Hydrick v. Hunter

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES ALLEN HYDRICK; DAVID 
LANPHERE; SHAUNDALE GRIFFIN;
FRANK CISNEROS; PAUL PEDERSON;
STEVEN ROBERT CERNIGLIA; GARY
PRICE; DANIEL MROWICI; KENNETH
CIANCIO; MICHAEL MCCLURE; JAMES
MATA; RICHARD BISHOP; MELVIN
FIELDS; RON LEE; LEONARD PIERRE;
No. 03-56712
THOMAS PRICE; JIMMY GUTHRIE;
BRIAN KELLY; WOODROW JONES; D.C. No.
VASHON JACKSON; BRUCE RILEY; CV-98-07167-TJH
FRED SCOTT; DEAN DANFORTH;  ORDER AND
SAMMY PAGE; JAMES PETERS; AMENDED
GRAYLING MITCHELL; CARLOS CONCURRENCE/
SAUCEDO; ANTHONY DACAYONA; DISSENT
CHARLES SALAS, et al.,
Plaintiffs-Appellees,
v.
MELVIN E. HUNTER, aka/Jon
DeMorales; CRAIG NELSON;
GRENDA ERNST,
Defendants-Appellants,


11969
11970 HYDRICK v. HUNTER

and 
ROBERT MCDANIEL; JERRY
REYNOLDS; ROBERT PENATE;
SAMUEL ROBINSON; MARK
MAHHONEY; STEPHEN MAYBERG;
ANITA JUDD; MICHAEL HUGHES; JIM
VESS; JACK TOWNSEND; MARK
PALMER; ROCKY SPURGEON; ARNIE
GOBBELL; JIM WILEY; MARK
KALIONZES; ELAINE SHERRILL; GLAN
MIKEL; JAN MAIRE ALARCON;

BARUCH MARGALIT; WILLIAM
KNOWLTON; DIANE IMRAM; CARMEL
MULLER; DALE ARNOLD; GABRIELLA
PALADINO; JEAN DANSEREAU, et al.;
WILLIAM CHARLES THIEL; ROBERT
DOUGLAS LEFORT; ARNOLD
SCHWARZENEGGER, Governor of
California,
Defendants.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Chief District Judge, Presiding

Argued and Submitted
April 5, 2005—Pasadena, California

Filed June 1, 2006
Amended September 28, 2006

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson
and Stephen S. Trott, Circuit Judges.

Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Trott
11976 HYDRICK v. HUNTER

COUNSEL

Randall R. Murphy, Deputy Attorney General, Los Angeles,
California, for the defendants-appellants.

Kathryn M. Davis, Latham & Watkins, Los Angeles, Califor-
nia, for the plaintiffs-appellees.

ORDER

The concurrence/dissent filed June 1, 2006, is hereby
amended. The clerk shall filed the attached amended concur-
rence/dissent.
 HYDRICK v. HUNTER 11977
OPINION

PREGERSON, Circuit Judge:

Plaintiffs-Appellees represent a class of approximately 600
civilly committed persons and those awaiting commitment at
Atascadero State Hospital pursuant to California’s Sexually
Violent Predators Act (“SVP Act”). In this suit, Plaintiffs
allege that the conditions of their confinement violate their
constitutional rights. They request declaratory and injunctive
relief, as well as monetary damages. Defendants filed a
motion to dismiss based largely on qualified immunity, but
their motion was summarily denied by the district court. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm in
part, and reverse in part.

FACTUAL BACKGROUND1

1. California’s Sexually Violent Predators Scheme

The SVP Act defines an SVP as a person “convicted of a
sexually violent offense against two or more victims for
which he or she received a determinate sentence and who has
a diagnosed mental disorder that makes the person a danger
to the health and safety of others” i.e., is “likely [to] engage
in sexually violent criminal behavior.” See Cal. Welf. & Inst.
Code § 6600(a).2 At least six months before a person who has
committed the predicate offenses is to complete his sentence,
he is evaluated by the Department of Corrections and Depart-
ment of Mental Health. Id. § 6601. If those two departments
agree that the person evaluated may be an SVP, a petition for
commitment may be filed by the district attorney or counsel
1
The following facts are taken from the complaint and are assumed to
be true for purposes of reviewing this motion to dismiss.
2
Although the SVP Act is gender-neutral, there was only one female
SVP at the time of the filing of this complaint. She was not housed at
Atascadero, and was, therefore, not included as part of the Plaintiffs’ class.
11978 HYDRICK v. HUNTER
for the county in which the evaluated person was convicted.
Id. § 6601(i). If that person is found by a jury to be an SVP
who poses a danger to the health and safety of others, he is
civilly committed for an indefinite period to commence
after his criminal sentence is fulfilled. Id. §§ 6602-6604.

Once civilly committed, Plaintiffs undergo a five-phase
treatment program. Phase One comprises group sessions that
educate the SVP about California’s SVP Act. During Phase
One, the SVP is required to attend and participate in the treat-
ment sessions. If he does not, his access level3 is reduced and
he is not allowed to advance to Phase Two of the treatment
program. In addition, an SVP’s failure to attend or participate
in the treatment sessions is used against him at future proba-
ble cause and confinement hearings. The SVP cannot advance
beyond Phase One unless he signs a statement in which he
acknowledges that he has an “illness” that requires “treat-
ment.” Plaintiffs allege that the signed statements are often
used against the SVP in future probable cause and confine-
ment hearings.

Phases Two through Five of the treatment plan involve
“cognitive” treatment. This treatment includes viewing videos
that depict violent or other inappropriate sexual activities
while a repugnant odor or other unpleasant sensation is
applied to elicit a negative association.

Each year, a committed person has a right to a show cause
hearing to determine whether his commitment should be con-
tinued. Id. § 6605(a)-(b). If it is found that the SVP continues
to be a danger to the health or safety of the community, the
3
As explained in the complaint, all persons at Atascadero are assigned
an Access Level that dictates access to various facilities and privileges. A
Level 1 patient may not leave his unit without an escort, a Level 2 patient
may leave his unit, but cannot go to the courtyard or canteen, a Level 3
patient may have some access to the law library, canteen and courtyard,
etc.
 HYDRICK v. HUNTER 11979
person is committed for two years from the date of the find-
ing. Id. § 6605(e). These successive periods of commitment
can be continued indefinitely, or until the SVP completes all
five phases of treatment. Upon successful completion of
Phase Five, the SVP is conditionally released under the super-
vision of the California Mental Health Department. According
to Plaintiffs, “only a handful of SVPs have been allowed into
Phase Four and no SVP has progressed to Phase Five or ha[s]
been found to be ready for release under the treatment protocol.”4

2. The Current Lawsuit

On September 2, 1998, Plaintiffs filed a pro se class action,
under 42 U.S.C. § 1983, in district court against Defendants-
Appellants Stephen Mayberg (Director of the California
Department of Mental Health), Cal A. Terhune (Director of
the California Department of Corrections), Jon DeMorales
(former Executive Director at Atascadero State Hospital),
Grenda Ernst (Clinical Administrator at Atascadero State
Hospital), and Craig Nelson (Senior Psychologist Specialist at
Atascadero State Hospital) (collectively “Defendants”). Plain-
tiffs sought injunctive and declaratory relief, as well as mone-
tary damages, on the grounds that the policies and procedures
that govern Plaintiffs’ confinement and treatment at Atas-
cadero State Hospital violate Plaintiffs’ constitutional rights.

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

Plaintiffs filed a second amended complaint on August 14,
4
At oral argument it was alleged that, since the time Plaintiffs filed their
complaint, three (of the over seven hundred) people committed under the
Sexually Violent Predators Act have been released into their communities.
11980 HYDRICK v. HUNTER
2002.5 Both the first and second amended complaints alleged
that Defendants violated Plaintiffs’ rights by, inter alia: (1)
force-medicating Plaintiffs in non-emergency situations; (2)
reducing Plaintiffs’ access levels and other privileges as a
form of punishment for refusing to participate in treatment
sessions or as retaliation for filing lawsuits; (3) putting Plain-
tiffs in restraints for nonthreatening and/or nondisruptive con-
duct, including the refusal to participate in treatment or
therapy; (4) subjecting Plaintiffs to public strip-searches
(sometimes while in four-point restraints); (5) failing to pro-
tect Plaintiffs from abuse of other patients or of Atascadero
employees; (6) failing to provide Plaintiffs with constitution-
ally satisfactory conditions of confinement; (7) forcing Plain-
tiffs to participate in treatment; and (8) denying Plaintiffs
adequate treatment, thereby converting Plaintiffs’ civil con-
finement to a de facto extension of their prison sentence.

Once again, Defendants moved to dismiss the second
amended complaint, on the same grounds presented in their
first motion to dismiss. The district court again denied Defen-
dants’ motion to dismiss in a one line order. Defendants
timely filed their notice of appeal. Defendants contend that
the district court erred by failing to rule that the Eleventh
Amendment, state abstention doctrine, or qualified immunity
barred Plaintiffs’ suit.

ANALYSIS

A. Standard of Review

We review de novo the district court’s denial of a motion
to dismiss. Decker v. Advantage Fund, Ltd., 362 F.3d 593,
595-96 (9th Cir. 2004). Immunity under the Eleventh Amend-
ment presents a question of law, which we review de novo.
5
The second amended complaint substituted Melvin Hunter, the current
Executive Director at Atascadero State Hospital, for Jon DeMorales, the
former Executive Director, but contained no substantive alterations.
 HYDRICK v. HUNTER 11981
See Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001).
To determine if Defendants are entitled to qualified immunity,
we review de novo whether governing law was clearly estab-
lished at the time of the alleged violation and whether the spe-
cific facts alleged constitute a violation of established law.
See Mabe v. San Bernardino County Dept. of Pub. Soc.
Servs., 237 F.3d 1101, 1106 (9th Cir. 2001).

