal
harassment, physical abuse, and sexual assaults from the rest
of the Atascadero population.

   [25] The 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 due process clause to reasonably safe conditions of con-
finement 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); Neely v. Feinstein, 50 F.3d 1502, 1508 (9th Cir.
1995) (finding “clearly established” that patients have a “con-
                          HYDRICK v. HUNTER                        10947
stitutional right to be safe in the state institutions to which
they are committed”). Assuming the Plaintiffs can prove the
allegations in their complaint and the Defendants’ blindness
to such conditions in Atascadero, qualified immunity would
not be appropriate on these claims.

   [26] Second, the Plaintiffs allege that the conditions of con-
finement are constitutionally inadequate — that they are
forced to live in squalid conditions that are inhumane and
pose a serious health risk. The Plaintiffs have a clearly estab-
lished right not to be exposed to such unsanitary conditions.
See Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th
Cir. 1995) (collecting cases in prison context); Youngberg,
457 U.S. at 315-16 (establishing a right to “personal security”
for involuntarily committed persons).15 Given the Plaintiffs’
allegations, their claims as to the unsanitary and unsafe condi-
tions of confinement cannot be dismissed under Rule
12(b)(6).

   [27] The Plaintiffs also allege several claims of excessive
force, e.g., (a) that “red light alarms” are used when the Plain-
tiffs refuse to participate in treatment, even when persons
pose no threat of physical violence; (b) that shackles are used
during transportation and during visits with family and
friends; and, more generally, (c) that Plaintiffs are subjected
to “excessive punishment . . . [and] excessive use of force and
physical restraints.” It is well-established that detained per-
sons have a right to be free from excessive force. While
excessive force claims by prisoners are reviewed under the
Eighth Amendment’s malicious and sadistic standard, Hudson
v. McMillian, 503 U.S. 1 (1992), the more generous Four-
teenth Amendment standard applies to those who are civilly
confined. As we previously stated:
   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)
10948                     HYDRICK v. HUNTER
       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, “due
process requires that the conditions and duration of confine-
ment [for civilly confined persons] bear some reasonable rela-
tion to the purpose for which persons are committed.” Seling,
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 substantive
due process protections of the Fourteenth Amendment apply
to SVPs. See Andrews, 253 F.3d at 1061 (applying the Four-
teenth Amendment’s “objective reasonableness” standard to
excessive force claims brought by civilly committed SVPs).16

   [28] 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
  16
     While Jones, Neer, and Seling are more recent cases, they do little
more than restate the contours of law clearly established in Youngberg, a
1982 case, and Bell, 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 con-
strued 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                    10949
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. See
Hudson v. McMillian, 503 U.S.1, 7 (1992). If plaintiffs allege
conduct that sinks below protections afforded prisoners under
the Eighth Amendment, their claim certainly states a violation
of their rights under the Fourteenth Amendment.

   [29] The Plaintiffs allege 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 the Defendants’ profes-
sional discretion. Therefore, we affirm 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 — the
Plaintiffs may be able to state a “clearly established” Four-
teenth Amendment Substantive Due Process violation, and we
cannot, at the Rule 12(b)(6) stage, dismiss these substantive
due process claims.

    7.   Fourteenth Amendment Equal Protection Claims

   According to the Plaintiffs, they are being treated more
restrictively 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.
10950                 HYDRICK v. HUNTER
   [30] Even though the 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 Dep’t of Chicago v. Mosley,
408 U.S. 92 (1972). This court upheld application of a
“heightened scrutiny standard” when evaluating an equal pro-
tection violation under Washington State’s Sexually Violent
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 estab-
lished 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. Oklahoma, 316 U.S.
535, 541 (1942). The Plaintiffs may be able to claim viola-
tions of several clearly established fundamental rights: a lib-
erty interest in freedom from bodily restraint and personal
security, Youngberg, 457 U.S. at 315-316, and a fundamental
right to access the courts, as described below. Accordingly,
heightened scrutiny is the standard for equal protection claims
implicating these fundamental rights. And the Plaintiffs, in
line with their allegations, may be able to show that the differ-
ential treatment between themselves and other civilly commit-
ted persons violates equal protection because such treatment
does not meet heightened scrutiny.

   [31] 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
prisons, 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 the Plaintiffs’
claims rely on classifications not related to fundamental lib-
erty interests, the Defendants will have qualified immunity
unless there is no rational basis for the classification.
                       HYDRICK v. HUNTER                    10951
   [32] Even under the rational basis standard, we cannot dis-
miss the Plaintiffs’ equal protection claims at this stage. The
Plaintiffs’ pleadings raise several questionable classifications.
For example, it seems arbitrary that SVPs should be treated
more harshly than other civilly committed persons in job
placement and privileges. Based on the pleadings, the Plain-
tiffs may be able to prove a violation of clearly established
law congruent with the facts alleged. Admittedly, at this stage,
the Defendants have not fully developed and presented the
rationale for their actions and there may be differences
between SVPs and other civilly committed persons that war-
rant differential treatment. But we leave it to the district court,
on a fuller factual record, to consider whether the classifica-
tions are irrational and arbitrary.

