Endsley v. Luna (750 F. Supp. 2d 1074, 2010)

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

DALE S. FISCHER, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Third Amended Complaint, all of the records and files herein, and the Magistrate Judge’s Amended Report and Recommendation. The time for filing Objections to the Amended Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge.

Accordingly, IT IS ORDERED THAT:

1. Plaintiffs Motion for Partial Summary Judgment is DENIED.

2. Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs claims under 42 U.S.C. § 1983.

3. Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs claims under state law.

4. Plaintiffs state law claims are DISMISSED with prejudice.

5. Plaintiffs claims for injunctive and declaratory relief are DISMISSED as moot.

6. Judgment shall be entered in favor of the Defendants and against Plaintiff on the entire Complaint. Plaintiffs entire Complaint shall be dismissed with prejudice.

7. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on Plaintiff and counsel for Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SUZANNE H. SEGAL, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

INTRODUCTION

Plaintiff Marc Anthony Lowell Endsley (“Plaintiff’), proceeding pro se, filed a Civil Rights Complaint pursuant to 42 U.S.C. § 1983, which the Court dismissed with leave to amend due to various deficiencies. The Court also dismissed with leave to amend Plaintiffs subsequently filed First Amended Complaint and Second Amended Complaint.

Plaintiff filed the operative Third Amended Complaint (“Third Amended Complaint” or “TAC”) on March 20, 2008, naming ten individuals who are or were employees at Patton State Hospital (“Patton”) as defendants. By Notice of Change of Address dated June 6, 2008 (“Address Change”), Plaintiff informed the Court that he had been transferred from Patton to Atascadero State Hospital. Defendants Luna, Bellamy, Birks, Atkins, and Monroe filed a Motion to Dismiss the Third Amended Complaint (“First Motion to Dismiss”) in which Defendants Siregar and Benson later joined. Defendants ArmasCarl and Loyarte filed a separate Motion to Dismiss the Third Amended Complaint. Plaintiff opposed both Motions to Dismiss. The District Court granted Defendants’ Motions to Dismiss in part, dismissing without prejudice Plaintiffs claims under the Americans with Disabilities Act, as well as all of Plaintiffs claims against Defendant Singh. The remaining nine Defendants (collectively, “Defendants”) filed an Answer to the Third Amended Complaint.

Defendants filed a Motion for Summary Judgment (“Defendants’ MSJ”), along with a Proposed Statement of Uncontroverted Facts and Conclusions of Law (“Defendants’ SUF”) and twelve Declarations in support of Defendants’ MSJ. Defendants’ MSJ was also supported by Defendants’ Request for Judicial Notice in Support of the First Motion to Dismiss (“Request for Judicial Notice”). As required by Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998), the Court issued an “Order Re Summary Judgment Protocol and Briefing Schedule” which informed Petitioner of his rights under Federal Rule of Civil Procedure 56 and attached a copy of the text of the Rule.

Plaintiff filed his Motion for Partial Summary Judgment along with a “Memorandum of Law” supporting the Motion and opposing Defendant’s MSJ (“Plaintiffs MPSJ”). Plaintiff also filed a Declaration in Support of Plaintiffs Motion for Partial Summary Judgment (“Endsley Decl.”) and a Statement of Uncontroverted Facts and Conclusions of Law (“Plaintiffs SUF”). Defendants filed a Reply in Support of Defendants’ MSJ (“Reply”) and an Opposition to Plaintiffs MPSJ (“Defendants’ Opposition”), which was supported by a Declaration of Benjamin Barnouw (“Second Barnouw Decl.”) and a Statement of Genuine Issues of Material Fact (“Defendants’ SGI”). Plaintiff did not file a response to Defendants’ Opposition.

This matter is now ready for decision. For the reasons discussed below, it is recommended that Defendants’ Motion for Summary Judgment be GRANTED and Plaintiffs Motion for Partial Summary Judgment be DENIED.