Although a district court’s denial of a motion under Federal
Rule of Civil Procedure 12(b)(6) is not ordinarily appealable,
the denial of a claim for immunity is appealable before final
judgment under the collateral order doctrine and is reviewed
de novo. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.
1999). All allegations of material fact are accepted as true and
should be construed in the light most favorable to Plaintiffs.
See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The
“complaint should not be dismissed [under Rule 12(b)(6)]
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would entitle the plain-
tiff to relief.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.
2002).

We note, again, the special difficulty of deciding the
motion to dismiss a Defendant on qualified immunity grounds
at this stage. Under the notice pleading standard of the Fed-
eral Rules, plaintiffs are only required to give a “short and
plain statement” of their claims. Fed. R. Civ. Pro. 8(a)(2).
Thus, “[w]hen a federal court reviews the sufficiency of a
complaint, before the reception of any evidence either by affi-
davit or admissions, [our] task is necessarily a limited one.
The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

As we recognized in Kwai Fun Wong v. United States, 373
F.3d 952 (9th Cir. 2004), a motion to dismiss on qualified
immunity grounds puts the court in the difficult position of
deciding “far-reaching constitutional questions on a non-
11982 HYDRICK v. HUNTER
existent factual record.” Id. at 957. We strongly suggested
that, while “government officials have the right . . . to raise
. . . qualified immunity defense on a motion to dismiss, the
exercise of that authority is not a wise choice in every case.”
Id. We find that especially true here. The policy justifying
qualified immunity motions at this stage is to protect officers
against the burden of discovery and pre-trial motions. Behrens
v. Pelletier, 516 U.S. 299, 308 (1996). In this case, the parties
had already engaged in discovery for several years, and it
appears that discovery was almost complete. Defendants
could have presented this as a motion for summary judgment,
and we would have a more developed factual record to guide
our decision. Because Defendants’ motion is framed as a
motion to dismiss, we must evaluate the merits of Defendants’
qualified immunity defense before we know the full extent of
the alleged abuses at Atascadero, or the reason behind Atas-
cadero policy, or the level of involvement Defendants had in
creating the conditions at Atascadero. As we decide Defen-
dants’ motion, however, we are cautious not to eviscerate the
notice pleading standard in suits where qualified immunity is
at issue. See Galbraith v. County of Santa Clara, 307 F.3d
1119, 1125-26 (9th Cir. 2002).6

6
With all respect to our dissenting colleague, Plaintiffs’ complaint states
more than “violations of extremely abstract rights.” See Dissent at 5962
(citing Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). Maybe
Plaintiffs can support these claims with evidentiary support and maybe
they can’t. Maybe Defendants can justify their behavior, or at least con-
vince us that their conduct was not clearly in violation of Plaintiffs’ rights.
But the point of the Rule 12(b)(6) motion is not to evaluate the veracity
of Plaintiffs’ allegations, or to speculate as to Defendants’ justifications
for their actions. Rather, unless it is “beyond doubt” that the plaintiff can-
not prove facts that would entitle him to relief, the Rule 12(b)(6) motion
must be denied. See Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). The
standard is no different for a civil rights claim than for any other claim.
See Galbraith, 307 F.3d at 1125-26.
 HYDRICK v. HUNTER 11983
B. The Law of the Case Doctrine Does Not Apply

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

[1] “Under the ‘law of the case’ doctrine, a court is ordinar-
ily precluded from reexamining an issue previously decided
by the same court, or a higher court, in the same case.” Rich-
ardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)
(citations omitted). For the law of the case doctrine to apply,
“the issue in question must have been ‘decided explicitly or
by necessary implication in [the] previous disposition.’ ”
United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th
Cir. 2000) (citing Liberty Mutual Ins. Co. v. EEOC, 691 F.2d
438, 441 (9th Cir. 1982)); United States v. Cote, 51 F.3d 178
(9th Cir. 1995) (“[T]he law of the case acts as a bar only when
the issue in question was actually considered and decided by
the first court.”).

[2] The district court denied Defendants’ first motion to
dismiss and their second motion to dismiss in a summary
order. Thus the district court’s grounds for rejecting Defen-
dants’ two motions are not explicit. Nor can we say that any
11984 HYDRICK v. HUNTER
issue was decided by implication in the first summary order
denying Defendants’ first motion to dismiss. Either motion
could have been denied for any number of procedural or tech-
nical reasons unrelated to the substance of the motions. It is
possible that Defendants’ second motion was denied based on
the law of the case doctrine, or that the district court decided,
in its discretion, not to apply the law of the case doctrine due
to subsequent changes in the law, or the “manifest injustice”
that would result given the new party to the suit. See United
States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997).
Because it is impossible for us to determine the basis of denial
of either motion, we conclude that the “law of the case” does
not apply and address the appeal on the merits.

C. Eleventh Amendment Immunity and the
Abstention Doctrine Do Not Bar Plaintiffs’ Claims

[3] Defendants concede that suits for injunctive or declara-
tory relief do not violate the Eleventh Amendment under Ex
parte Young, 209 U.S. 123 (1908). Defendants contend,
instead, that Plaintiffs’ request for monetary damages against
them is barred by the Eleventh Amendment to the Constitu-
tion. Defendants are correct that Plaintiffs cannot seek mone-
tary damages against state officials in their official capacity.
See Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836,
839 (9th Cir. 1997). But the Eleventh Amendment does not
bar suits seeking damages against state officials in their per-
sonal capacity. See Hafer v. Melo, 502 U.S. 21, 30 (1991);
Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394-95 (9th Cir.
1997).

[4] The second amended complaint states that Defendants
acted in and are being sued in their individual and official
capacities. This creates a presumption that Plaintiffs are seek-
ing monetary damages against defendants in their personal
capacity. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir.
1999) (stating a strong presumption in favor of a personal
capacity suit where an official capacity suit for damages
 HYDRICK v. HUNTER 11985
would be barred). Accordingly, the Eleventh Amendment
does not bar Plaintiffs’ claim for damages against Defendants
in their individual capacities.

[5] Defendants also argue that they are immune from Plain-
tiffs’ suit because Plaintiffs attempt to enforce pendent state
law claims in federal court. Plaintiffs refer, in their first, sec-
ond, and tenth claims for relief, to provisions in the California
Constitution that parallel the applicable provision in the
United States Constitution. Plaintiffs concede that they could
not prevail on a § 1983 claim based on a violation of state
law, because § 1983, by its own terms, protects only viola-
tions of federal law. See Ybarra v. Bastian, 647 F.2d 891, 892
(9th Cir. 1981). Instead, they cite California law only where
it is legitimate to do so, e.g., where there is a state-created lib-
erty or property interest at stake. See, e.g., Paul v. Davis, 424
U.S. 693, 710-12 (1976). Accordingly, Plaintiffs’ claims are
not barred on this ground, and we need not consider Defen-
dants’ arguments that Plaintiffs’ state law claims are “novel
and complex” under 28 U.S.C. § 1367(c).7

D. Plaintiffs’ Section 1983 Claims

[6] Defendants’ first substantive argument is that Plaintiffs
have not properly pled a claim under Section 1983, in that
they are not proper defendants for a suit. “To sustain an action
7
Defendants also suggest that the federal courts should “abstain” under
the “Abstention Doctrine.” They appear to confuse abstention with denial
of pendent jurisdiction under the “novel and complex” clause of 28 U.S.C.
§ 1367(c). If they meant abstention proper, they waived that argument
because they failed to raise abstention before the District Court. See Conn.
Gen. Life Ins. v. New Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir.
2003). Nor do we see any reason that the federal courts would abstain in
this situation. Pullman abstention is not appropriate because the driving
force behind each of Plaintiffs’ claims is a right guaranteed by the United
States Constitution, and state court clarification of state law would not
make a federal court ruling unnecessary. See R.R. Comm. of Tex. v. Pull-
man Co., 312 U.S. 496, 499-501 (1941).
11986 HYDRICK v. HUNTER
under section 1983, a plaintiff must show (1) that the conduct
complained of was committed by a person acting under color
of state law; and (2) that the conduct deprived the plaintiff of
a federal constitutional or statutory right.” Wood v. Ostrander,
879 F.2d 583, 587 (9th Cir. 1989).

There is no question that all Defendants were acting under
the color of California law when they engaged in the alleged
unconstitutional conduct. Defendants argue, instead, that their
conduct did not cause Plaintiffs any deprivation of their con-
stitutional or statutory rights.

“A person ‘subjects’ another to the deprivation of a consti-
tutional right, within the meaning of [§] 1983, if [that person]
does an affirmative act, participates in another’s affirmative
acts, or omits to perform an act which [that person] is legally
required to do that causes the deprivation of which complaint
is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.
1978). Indeed, the “requisite causal connection can be estab-
lished not only by some kind of direct personal participation
in the deprivation, but also by setting in motion a series of
acts by others which the actor knows or reasonably should
know would cause others to inflict the constitutional injury.”
Id. at 743-744.