    8.   Sixth Amendment Right to Counsel and
         Fourteenth Amendment Right of Access to Courts

   The 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
probable cause and commitment hearings.

   [33] Plaintiffs have a statutory right to counsel in probable
cause proceedings and in commitment hearings. Cal. Welf. &
Inst. 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 criminal proceed-
ings, 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. Donovan, 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, Procu-
10952                     HYDRICK v. HUNTER
nier, 416 U.S. at 419; Ching v. Lewis, 895 F.2d 608, 609 (9th
Cir. 1990), and to use available law library resources, Keenan
v. Hall, 83 F.3d 1083 (1996), subject to legitimate restrictions
related to the purpose and circumstances of detention, see
Turner, 482 U.S. at 89. Where such rights have been upheld
in the prison context, SVPs must be afforded rights at least as
broad.

   [34] Such a fact specific inquiry can hardly be undertaken
at this point, when it is not clear what the Defendants have
done to impede access to the courts, or why they have done
so, or how the Defendants’ actions have affected the Plain-
tiffs’ right of access. Nonetheless, the 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.

       9.   Right to Privacy             under      the     Fourteenth
            Amendment

   [35] The Plaintiffs allege that the Defendants’ policies do
not allow for privacy when showering, sleeping, using the toi-
lets, or participating in therapy sessions. It is clearly estab-
lished 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 circumstances of institutional life demand
that privacy be limited, it is clearly established that gratuitous
invasions of privacy violate the Fourteenth Amendment. See
id. Again, this calls for a highly factual inquiry where the
facts are not fully developed. In Grummett, for example, we
considered the gender 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. See id. at
494-95. Such facts are simply not available to us at this stage
of proceedings.17 Nonetheless, the Plaintiffs may be able to
  17
    Moreover, we note that it is not, as the Defendants hinted in their
briefs, the burden of the SVPs to show that there is no compelling justifi-
                          HYDRICK v. HUNTER                         10953
state a violation of clearly established law congruent with
their allegations, and as such we will not dismiss their claim
under Rule 12(b)(6).

                                   ***

   In sum, we affirm the district court’s decision to deny qual-
ified immunity on the Plaintiffs’ first, second, seventh, eighth,
ninth, and tenth causes of action to the extent noted above.
We reverse in part and hold that the Defendants have quali-
fied immunity from suit on the Plaintiffs’ Ex Post Facto, Dou-
ble Jeopardy, Procedural Due Process, and Eighth
Amendment claims.

  F.    The Defendants’ Belief That Their Conduct Was
        Lawful Was Not Objectively Reasonable

   [36] Even if the 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 mistakenly 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).

  [37] Whether the Defendants’ conduct was reasonable
involves a factual analysis of the circumstances surrounding
Defendants’ actions and a determination of whether a reason-

cation 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).
10954                 HYDRICK v. HUNTER
able 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
objectively reasonable. The 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.” The Defendants could not have
been so completely unaware of 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, the 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 the
Defendants’ 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
                      HYDRICK v. HUNTER                    10955
been taken in the discharge of their official duties. It is here
that I part company.

   The issues raised by these plaintiffs are certainly important
and require our attention, but the issues can be thoroughly liti-
gated and authoritatively decided without involving the state
officials as individuals. Requiring these individuals to partici-
pate in their individual capacities not only is unnecessary, but
to render them personally liable for damages contravenes the
very purpose of the doctrine of qualified immunity as
explained by the Supreme Court:

    [P]ermitting damages suits against government offi-
    cials can entail substantive social costs, including the
    risk that fear of personal monetary liability and
    harassing litigation will unduly inhibit officials in
    the discharge of their duties.

Anderson v. Creighton, 483 U.S. 635, 638 (1987). Accord-
ingly, the Court has held that officials are immune unless “the
law clearly proscribed the actions” they took, Mitchell v. For-
syth, 472 U.S. 511, 528 (1985); and that the unlawfulness
must be apparent in the light of preexisting law. Malley v.
Briggs, 475 U.S. 335, 344-45 (1986).