In limited circumstances, a person can also be subject to
§ 1983 liability for the acts of others. Although there is no
pure respondeat superior liability under § 1983, a supervisor
is liable for the constitutional violations of subordinates “if
the supervisor participated in or directed the violations, or
knew of the violations and failed to act to prevent them.” Tay-
lor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

[7] Plaintiffs proceed on both of these theories: (a) that
Defendants created policies and procedures that violated
Plaintiffs’ constitutional rights; and (b) that Defendants were
willfully blind to constitutional violations committed by their
subordinates. Because Defendants were directors and policy-
 HYDRICK v. HUNTER 11987
makers for Atascadero State Hospital, we believe Plaintiffs
have sufficiently alleged that the constitutional violations they
suffered were “set in motion” by Defendants’ policy decisions
or, at the very least, that Defendants knew of these abuses and
demonstrated a deliberate indifference to the SVPs’ plight.

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

E. Defendants’ Qualified Immunity Defense

Defendants also argued that the district court erred when it
denied them qualified immunity. As Defendants have con-
ceded, qualified immunity is only an immunity from a suit for
damages, and does not provide immunity from suit for declar-
atory or injunctive relief. See Los Angeles Police Protective
League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993). Defen-
dants instead argue that they are entitled to qualified immu-
nity from all of Plaintiffs’ claims to the extent that Plaintiffs
seek monetary damages.

In analyzing Defendants’ qualified immunity defense, we
must determine, taking the facts in the light most favorable to
11988 HYDRICK v. HUNTER
Plaintiffs: (1) what right has been violated; (2) whether that
right was so “clearly established” at the time of the incident
that a reasonable official would have been aware that the con-
duct violated constitutional bounds; and (3) whether a reason-
able public official could have believed that the alleged
conduct was lawful. See Newell v. Sauser, 79 F.3d 115, 117
(9th Cir. 1996).

[9] In order to withstand Defendants’ claims of qualified
immunity, then, Plaintiffs must first allege a violation of a
right that was clearly established in 1998 — the time the
alleged constitutional violations first took place. See Anderson
v. Creighton, 483 U.S. 635, 639-40 (1987); Sorrels v. McKee,
290 F.3d 965, 970 (9th Cir. 2002). To defeat qualified immu-
nity, “the right allegedly violated must be defined at the
appropriate level of specificity before a court can determine
if it was clearly established.” Wilson v. Layne, 526 U.S. 603,
615 (1999).

But Plaintiffs need not establish that Defendants’ “behavior
had been previously declared unconstitutional.” Blueford v.
Prunty, 108 F.3d 251, 254 (9th Cir. 1997). In fact, “precedent
directly on point is not necessary to demonstrate a clearly
established right.” Id. at 255. Rather, “[i]f the only reasonable
conclusion from binding authority were that the disputed right
existed, even if no case had specifically so declared, [Defen-
dants] would be on notice of the right and [officials] would
not be qualifiedly immune if they acted to offend it.” Id. If the
occasion has not risen for our circuit to reach a question, we
may draw clearly established law from other circuits. Prison
Legal News v. Lehman, 397 F.3d 692, 701 (9th Cir. 2005); see
also Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir.
2000) (finding a violation of clearly established law where
there is “such a clear trend in the case law” that recognition
of the right is “only a matter of time”).

[10] Before we consider Plaintiffs’ claims individually to
determine whether they were clearly established, we address
 HYDRICK v. HUNTER 11989
a threshold question that applies to Plaintiffs’ claims more
generally. Defendants argue, as a broad proposition, that dam-
ages are not appropriate in this suit because the law applicable
to SVPs is still evolving. We acknowledge that this suit is
unique, in that it is one of the first widespread class actions
to challenge the conditions of detention for civilly confined
SVPs. Nonetheless, we believe Defendants may have trans-
gressed some clearly established boundaries, or at least, that
their claims cannot be dismissed at this stage of litigation.
First, civilly detained persons must be afforded “more consid-
erate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish.”
Youngberg v. Romeo, 457 U.S. 307, 322 (1982); see also
Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000). It fol-
lows logically, then, that the rights afforded prisoners set a
floor for those that must be afforded SVPs, and that where
Defendants violate a standard that is clearly established in the
prison context, the violation is clearly established under the
SVP scheme.8 Second, where there is a clearly established
body of law that applies to all civilly committed persons,
there is no reason that the law should not apply to SVPs as
well. For, as we have previously held:

The state cannot have it both ways. If confinement
of a sexually violent predator is civil for the pur-
poses of evaluation under the Ex Post Facto clause,
that confinement is civil for the purposes of defining
the rights to which the detainee is entitled while con-
fined. Civil status means civil status, with all the . . .
rights that accompany it.
8
Contrary to our dissenting colleague’s analysis, we see this as a very
minor analytical step. The State detains prisoners for the purpose of pun-
ishment. It detains SVPs for the purpose of treatment, and its treatment has
no punitive element to it. It seems entirely unremarkable, then, to say that
the State cannot treat SVPs worse than prisoners. The “only reasonable
conclusion from binding authority” is that the conditions of confinement
for SVPs cannot be more harsh than those under which prisoners are
detained. Blueford, 108 F.3d at 255.
11990 HYDRICK v. HUNTER
Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). Thus,
there are two bodies of law from which we might draw
“clearly established” law for qualified immunity purposes:
first, where the SVPs claim a violation of a right that is
clearly established even in the prison context, and second,
where the SVPs claim a violation of a right that is clearly
established for all civilly detained persons.

At the same time, we acknowledge at the outset that it is
not always clearly established how much more expansive the
rights of civilly detained persons are than those of criminally
detained persons. As discussed below, the rights afforded civ-
illy detained persons are flexible enough to take into account
the circumstances of detention. The law generally requires a
careful balancing of the rights of individuals who are detained
for treatment, not punishment, against the state’s interests in
institutional security and the safety of those housed at the
facility. See, e.g., Youngberg, 457 U.S. at 319-322. In weigh-
ing those interests, it cannot be ignored that, unlike the plain-
tiff in Youngberg who was civilly committed because of
mental infirmities, SVPs have been civilly committed subse-
quent to criminal convictions and have been adjudged to pose
a danger to the health and safety of others. Therefore, the
rights of SVPs may not necessarily be coexistensive with
those of all other civilly detained persons.9
9
We thus agree with our dissenting colleague that context is critical in
constitutional claims. Nonetheless, this admission — that it is not clear
how much more extensive the rights of SVPs are — does not inexorably
lead to the conclusion that there can be no violation of clearly established
law. It may not be clear exactly what due process rights are to be afforded
SVPs, but surely it is clear that certain actions — forcing Plaintiffs to live
in squalid conditions, turning a blind eye to physical attacks against SVPs,
and forcing SVPs to take medication as punishment or in retaliation for fil-
ing a lawsuit or for refusing to speak during treatment sessions — trans-
gressed the boundary. Surely it would not require “law train[ing]” or
clairvoyance to recognize that these actions, as alleged by Plaintiffs, do
not comport with due process.
 HYDRICK v. HUNTER 11991
With these threshold issues in mind, we review each of
Plaintiffs’ claims to determine whether Plaintiffs have suffi-
ciently pleaded a violation of clearly established rights.

1. Plaintiffs’ First and Fourteenth Amendment
Rights

Plaintiffs contend that Defendants have retaliated against
them for filing lawsuits regarding conditions at Atascadero
State Hospital. Specifically, Plaintiffs claim that, as a result of
preparing this suit and other complaints about the conditions
at Atascadero, Plaintiffs have been subjected to access-level
reductions, harassment by Atascadero personnel, excessive
room search and seizures of property, and that they have been
denied access to the library.

[11] It is clear that the Fourteenth Amendment right to
access the courts survives detention. Bounds v. Smith, 430
U.S. 817, 821-22 (1977) (“It is now established beyond doubt
that prisoners have a constitutional right of access to the
courts.”); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir.
1995) (holding that “right of access [to the courts] is guaran-
teed to people institutionalized in a state mental hospital
regardless of whether they are civilly committed after crimi-
nal proceedings or civilly committed on grounds of danger-
ousness”). Similarly, punishment in retaliation for exercising
one’s right to access the courts may constitute a First Amend-
ment violation. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th
Cir. 1985). We have held that the prohibition against retalia-
tory punishment is “ ‘clearly established law’ in the Ninth
Circuit, for qualified immunity purposes.” Pratt v. Rowland,
65 F.3d 802, 806 & n.4 (9th Cir. 1995). Given the facts alleged,10
10
We note that Plaintiffs’ original pro se complaint contains particularly
persuasive narratives on this issue. Specifically, it details how Atascadero
personnel responded when they caught wind of this suit, altering schedules
so that the coordinators of this action would not be able to work together,
telling Plaintiffs that their meeting in the library was an “illegal assem-
bly,” limiting law library time, scheduling mandatory group sessions dur-
ing the SVPs’ library time, and refusing to give SVPs drafting paper
because it was “only for the mental patients to draft appeals.”
11992 HYDRICK v. HUNTER
we believe Plaintiffs may be able to prove that they have been
punished in retaliation for the exercise of their First and Four-
teenth Amendment rights to file grievances about the condi-
tions of their confinement. Accordingly, their claims should
not be dismissed at the Rule 12(b)(6) stage.

Plaintiffs also allege that Defendants force them to partici-
pate in treatment that violates their First Amendment rights.
Specifically, Plaintiffs allege that Defendants bar SVPs from
progressing beyond Phase One until they sign a contract
admitting that they have an illness and need treatment. The
decision to sign the contract is the ultimate “Catch-22”: dur-
ing re-commitment hearings, the contract is used against those
who sign it as an admission of illness, and used against those
who do not sign it as a refusal to be amenable to treatment.
Plaintiffs also allege that SVPs who attend but do not vocally
participate in group treatment sessions are found by Defen-
dants to be “not progressing”; accordingly, these SVPs do not
advance to higher levels and are subjected to access level
restrictions. Plaintiffs argue that they have a First Amendment
right to refrain from saying that they have an illness and to
refuse to participate in treatment, and that Defendants may not
punish them for exercising their rights.

We note that there may be a First Amendment right not to
participate in treatment, a right respected by the language of
California’s SVP Act, if not in its implementation. Specifi-
cally, the SVP Act directs:

Amenability to treatment is not required for a finding
that any person is a person described in Section
6600, nor is it required for treatment of that person.
Treatment does not mean that the treatment be suc-
cessful or potentially successful, nor does it mean
that the person must recognize his or her problem
and willingly participate in the treatment program.

Cal. Welf. & Inst. Code § 6606(b) (emphasis added). While
it may be in Plaintiffs’ interest to participate in treatment, and
 HYDRICK v. HUNTER 11993
the State may create incentives to encourage such participa-
tion, it is clear that “[t]he right of freedom of thought and of
religion as guaranteed by the Constitution against State action
includes both the right to speak freely and the right to refrain
from speaking at all.” W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 645 (1943) (Murphy, J., concurring). As is the
case with prisoners, civilly committed persons certainly retain
those First Amendment rights not inherently inconsistent with
the circumstances of their detention. See Turner v. Safley, 482
U.S. 78, 89 (1987). The language of the above statute strongly
suggests that refusal to recognize one’s “illness” or affirma-
tively participate in treatment is not inherently inconsistent
with the purposes for which SVPs are detained.

Granted, Plaintiffs are not actually forced to speak. But in
this case, the stakes for refusing to speak are so high that
Plaintiffs’ participation in treatment is almost compulsory.
Indeed, an SVP who exercised his right not to admit his ill-
ness could be detained indefinitely: he would never advance
past Phase One and his refusal could be used against him at
his re-commitment hearing as a sign that he was not suffi-
ciently “rehabilitated” to re-enter society.

Several inmates who are criminally detained raised analo-
gous arguments, on Fifth Amendment grounds, that programs
that force sexual offenders to admit and discuss those offenses
violate their rights against self-incrimination. In McKune v.
Lile, 536 U.S. 24 (2002), the Supreme Court found that a pro-
gram did not violate the Fifth Amendment where the program
“did not extend his term of incarceration . . . [or] affect his eli-
gibility for good-time credits or parole,” and the only adverse
consequence was that he was moved to the less desirable non-
treatment area of the prison. Id. at 38-39.

But McKune explicitly left open the question of whether a
greater deprivation of liberty might run afoul of the Constitu-
tion by essentially compelling detainees to incriminate them-
selves. At least one court, reading McKune, allowed an inmate
11994 HYDRICK v. HUNTER
to proceed past pre-trial motions on First Amendment grounds
where the right to parole was conditioned on participation in
treatment. See Wolfe v. Penn. Dep’t of Corrections, 334 F.
Supp. 2d 762, (E.D. Pa. 2004). Similarly, in this case, where
the stakes for participation in treatment are so high, the depri-
vations involved in refusing to participate in treatment may
rise to the level of compulsion that might violate the First
Amendment.

[12] The question at this stage, however, is not whether the
right exists, but whether such a right is clearly established
under the First Amendment. Given the volatility of the law on
this point, we cannot say that it is. The challenged programs
are facially related to the purposes for which the SVPs are
detained, and while SVPs may have a right to refuse to partic-
ipate in such treatment, it is not yet clear the extent to which
the State can condition privileges or advancement on partici-
pation in such treatment. As such, we believe these claims
may be more appropriately considered for declaratory or
injunctive relief.

[13] Thus, we hold that Plaintiffs’ First Amendment claims
were based on clearly established law insofar as they chal-
lenge action in retaliation for filing lawsuits. To the extent
that the claim relies on a First Amendment right not to partici-
pate in treatment sessions, Defendants have qualified immu-
nity, because the law on this point is not clearly established.

2. Plaintiffs’ Fourth Amendment Rights

Plaintiffs allege that Defendants’ policies and practices
subject Plaintiffs to unreasonable searches, seizures, and
unnecessary use of force. According to Plaintiffs, they are
subjected to public strip searches; to retaliatory searches of
their possessions; and to arbitrary seizure of their personal
belongings upon arrival at Atascadero. SVPs are also placed
in shackles during transport to Atascadero and during visits
from family and friends. When they refuse to participate in
 HYDRICK v. HUNTER 11995
treatment, they are subjected to “red light alarms” even if they
do not post any physical risk.11 Moreover, they are force-
medicated as a means of intimidation and punishment, and for
the convenience of staff.

Accepting these allegations as true, we believe Plaintiffs
may be able to state a “clearly established” violation of their
Fourth Amendment rights, and thus, the claims are not appro-
priate for dismissal at the Rule 12(b)(6) stage. The watchword
of the Fourth Amendment in every context is reasonableness.
As this court held in Thompson v. Souza, 111 F.3d 694 (9th
Cir. 1997), “the Fourth Amendment right to be secure against
unreasonable searches and seizures ‘extends to incarcerated
prisoners.’ ” Id. at 699. Thus, this protection certainly extends
to SVPs.

[14] Of course, “the reasonableness of a particular search
[or seizure] is determined by reference to the [detention] con-
text.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.
1988). As with any detained person, there are concerns that
mirror those that arise in the prison context: i.e., “the safety
and security of guards and others in the facility, order within
the facility and the efficiency of the facility’s operations.”
Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). But
even so, qualified immunity does not protect a search or sei-
zure that is arbitrary, retaliatory, or clearly exceeds the legiti-
mate purpose of detention.

[15] Under this framework, we cannot dismiss Plaintiffs’
claim at this stage. The “reasonableness” of a search or sei-
zure is a fact-intensive inquiry that cannot be determined at
this stage. See, e.g., Thompson, 111 F.3d 694 (9th Cir. 1997)
(evaluating the reasonableness of a strip search based on the
manner and scope of the search, the place, and the justifica-
tion). It is impossible to make such a fact-specific determina-
11
As explained in the complaint, a “red light alarm” is when ten to
twenty staff members surround and restrain the patient.
11996 HYDRICK v. HUNTER
tion when the precise circumstances of the searches or
seizures are not before the court and when the Defendants
have not yet had a chance to explain their justification for the
alleged searches or seizures. We cannot say, then, that Plain-
tiffs cannot possibly state a “clearly established violation”
based on any facts consistent with their pleadings.12 There-
fore, Defendants do not have a right to qualified immunity
under Federal Rule of Civil Procedure 12(b)(6).

3. Double Jeopardy and Ex Post Facto Clauses

Plaintiffs allege violations of the double jeopardy clause
and ex post facto clause. While Plaintiffs concede that these
two clauses have punishment as an essential prerequisite, and
that the SVP Act is a civil detention statute, they claim that
the SVP Act is punitive as applied to them. As such, they
argue that their double jeopardy and ex post facto claims are
not barred.

[16] In upholding a law similar to California’s SVP Act,
the Supreme Court held that “[a]n Act, found to be civil, can-
not be deemed punitive ‘as applied’ to a single individual in
violation of the Double Jeopardy and Ex Post Facto Clauses
and provide cause for release.” Seling v. Young, 531 U.S. 250,
267 (2001). Similarly, the California Supreme Court stressed
the civil nature of a sexually violent predator commitment and
rejected challenges to California’s SVP Act based on the Ex
Post Facto and Double Jeopardy clauses of the federal consti-
tution. See Hubbart v. Superior Court, 19 Cal. 4th 1138, 1171
(Cal. 1999). We believe Plaintiffs’ claims based on the Dou-
12
The excessive force claims under the Fourth and Fourteenth Amend-
ment — e.g., forced medication, excessive use of red light alarms, and use
of shackles — largely duplicate Plaintiffs’ excessive force claims under
the Eighth and Fourteenth Amendments, and their claims for Substantive
Due Process. We will consider all these claims together, below.
 HYDRICK v. HUNTER 11997
ble Jeopardy and Ex Post Facto Clauses of the federal consti-
tution are foreclosed.13

[17] Plaintiffs argue that Seling does not control because
they are not “seeking release” as was the habeas petitioner in
Seling. They raise a purely artificial difference. The court in
Seling made it abundantly clear that the civil nature of the
SVP scheme “cannot be altered based merely on the vagaries
in implementation of the authorizing statute.” Id. at 263.
Accordingly, we find that the civil nature of California’s SVP
Act is not altered because of the remedy sought and we
reverse the district court’s order denying Defendants’ motion
to dismiss as to the Ex Post Facto and Double Jeopardy
Clause related claims.

4. Plaintiffs’ Eighth and Fourteenth Amendment
Claims

[18] Plaintiffs allege in their complaint that the “restrictive
and denigrating conditions” at the Atascadero State Hospital
constitute cruel and unusual punishment in violation of the
Eighth Amendment. The Eighth Amendment has, as an essen-
tial prerequisite, the right to punish. DeShaney v. Winnebago
County Dept. of Soc. Servs., 489 U.S. 189, 199 n.6 (“The
State does not acquire the power to punish with which the
Eighth Amendment is concerned until after it has secured a
formal adjudication of guilt in accordance with due process of
law.”). Here, SVPs are detained for the purpose of treatment,
and the state’s power to punish them expires at the end of
their sentence. Accordingly, the Eighth Amendment is not the
13
Seling did not, however, alter our authority to consider implementa-
tion of the SVP Act on Plaintiffs’ other claims. See Seling, 531 U.S. at 266
(“This case gives us no occasion to consider how the civil nature of a con-
finement scheme relates to other constitutional challenges, such as due
process, or to consider the extent to which a court may look to actual con-
ditions of confinement and implementation of the statute to determine in
the first instance whether a confinement scheme is civil in nature.”).
11998 HYDRICK v. HUNTER
proper vehicle to challenge the conditions of civil commit-
ment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).