   On this record, and under these circumstances, I conclude,
with all respect to my colleagues, that these officials as indi-
viduals are entitled to qualified immunity against both suit
and damages — now, not later. In my view, the particulars
and the contours of the alleged constitutional rights upon
which the plaintiffs rely were not so clearly established at the
times under scrutiny and at the level of specificity required
such that a reasonable official hired by the state to cope 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
10956                 HYDRICK v. HUNTER
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
    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
                      HYDRICK v. HUNTER                    10957
    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
    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 rely 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 confine-
ment are designed to punish.’ ” This is an unremarkable quote
used out of context, but it gets us nowhere in pursuit of an
answer to the central question of whether we have in this law-
suit violations of clearly established rights. Why? Because
Youngberg dealt with the passive confinement for their own
good of mentally defective persons. In contrast, and as
recently recognized by the Supreme Court, sexually violent
predators are confined in order to protect “the public from
dangerous individuals with treatable as well as untreatable
10958                  HYDRICK v. HUNTER
conditions.” Seling v. Young, 531 U.S. 250, 262 (2001). In
addition, the Seling Court said that the case before it for deci-
sion “gives us no occasion to consider how the civil nature of
a confinement scheme relates to other constitutional chal-
lenges, such as due process . . . .” Id. at 266. It is little won-
der, therefore, that my colleagues admit in connection with
Youngberg that “it is not always clearly established how much
more expansive the right of civilly detained persons are than
those of criminally detained persons.” I disagree with my col-
leagues’ claim that “[i]t follows logically [from Youngberg],
then, that the rights afforded prisoners set a floor for those
[rights] that must be afforded SVPs, and that where Defen-
dants violate a standard that is clearly established in the
prison context, the violation is clearly established under the
SVP scheme[.]” Certainly this “logic” based assertion 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 admission 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 guarantees that do not
apply out of the criminal context. Which clearly established
“prisoner rights” are they talking about? I cannot find my col-
leagues’ 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 warning to them as to
the constitutional limits of their compulsory treatment pro-
grams? Expanding and extending some rights from other con-
texts and extrapolating others defies the salutary purpose of
the doctrine of qualified immunity.

  My colleagues concede that the defendants are entitled to
qualified immunity with respect to the plaintiffs’ procedural
due process claims under the Fourteenth Amendment. Why?
Because these plaintiffs are markedly different than prisoners.
The plaintiffs are subject to a program mandated by state law
requiring that they be treated for their diagnosed mental disor-
                      HYDRICK v. HUNTER                    10959
ders, treatment which includes forcible medication and is sub-
ject to “numerous procedural safeguards.” The critical
distinction recognized by my colleagues — in my view —
should carry over to all claims made by these plaintiffs, not
just the claim to which it is selectively applied.

   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 and two
years before Seling. In fact, the courts have yet to clarify if
and how the Constitution protects sexually violent predators
from various confinement and treatment modalities. Context
is critical to the determination of whether 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 confine-
ment.” 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.”).
10960                 HYDRICK v. HUNTER
   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.” 442
U.S. at 607-08 (internal citations and quotations omitted).

   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-
                      HYDRICK v. HUNTER                  10961
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
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
10962                 HYDRICK v. HUNTER
    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,
    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) (Edmonson,
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 Edmond-
son’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
                       HYDRICK v. HUNTER                   10963
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
    “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). See also
Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (“[I]f the
defendant does plead the immunity defense, the district court
should resolve that threshold question before permitting dis-
covery.”); Maraziti v. First Interstate Bank of California, 953
F.2d 520, 526 (9th Cir. 1992) (discovery should not be
allowed until immunity has been decided).
10964                 HYDRICK v. HUNTER
   Finally, my colleagues express their intention “not to evis-
cerate the notice pleading standard” that our 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. Hunter, 502 U.S. at 227.
As Justice Kennedy said in Siegert v. Gilley,

    [t]he heightened pleading standard is a departure
    from the usual pleading requirements of Federal
    Rules of Civil Procedure 8 and 9(b), and departs also
    from the normal standard for summary judgment
    under Rule 56. But avoidance of disruptive discov-
    ery is one of the very purposes for the official immu-
    nity doctrine, and it is no answer to say that the
    plaintiff has not yet had the opportunity to engage in
    discovery. The substantive defense of immunity con-
    trols.

500 U.S. 226, 236 (1991) (Kennedy, J., concurring). See also
Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (“When
a public official pleads the affirmative defense of qualified
immunity in his answer, the district court may, on the offi-
cial’s motion or on its own, require the plaintiff to reply to
that defense in detail. . . . There is a powerful argument that
the substantive right of qualified immunity supplants the Fed-
eral Rules’s scheme of pleading by short and plain state-
ment.”); Butler v. San Diego Dist. Attorney’s Office, 370 F.3d
956, 963-64 (9th Cir. 2004).
                      HYDRICK v. HUNTER                    10965
                               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-
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 . . . .” Wil-
son, 526 U.S. at 615. Concluding that at the time of the
violation the law was “at best undeveloped,” the Court said,
“Given such an undeveloped 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 per-
sons in the position of these individual officials from engag-
ing in any of the behaviors attributed to them in connection
with the management and treatment of sexually violent preda-
tors civilly confined under state law for treatment and for the
protection of the public. After reviewing all the relevant cases
and authorities, I answer this question in the negative.

  The analytical error made by my colleagues becomes
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
10966                 HYDRICK v. HUNTER
    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. An approach like this cer-
tainly works well when the unanswered question is what con-
stitutional rights might these sexually violent predators have
in this system, 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.