[19] The thrust of Plaintiffs’ claim here is that because the
conditions of confinement amount to punishment, they should
be permitted to argue that this “punishment” is cruel and
unusual. Once again, this “punitive as applied” argument is
foreclosed by Seling. Therefore, we find that the district court
erred when it failed to dismiss the Eighth Amendment claim
against Defendants.

Of course, this is a small victory for Defendants, because
the same claims for inhumane treatment and failure to protect
may be raised under the Fourteenth Amendment. The stan-
dard applicable to SVPs under the Fourteenth Amendment are
at least coextensive with that applicable to prisoners under the
Eighth Amendment. See, e.g., Munoz v. Kolender, 208 F.
Supp. 2d 1125 (S.D. Cal. 2002) (applying Fourteenth Amend-
ment standards to SVPs because “comparable standards apply
to both prisoners’ Eighth Amendment cruel and unusual pun-
ishment and Fourteenth Amendment substantive due process
analyses, with Fourteenth Amendment analysis borrowing
from Eighth Amendment standards.”); Frost v. Agnos, 152
F.3d 1124, 1128 (9th Cir. 1998) (applying Eighth Amendment
standards to evaluate pretrial detainees’ Fourteenth Amend-
ment claims). Moreover, the Eighth Amendment provides too
little protection for those whom the state cannot punish. See
Jones v. Blanas, 393 F.3d 918, 931-34 (9th Cir. 2004);
Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001). Plaintiffs
apparently recognize this, because their Eighth Amendment
claims largely duplicate those raised under the substantive due
process clause of the Fourteenth Amendment. Accordingly,
we consider, below, under the Fourteenth Amendment Plain-
tiffs’ allegations that Defendants’ actions violate their due
process rights.
 HYDRICK v. HUNTER 11999
5. Plaintiffs’ Procedural Due Process Rights Under
the Fourteenth Amendment

Plaintiffs raise a number of procedural due process viola-
tions against Defendants. Plaintiffs allege that Defendants
force them to participate in the five-phase treatment program
at Atascadero; force them to take medication in non-
emergency situations; and subject them to privilege reduc-
tions, access level reductions, and reclassifications. Plaintiffs
allege that these deprivations occur without adequate notice of
or opportunity to respond to accusations of alleged sanction-
able conduct.

[20] The Fourteenth Amendment requires that no person be
deprived of life, liberty, or property without due process of
law. That is, even if Defendants may deprive SVPs of certain
privileges, those deprivations may not be carried out without
notice and an opportunity to be heard. Defendants do not
challenge, at least at this stage, that Plaintiffs were deprived
of certain privileges, or that these deprivations did not carry
with them the attendant due process required under the Four-
teenth Amendment. Rather, Defendants argue that Plaintiffs
have not adequately pleaded the loss of an established liberty
or property interest when they are force-medicated, when
their access-levels are reduced, or when they lose other privi-
leges.

[21] We disagree. Convicted prisoners, pretrial detainees,
and parolees all possess a liberty interest in avoiding the
unwanted administrations of antipsychotic drugs. See, e.g.,
Washington v. Harper, 494 U.S. at 221-22 (holding that pris-
oners possess “a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment” and identify-
ing procedures which comported with due process). Thus, at
a minimum, an individual civilly committed under Califor-
nia’s SVP Act has a right to procedural due process before
being force-medicated in non-emergency situations.
12000 HYDRICK v. HUNTER
Next, Plaintiffs allege that reduction of their access levels
decreases, or in some cases eliminates, the opportunity to
move around the facility without escorts and that it affects
their right to other privileges. The reduction of an SVP’s
access level is similar to the transfer of prisoners from the
general prison population to administrative segregation. Such
a transfer may deprive the prisoner of a state-created liberty
interest. See Sandin v. Connor, 515 U.S. 472, 484 (1995)
(holding that a state-created liberty interest in one’s classifica-
tion may exist where classification imposes “atypical and sig-
nificant hardship”); see also Barnett v. Centoni, 31 F.3d 813,
815-16 (9th Cir. 1994) (holding that a prison inmate was
deprived of liberty and property because he was reclassified
thereby losing certain privileges). Thus, Plaintiffs may have
a liberty interest in their access levels and classifications that
affect their privileges.

[22] In sum, it is clearly established that an inmate has a
state-created liberty interest and a right to be free from restric-
tions that “impose[ ] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 483-84. Where Defendants have trans-
gressed a line clearly established even in the prison context,
we have no trouble deeming the line clearly established for
SVPs. Therefore, we hold that Plaintiffs’ Fourteenth Amend-
ment Procedural Due Process claims are based on clearly
established rights.

6. Plaintiffs’ Fourteenth Amendment Substantive
Due Process Claims

Plaintiffs contend that Defendants have violated their sub-
stantive due process rights because Defendants have failed to
protect them from the abuse of other detainees and employ-
ees. Their claims can be broken down into three general cate-
gories: (a) claims that Defendants failed to protect Plaintiffs
from the abuses of other persons detained at Atascadero; (b)
claims that Defendants failed to provide constitutionally ade-
 HYDRICK v. HUNTER 12001
quate conditions of detention; and (c) claims that Defendants
use excessive force against them.14

First, Plaintiffs claim that Defendants have turned a blind
eye to the conduct of other persons detained at Atascadero
State Hospital. Specifically, Plaintiffs allege that they are
intentionally exposed to feces, urine, vomit, spit, and blood in
Atascadero’s courtyards, bathrooms, hallways, dining rooms,
and gymnasium, and that other detainees contaminate their
food with spit and other unsanitary taint. Plaintiffs allege that
they are subjected to verbal harassment, physical abuse, and
sexual assaults by other patients at the Hospital, and indeed
that they are targeted because they are sex offenders.

The patient population at Atascadero State Hospital com-
prises males who are civilly or penally committed. The indi-
viduals committed at the Hospital are confined under a variety
of statutes. See Cal. Penal Code § 1026 (covering patients
“not guilty by reason of insanity”); Cal. Penal Code § 1370
(covering patients “incompetent to stand trial”); Cal. Penal
Code §§ 2962, 2964 (covering “mentally disordered offend-
ers” serving their parole time); Cal. Welfare and Institutions
Code § 6316 (covering “mentally disordered sex offenders”);
Cal. Penal Code § 2684 (covering mentally ill prisoners trans-
ferred to Atascadero State Hospital for psychiatric stabiliza-
tion). According to Plaintiffs, their forced integration as
openly labeled “sexually violent predators” has subjected
them to verbal harassment, physical abuse, and sexual assaults
from the rest of the Atascadero population.

[23] Plaintiffs’ right to be protected and confined in a safe
institution are clearly established. See Youngberg, 457 U.S. at
319-22 (stating that individuals who are involuntarily civilly
committed have constitutionally protected rights under the
14
Here we consider Plaintiffs’ substantive due process allegations from
their Second Alleged Claim, their Fifth Alleged Claim and their Seventh
Alleged Claim.
12002 HYDRICK v. HUNTER
Due Process Clause to reasonably safe conditions of confine-
ment and freedom from unreasonable bodily restraints). The
right is clearly established for civilly committed persons and
prisoners alike. See Farmer v. Brennan, 511 U.S. 825, 833
(1994) (“[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.” (internal cita-
tions omitted)); Neely v. Feinstein, 50 F.3d 1502, 1508 (9th
Cir. 1995) (finding “clearly established” that patients have a
“constitutional right to be safe in the state institutions to
which they are committed”). Assuming Plaintiffs can prove
the allegations in their complaint and Defendants’ blindness
to such conditions in Atascadero, qualified immunity would
not be appropriate on these claims.

[24] Second, Plaintiffs allege that the conditions of confine-
ment are constitutionally inadequate, that they are forced to
live in squalid conditions that are inhumane and pose a seri-
ous health risk. Plaintiffs have a clearly established right not
to be exposed to such unsanitary conditions. See Anderson v.
County of Kern, 45 F.3d 1310, 1314-15 (9th Cir. 1995) (col-
lecting cases in prison context); Youngberg, 457 U.S. at 315-
16 (establishing a right to “personal security” for involuntarily
committed persons).15 Given the allegations in the Second
Amended Complaint, Plaintiffs’ claims as to the unsanitary
and unsafe conditions of confinement cannot be dismissed
under Federal Rule of Civil Procedure 12(b)(6).

[25] Plaintiffs also allege several claims of excessive force,
i.e., that (a) “red light alarms” are used when Plaintiffs orally
refuse to participate in treatment, even if they pose no threat
of physical violence; (b) that shackles are used during trans-
portation and during visits with family and friends; and, more
15
In the prison context, claims of unsanitary conditions are evaluated
under the Eighth Amendment. See Anderson, 45 F.3d at 1314. Although
the Eighth Amendment does not apply here, similar standards may apply
to SVPs under the Fourteenth Amendment. See Munoz v. Kolender, 208
F. Supp. 2d 1125, 1146 (S.D. Cal. 2002).
 HYDRICK v. HUNTER 12003
generally, (c) that Plaintiffs are subjected to “excessive pun-
ishment . . . [and] excessive use of force and physical
restraints.” It is well-established that detained persons have a
right to be free from excessive force. While excessive force
claims by prisoners are reviewed under the Eighth Amend-
ment’s malicious and sadistic standard, Hudson v. McMillian,
503 U.S. 1 (1992), the more generous Fourteenth Amendment
standard applies to those who are civilly confined. As we pre-
viously stated:

If confinement of a sexually violent predator is civil
for the purposes of evaluation under the Ex Post
Facto clause, that confinement is civil for the pur-
poses of defining the rights to which the detainee is
entitled while confined [in a treatment facility]. Civil
status means civil status, with all the Fourteenth
Amendment rights that accompany it.

Jones, 393 F.3d at 933.

The Fourteenth Amendment requires that civilly committed
persons not be subjected to conditions that amount to punish-
ment, Bell, 441 U.S. at 536, within the bounds of professional
discretion, Youngberg, 457 U.S. at 321-22. Moreover, the
“due process requires that the conditions and duration of con-
finement [for civilly confined SVPs] bear some reasonable
relation to the purpose for which persons are committed.” Sel-
ing, 531 U.S. at 265; see also Jones, 393 F.3d at 931. While
the nature of an SVP’s confinement may factor in this balance
of what is reasonable, it is clearly established that the substan-
tive due process protections of the Fourteenth Amendment
apply to SVPs. See Andrews v. Neer, 253 F.3d 1052, 1061
(8th Cir. 2001) (applying the Fourteenth Amendment’s “ob-
jective reasonableness” standard to excessive force claims
brought by civilly committed SVPs).16
16
While Jones, Neer, and Seling are more recent cases, they do little
more than restate the contours of law clearly established in Youngberg v.
12004 HYDRICK v. HUNTER
[26] We also reiterate that SVPs must, at a minimum, be
afforded the rights afforded prisoners confined in a penal
institution. Thus, the Eighth Amendment still provides a floor
for the level of protection that SVPs must receive under the
Fourteenth Amendment, and because the contours of the
Eighth Amendment are more defined, Eighth Amendment
jurisprudence may provide helpful guidance as to the stan-
dards to be applied. Under the Eighth Amendment, the unnec-
essary and wanton force standard takes into account such
facts as the need for the application of force, the relationship
between the need and the amount of force used, the threat per-
ceived by the officer, any effort to temper the severity of the
forceful response, and the extent of the injury inflicted, and
whether the force was applied for a legitimate purpose. Hud-
son v. McMillian, 503 U.S. 1, 7 (1992). If Plaintiffs allege
conduct that sinks below those protections afforded prisoners
under the Eighth Amendment, then their claim certainly states
a violation of their rights under the Fourteenth Amendment.

[27] Plaintiffs have alleged that force is used in retaliation
for exercising legitimate rights and that the amount of force
used is often a gross overreaction to the situation. Such use of
force, if proved, is not reasonable and failure to curtail such
abuses cannot be said to be within Defendants’ professional
discretion. We affirm, then, the district court’s denial of the
motion to dismiss on these grounds.

On each of these three grounds — failure to protect, inade-
quate conditions of confinement, and excessive force — we
believe that Plaintiffs may be able to state a “clearly estab-
lished” Fourteenth Amendment Substantive Due Process vio-

Romeo, a 1982 case, and Bell v. Wolfish, a 1979 case. Seling essentially
restates the Youngberg test, and Jones does little more than connect the
line between Youngberg and SVPs based on California’s argument that the
statute should be construed as a civil confinement statute. We believe a
reasonable official reading Youngberg would have sufficient notice that
they would be held to Youngberg’s standards of due process.
 HYDRICK v. HUNTER 12005
lation, and we cannot, at the Federal Rule 12(b)(6) stage,
dismiss these substantive due process claims.

7. Plaintiffs’ Equal Protection Rights Under the
Fourteenth Amendment

According to Plaintiffs, they are being treated more restric-
tively than other civilly committed patients. They allege that
their conditions are more punitive than those under which all
other civilly committed persons are held. For one example,
they allege that other civilly-committed persons are given pri-
ority in hiring for remunerative positions.

[28] Even though Plaintiffs do not constitute a suspect
class, heightened scrutiny may be required where fundamental
interests are at issue. See Harper v. Va. State Bd. of Elections,
383 U.S. 663, 670 (1966); Police Dept of City of Chicago v.
Mosley, 408 U.S. 92 (1972). This court upheld application of
a “heightened scrutiny standard” when evaluating an equal
protection violation under Washington State’s Sexually Vio-
lent Predator Statute. See Young v. Weston, 176 F.3d 1196,
1201 (9th Cir. 1999), rev’d on other grounds, Seling, 531 U.S.
250. While Young was decided in 1999, it rested on a firmly
established principle in existence at the time of events in
question: that heightened scrutiny will be applied where a
fundamental liberty interest is at stake. See Skinner v. Okla-
homa, 316 U.S. 535, 541 (1942). Plaintiffs may be able to
claim violations of several clearly established fundamental
rights: a liberty interest in freedom from bodily restraint and
personal security, Youngberg, 457 U.S. at 315-316, and a fun-
damental right to access the courts, as described below.
Accordingly, we agree with Plaintiffs that heightened scrutiny
is the standard for equal protection claims implicating these
fundamental rights. And we further observe that Plaintiffs, in
line with their allegations, may be able to show that the differ-
ential treatment between them and other civilly committed
persons violates equal protection because such treatment does
not meet heightened scrutiny.
12006 HYDRICK v. HUNTER
[29] At the same time, we cannot say that it is firmly estab-
lished that every condition of an SVP’s confinement is subject
to heightened scrutiny. In the prison setting, we have made
clear that prison officials need latitude in deciding how to run
their prison, and we have refused to subject each classification
drawn by prison officials to heightened scrutiny. Rather, a
prisoner cannot challenge the conditions of his confinement
on equal protection grounds unless the discrimination against
him is irrational or arbitrary. See McGinnis v. Royster, 410
U.S. 263, 276 (1973). That is, in so far as Plaintiffs’ claims
rely on classifications not related to fundamental liberty inter-
ests, Defendants will have qualified immunity unless there is
no rational basis for the classification.

[30] Even under the rational basis standard, we cannot dis-
miss Plaintiffs’ equal protection claims at this stage. Plain-
tiffs’ pleadings raise several questionable classifications. For
example, it seems arbitrary that SVPs should be treated more
harshly that other civilly committed persons in job placement
and privileges. Based on the pleadings, we believe that Plain-
tiffs may be able to prove a violation of clearly established
law congruent with the facts alleged. Admittedly, at this stage,
Defendants have not fully developed and presented the ratio-
nale for their actions and there may be differences between
SVPs and other civilly committed persons that warrant differ-
ential treatment. But we leave it to the district court, on a
more full factual record, to consider whether the classifica-
tions Plaintiffs present are irrational and arbitrary.

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

Plaintiffs claim that they cannot privately correspond with
counsel, have telephone conversations with counsel, and are
otherwise hindered in their ability to prepare for their proba-
ble cause and commitment hearings. According to Plaintiffs,
 HYDRICK v. HUNTER 12007
“[t]his inability to prepare for upcoming hearings would
clearly hinder Plaintiffs’ access to the courts and counsel.”

[31] Plaintiffs have a statutory right to counsel in probable
cause proceedings and in commitment hearings. Cal. Welfare
& Institutions Code §§ 6602, 6603, 6605(d). To protect the
right to counsel, “a [detainee] must be given a reasonable
opportunity to employ and consult with counsel; otherwise,
the right to be heard by counsel would be of little worth.”
Chandler v. Fretag, 348 U.S. 3, 10 (1954). While the Sixth
Amendment, by its express language, protects those in crimi-
nal proceedings, the Fourteenth Amendment protects all
detainees against governmental interference in their right of
access to courts. See Procunier v. Martinez, 416 U.S. 396,
419-20 (1974) (overruled on other grounds); Cornett v. Dono-
van, 51 F.3d 894, 897 & n.4 (9th Cir. 1995). The right of
access to courts has been found to encompass the right to talk
in person and on the telephone with counsel in confidential
settings, Procunier, 416 U.S. at 419; Ching v. Lewis, 895 F.2d
608, 609 (9th Cir. 1990), and to use available law library
resources, Kennan v. Hall, 3 F.3d 1083 (1996), subject to
legitimate restrictions related to the purpose and circum-
stances of detention. See Turner v. Safley, 482 U.S. 78, 89
(1987). Where such rights have been upheld in the prison con-
text, there is no question that SVPs must be afforded rights
that are at least as broad.

[32] Such a fact specific inquiry can hardly be undertaken
at this point, when it is not clear what Defendants have done
to impede access to the courts, or why they have done so, or
how the Defendants’ actions have affected Plaintiffs’ right of
access. We believe, nonetheless, that Plaintiffs may be able to
state a violation of clearly established law congruent with
their allegations and we affirm the district court’s order deny-
ing Defendants’ Rule 12(b)(6) motion to dismiss as to Plain-
tiffs’ Tenth claim based on access to courts.
12008 HYDRICK v. HUNTER
9. Plaintiffs’ Right to Privacy under the Fourteenth
Amendment

[33] Plaintiffs allege that Defendants’ policies do not allow
for privacy when showering, sleeping, using the toilets or par-
ticipating in therapy sessions. It is clearly established that the
Fourteenth Amendment protects a sphere of privacy, and the
most “basic subject of privacy . . . the naked body.” Grummett
v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985). While the cir-
cumstances of institutional life demand that privacy be lim-
ited, it is clearly established that gratuitous invasions of
privacy violate the Fourteenth Amendment. Id. Once again,
we reach a highly factual inquiry where the facts are not fully
developed: in Grummett, for example, we considered the gen-
der of those prison officials who viewed inmates, the angle
and duration of viewing, and the steps the prison had taken to
minimize invasions of privacy. Id. at 494-95. Such facts are
simply not available to us at this stage of proceedings.17 We
believe, nonetheless, that Plaintiffs may possibly be able to
state a violation of clearly established law congruent with
their allegations, and as such we will not dismiss their claim
under Federal Rule of Civil Procedure 12(b)(6).

***

In sum, we affirm the district court’s decision to deny qual-
ified immunity on Plaintiffs’ first, second, sixth, seventh,
eighth, ninth, and tenth causes of action to the extent noted
above. We reverse and hold that Defendants have qualified
immunity from suit on Plaintiffs’ Ex Post Facto, Double Jeop-
ardy, and Eighth Amendment claims.
17
Moreover, we note that it is not, as Defendants hinted in their briefs
to this court, the burden of the SVPs to show that there is no compelling
justification for the regulations, but rather the burden of the State to show
that there is such a justification. See Walker v. Sumner, 917 F.2d 382, 385-
87 (9th Cir. 1990).
 HYDRICK v. HUNTER 12009
F. Defendants’ Belief That Their Conduct Was Lawful
Was Not Objectively Reasonable

[34] Even if Plaintiffs have alleged violations of a clearly
established right, a government official is entitled to qualified
immunity if he or she “could . . . have reasonably but mis-
takenly believed that his or her conduct did not violate a
clearly established constitutional right.” Jackson v. City of
Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see also Alford
v. Haner, 333 F.3d 972, 977 (9th Cir. 2003). This is a limited
exception, however: if the law is clearly established, the
immunity defense “ordinarily should fail, since a reasonably
competent public official should know the law governing [the
official’s] conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-
19 (1982).

[35] Whether Defendants’ conduct was reasonable involves
a factual analysis of the circumstances surrounding Defen-
dants’ actions and a determination of whether a reasonable
official similarly situated would have been aware that his/her
actions violated the law, an inquiry difficult to conduct at this
stage. Based on the facts in front of us, however, we do not
believe Defendants can claim that their conduct was objec-
tively reasonable. Again, Defendants argue that the volatile
nature of the law surrounding SVPs entitles them to escape
liability entirely. We do not adhere to the theory that “every
dog is entitled to one bite.” Defendants could not have been
so completely in the dark about the standards that would
apply to their conduct as it related to SVPs. As explained
above, SVPs are not entirely dissimilar from other groups of
civilly committed persons. Moreover, Plaintiffs’ complaint
alleges practices that would be unconstitutional if directed at
any prisoner. Accordingly, Defendants cannot escape liability
based on a “reasonable but mistaken” belief about the consti-
tutionality of their conduct.

CONCLUSION

For the foregoing reasons, we AFFIRM in part and
REVERSE in part the district court’s order denying Defen-
12010 HYDRICK v. HUNTER
dants’ second motion to dismiss under Rule 12(b)(6). Each
side to bear its own costs.

TROTT, Circuit Judge, concurring in part and dissenting in
part:

I

My disagreement with my colleagues is limited to one criti-
cal issue. We agree that plaintiffs cannot seek damages in this
lawsuit against state officials in their official capacities, and
that plaintiffs cannot seek damages from the State either. So,
what is left where the officials are concerned? A lawsuit
against them personally for acts and omissions alleged to have
been taken in the discharge of their official duties. This is a
mistake, and it is here that I part company.

On this record, and under these circumstances, I conclude,
with all respect to my colleagues, that these officials as indi-
viduals are clearly entitled to qualified immunity against both
suit and damages — now, not later. In my view, the particu-
lars and the contours of the alleged constitutional rights upon
which the plaintiffs rely were not so clearly established at the
times under scrutiny and at the level of specificity required
such that a reasonable official hired by the state to cope pur-
suant to statutory authority with lawfully confined sexually
violent predators subject to remedial treatment would have
been aware that the conduct alleged violated federal constitu-
tional bounds. Given the unsettled nature of the law in this
area, a reasonable official could certainly have believed other-
wise.

We decide this appeal with clear analytical guidance from
the Supreme Court:

Somewhat more concretely, whether an official pro-
tected by qualified immunity may be held personally
 HYDRICK v. HUNTER 12011
liable for an allegedly unlawful official action gener-
ally turns on the “objective legal reasonableness” of
the action, assessed in light of the legal rules that
were “clearly established” at the time it was taken.

The operation of this standard, however, depends
substantially upon the level of generality at which
the relevant “legal rule” is to be identified. For
example, the right to due process of law is quite
clearly established by the Due Process Clause, and
thus there is a sense in which any action that violates
that Clause (no matter how unclear it may be that the
particular action is a violation) violates a clearly
established right. Much the same could be said of
any other constitutional or statutory violation. But if
the test of “clearly established law” were to be
applied at this level of generality, it would bear no
relationship to the “objective legal reasonableness”
that is the touchstone of Harlow. Plaintiffs would be
able to convert the rule of qualified immunity that
our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of
extremely abstract rights. Harlow would be trans-
formed from a guarantee of immunity into a rule of
pleading. Such an approach, in sum, would destroy
“the balance that our cases strike between the inter-
ests in vindication of citizens’ constitutional rights
and in public officials’ effective performance of their
duties,” by making it impossible for officials “rea-
sonably [to] anticipate when their conduct may give
rise to liability for damages.” It should not be sur-
prising, therefore, that our cases establish that the
right the official is alleged to have violated must
have been “clearly established” in a more particu-
larized, and hence more relevant, sense: The con-
tours of the right must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right. This is not to say that an
12012 HYDRICK v. HUNTER
official action is protected by qualified immunity
unless the very action in question has previously
been held unlawful, but it is to say that in the light
of pre-existing law the unlawfulness must be appar-
ent.

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (empha-
sis added) (alteration in original) (internal citations omitted).

As my colleagues acknowledge, “this suit is unique, in that
it is one of the first widespread class actions to challenge the
conditions of detention for civilly confined SVPs.” It is not
only unique, but it requires us to answer questions never
before squarely addressed in this context. This factor alone
should be enough to entitle these individual defendants to dis-
missal.

My colleagues hang their analytical hat on Youngberg v.
Romeo, 457 U.S. 307, 322 (1982) for the proposition that
“civilly detained persons must be afforded ‘more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish.’ ” This is
a nice general quote mined out of context, but it gets us
nowhere in pursuit of an answer to the central question of
whether we have in this lawsuit violations of clearly estab-
lished rights. Why? Because Youngberg dealt with the passive
confinement for their own good of mentally defective per-
sons. In contrast, and as recently recognized by the Supreme
Court, sexually violent predators are confined in order to pro-
tect “the public from dangerous individuals with treatable as
well as untreatable conditions.” Seling v. Young, 531 U.S.
250, 262 (2001). In addition, the Seling Court said that the
case before it for decision “gives us no occasion to consider
how the civil nature of a confinement scheme relates to other
challenges, such as due process . . . .” Id. at 266. It is little
wonder, therefore, that my colleagues admit in connection
with Youngberg that “it is not always clearly established how
much more expansive the rights of civilly detained persons are
 HYDRICK v. HUNTER 12013
than those of criminally detained persons.” I disagree with my
colleagues’ claim that “[i]t follows logically [from Young-
berg], then, that the rights afforded prisoners set a floor for
those [rights] that must be afforded SVPs, and that where
Defendants violate a standard that is clearly established in the
prison context, the violation is clearly established under the
SVP scheme.” Where does this come from? It sounds new to
me. Certainly it is not a proposition clearly established and
controlling at the time relevant to this lawsuit. Saying that
rights follow logically from one area to another is an admis-
sion that those rights have not yet been clearly established in
the area to which they are being transported. Prisoners have
constitutional rights flowing from certain constitutional guar-
antees that do not apply out of the criminal context. Which
clearly established “prisoner rights” are they talking about? I
cannot find my colleagues’ bold assertion anywhere in any
case before this one. Where is the required level of specificity
required to hold these individuals personally responsible for
their acts? It is nowhere to be found. Where is the fair warn-
ing to them as to the constitutional limits of their compulsory
treatment programs? Expanding and extending some rights
from other contexts and extrapolating others defies the salu-
tary purpose of the doctrine of qualified immunity.

I find more than significant the relative newness of the civil
commitment procedure at issue in this case. California’s Sex-
ually Violent Predator Act was enacted in 1995. The constitu-
tionality of this concept was not upheld until 1997, see
Kansas v. Hendricks, 521 U.S. 346 (1997); and California’s
own courts did not begin definitively to iron out controversial
statutory issues of treatment — such as involuntary medica-
tion without a separate court order — until 2004. See In re
Calhoun, 18 Cal. Rptr. 3d 315 (Cal. Ct. App. 2004). When did
the acts complained of here occur? 1998, in the midst of grap-
pling by appellate courts with this new modality. In fact, the
courts have yet to clarify how the Constitution protects sexu-
ally violent predators from various confinement and treatment
modalities. Context is critical to the determination of whether
12014 HYDRICK v. HUNTER
a constitutional right has been established. The Supreme
Court confirmed this principle in Washington v. Harper, 494
U.S. 210 (1990), a lawsuit filed by a mentally ill state prisoner
complaining against treatment with anti-psychotic drugs
against his will and without a judicial hearing. In holding that
such treatment did not violate either substantive or procedural
due process, the Court said, “The extent of a prisoner’s right
under the Clause to avoid the unwanted administration of
antipsychotic drugs must be defined in the context of the
inmate’s confinement.” Id. at 222.

We read the same message in Parham v. J.R., 442 U.S.
584, 608 (1979): “What process is constitutionally due cannot
be divorced from the nature of the ultimate decision that is
being made.” See also Morrissey v. Brewer, 408 U.S. 471,
481 (1972) (“[D]ue process is flexible and calls for such pro-
cedural protections as the particular situation demands.”).

Noteworthy in Washington v. Harper was a correct holding
by the Washington Supreme Court that the individual defen-
dants were entitled to qualified immunity, 494 U.S. at 218
n.5. The case was allowed to proceed, but only to consider
claims for injunctive and declaratory relief under § 1983 as
well as state law — which is precisely what should happen
here. It seems that we are now requiring doctors and other
staff to consult not just with lawyers before they devise a pro-
cedure or treatment for a sexually violent predator, but with
the courts.

The Supreme Court warned against this result in Parham,
saying, “Due process has never been thought to require that
the neutral and detached trier of fact be law trained or a judi-
cial or administrative officer. Surely, this is the case as to
medical decisions, for neither judges nor administrative hear-
ing officers are better qualified than psychiatrists to render
psychiatric judgments. . . . The mode and procedure of medi-
cal diagnostic procedures is not the business of judges.” Id. at
607-08 (internal citations and quotations omitted).
 HYDRICK v. HUNTER 12015
The penalty for not anticipating a court ruling will be indi-
vidual liability. This unfortunate situation is precisely what
the doctrine of qualified immunity is designed to avoid.

II

It would appear that my colleagues’ approach to this case
is at irreconcilable odds with cases from at least four other
Circuits, the First, Fourth, Sixth, and Eleventh.

In Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701 (1st
Cir. 1993), a panel including Stephen Breyer, now Justice
Breyer, observed that claims against government officials for
money damages cannot proceed unless predicated upon
“clearly established” statutory or constitutional rights of
which a reasonable person would have been aware. Id. at 704.
In affirming a grant of summary judgment against the plain-
tiffs on the ground that the law relied upon by them was not
yet settled at the time of the actions in question, the Court
observed that “[t]he determination is time-critical.” Id. In
other words, no individual can be held personally liable for
violating a law that has not yet become particularized, which
means fixed in connection with a precise context. First the
clearly established law, then — and only then — potential
personal monetary liability for public officials. Due process
alone would seem to require such a sequence. As the Sixth
Circuit explained in McCloud v. Testa, 97 F.3d 1536, 1541
(6th Cir. 1996),

the ultimate burden of proof in this suit is on the
plaintiffs, who must establish that Testa’s conduct
[as a public official] violated a federal right so
clearly established that any official in his position
would have understood that he was under an affirma-
tive duty to refrain from such conduct.

The court went on to indicate that “individual capacity defen-
dants in § 1983 cases receive some benefit from legal doubt
12016 HYDRICK v. HUNTER
about the clarity of existing law. Id. at 1542. The Eleventh
Circuit would agree with this proposition, remarking that
“ ‘[i]f case law, in factual terms, has not staked out a bright
line, qualified immunity almost always protects the defen-
dant.’ ” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.
1997) (quoting Kelly v. Curtis, 21 F.3d 1544, 1550 (11th Cir.
1994)) (alteration in original). Relying on one of our cases,
Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir. 1989), the
Fourth Circuit remarked that public officials “ ‘are not
required to predict the future course of constitutional law’ ”;
and that [r]arely will a state official who simply enforces a
presumptively valid state statute lose her immunity from
suit.” Swanson v. Powers, 937 F.2d 965, 968, 969 (4th Cir.
1991). The court concluded with this wise statement:

The ills that would result from allowing suits for
damages against state officials who simply perform
their official duties are evident. Suits such as these
have the potential to threaten the foundations of our
most basic governmental functions-in this case, the
collection of the revenue. Because the plaintiffs’
asserted rights were not clearly established and
because Secretary Powers acted reasonably in
enforcing presumptively valid state statutes, we hold
that she is entitled to immunity from suit. The judg-
ment of the district court is therefore reversed.

Id. at 973.

In so far as my colleagues insist on borrowing principles
from other contexts, they part company with the Sixth Circuit,
which has held:

We may not impose personal liability upon state
social workers because they failed to anticipate that
principles of law developed in other distinct contexts
would be applied to them, for to do so would be con-
trary to the admonition in Anderson v. Creighton,
 HYDRICK v. HUNTER 12017
107 S. Ct. at 3039, that we should not allow plain-
tiffs to convert “the rule of qualified immunity into
a rule of virtually unqualified liability simply by
alleging violation of extremely abstract rights.”

Eugene D. v. Karman, 889 F.2d 701, 711 (6th Cir. 1989)
(emphasis added). See also Adams v. St. Lucie County Sher-
iff’s Dept., 962 F.2d 1563, 1575 (11th Cir. 1992) (Edmond-
son, J., dissenting) (public officials not obligated to draw
analogies from other cases), rev’d en banc, 998 F.2d 923, 923
(11th Cir. 1993) (per curiam) (adopting the reasoning of
Judge Edmondson’s dissent and reversing district court’s
denial of summary judgment to public official).

III

I take issue also with my colleagues’ assertion that because
the facts are not yet developed, it is too early in this lawsuit
to dismiss because of qualified immunity. This claim misses
the mark. As held repeatedly by the Supreme Court, qualified
immunity is immunity from being sued, not just from dam-
ages. This principle explains (1) why the Court warned in
Anderson against non-specific pleadings that allege violations
of “extremely abstract rights,” 483 U.S. at 639; and (2) the
Court’s holding in Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) that “[u]nless the plaintiff’s allegations state a claim of
violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the com-
mencement of discovery.” The Court revisited this issue again
in Behrens v. Pelletier, 516 U.S. 299 (1996). In the course of
overruling a mistaken opinion by the First Circuit, the Court
said,

The source of the First Circuit’s confusion was its
mistaken conception of the scope of protection
afforded by qualified immunity. Harlow and Mitch-
ell make clear that the defense is meant to give gov-
ernment officials a right, not merely to avoid
12018 HYDRICK v. HUNTER
“standing trial,” but also to avoid the burdens of
“such pretrial matters as discovery . . . , as
‘[i]nquiries of this kind can be peculiarly disruptive
of effective government.’ ”

Id. at 308 (quoting Mitchell, 472 U.S. at 526 (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 817 (1982))) (alterations in origi-
nal). The Court, in reversing us in 1991 on this very issue,
said, “[W]e repeatedly have stressed the importance of resolv-
ing immunity questions at the earliest possible stage in litiga-
tion.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).

Finally, my colleagues express their intention “not to evis-
cerate the notice pleading standard” that the system generally
uses to commence a lawsuit. I do not believe this caution is
well suited to this context. Again, I reiterate that the question
of qualified immunity requires prompt resolution. Anderson
seems to require pleadings more specific than the usual “no-
tice” standard. At the very least, pleadings against state offi-
cials in their individual capacities must demonstrate an
alleged violation of a particularized and relevant constitu-
tional right which has been clearly established. Hunter v. Bry-
ant also would seem to so require. To hold otherwise is to
disserve a doctrine that calls for resolution of the issue at the
“earliest possible stage” in litigation. Id. at 227.

IV

The question remains, how specific must the right allegedly
violated be defined in order to answer the question whether it
was clearly established? Wilson v. Layne, 526 U.S. 603
(1999) gives us a good example of the degree of specificity
required. In Wilson, the Court concluded first that officers
who took members of the media into a homeowner’s home to
observe and to record the execution of an arrest warrant did
so in clear violation of the Fourth Amendment. Nevertheless,
the Court concluded also that the officials who did so were
entitled to qualified immunity. The Court said that the appro-
 HYDRICK v. HUNTER 12019
priate question “is . . . whether a reasonable officer could have
believed that bringing members of the media into a home dur-
ing the execution of an arrest warrant was lawful . . . .” Id. at
615. Concluding that at the time of the violation the law was
“at best undeveloped,” the Court said, “Given such an unde-
veloped state of the law, the officers in this case cannot have
been ‘expected to predict the future course of constitutional
law.’ ” Id. at 617 (quoting Procunier v. Navarette, 434 U.S.
555, 562 (1978)).

From these precedents, I conclude that the proper question
in this case is whether it was clearly established at the time
of the events in this case that the Constitution prohibited these
individual officials from engaging in any of the actionable
behaviors attributed to them in connection with the manage-
ment and treatment of sexually violent predators civilly con-
fined under state law for treatment and for the protection of
the public. After reviewing all the relevant cases and authori-
ties, I answer this question in the negative.

The analytical error made by my colleagues becomes quite
apparent when they say,

Thus, there are two bodies of law from which we
might draw “clearly established” law for qualified
immunity purposes: first, where the SVPs claim a
violation of a right that is clearly established even in
the prison context, and second, where the SVPs
claim a violation of a right that is clearly established
for all civilly detained persons.

What this acknowledges is that we cannot find any clearly
established substantive rights in the SVP context, so we have
to borrow them from other areas, such as prison rights and the
rights of persons civilly detained for their own good and who
pose a demonstrated threat to society. An approach like this
certainly works well when the question is what constitutional
rights might these sexually violent predators have in this sys-
12020 HYDRICK v. HUNTER
tem, but it fails utterly when the issue is whether we hold
individuals personally liable ex post facto for their actions.

This lawsuit should proceed so that specific answers can be
found to the constitutional questions raised by the plaintiffs,
but it should proceed only in connection with possible declar-
atory or injunctive relief. To do otherwise will deter govern-
ment officials in the future from doing anything not to the
liking of a sexually violent predator. The penalty for making
a good faith mistake in an area of undeveloped law may be
the costs of a lawsuit and the potential personal liability aris-
ing out of the official performance of a state job.