II.

REMAINING ALLEGATIONS OF THE THIRD AMENDED COMPLAINT

In 1997, Plaintiff was committed to Patton State Hospital (“Patton”), a psychiatric hospital facility operated by the California Department of Mental Health. (TAC at 6). Plaintiff was committed to Patton after being charged with murder and found not guilty by reason of insanity. (Id.; Request for Judicial Notice, Exh. C). In November 2004, Plaintiffs residential housing program implemented “a highly structured model of service delivery called Mall Treatment.” (TAC at 6).

The following persons remain defendants: Octavio Luna, the warden/executive director at Patton; John Benson (erroneously sued as Jon Benson), Plaintiffs former psychiatrist; Denise Armas-Carl, Millicent Loyarte, Ed Sireger, Jonathan Monroe and Jennifer Atkins, psychiatric technicians; Jim Birks, a nursing coordinator; and Roy Bellamy, a unit supervisor. (Id. at 3-5). Plaintiff sues each of these persons in his or her individual capacity. (Id.). Plaintiff seeks declaratory and injunctive relief, as well as $600,000 in compensatory damages and $290,000 in punitive damages. (See id. at 16-18).

Plaintiff asserts three civil rights claims as well as various state law tort claims. (Id. at 6). In Claim One, Plaintiff asserts that Defendants’ implementation of Mall Treatment deprived him of adequate care in violation of the Fourteenth Amendment. (Id. at 7-9). Specifically, Plaintiff claims that the Mall Treatment program, including the requirement that patients who do not participate in Mall Treatment convene in a “Refusal Room,” does not conform to professional standards nor to the terms of a Consent Judgment involving Patton. (Id.; see also Request for Judicial Notice, Exhs. D, E). Plaintiff further complains that the revocation of his Industrial Therapy assignment and of his right to participate in Patton’s patient government constituted punishment in violation of his Fourteenth Amendment rights. (TAC at 8).

In Claim Two, Plaintiff alleges that on seven occasions between December 2004 and July 2005 various Defendants used excessive force against Plaintiff in violation of the Fourteenth Amendment. (Id. at 10-13). One of these incidents allegedly occurred while Plaintiff was in a “Refusal Room” after refusing to attend Mall treatment and consisted of a hospital employee pulling or attempting to pull a chair out from under him. (Id. at 10). Six other incidents of force allegedly occurred after Plaintiff balked at attending Mall Treatment and refused to go to the Refusal Room: These incidents largely consisted of hospital employees “dragging]” Plaintiff from a room using physical force. (Id. at 10-11). Plaintiff claims that these actions also constituted the torts of harassment, assault, and battery. (Id.). In one of these incidents, Plaintiff alleges that Defendants Atkins and Siregar falsely reported in his medical records that Plaintiff “swung” at them. Plaintiff accuses these Defendants of perjury. (Id. at 11).

In Claim Three, Plaintiff contends that the overcrowded and unsanitary conditions in the Refusal Room constituted punishment designed “to ‘annoy’ patients into going to Mall” in violation of his Fourteenth Amendment rights. (Id. at 14-15). Plaintiff also claims that Defendant Birks “rang a radio in [PjlaintifPs ear when [Pjlaintiff attempted to sleep in Refusal.” (Id. at 14). Furthermore, Plaintiff claims that Defendants denied him the use of his property while in the Refusal Room, constituting “the tort of deprivation of personal property” under California Code of Regulations, title 9, section 884(b)(1). (Id.).

III.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants assert that they are entitled to summary judgment on all of Plaintiffs claims. Defendants argue that Plaintiffs inadequate medical care claim fails because, pursuant to Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), “the Constitution only requires that the courts make certain that professional judgment in fact was exercised” when ruling on a claim of inadequate medical care by an involuntarily confined individual. (Defendants’ MSJ at 14). Defendants note that the Mall Treatment program was based upon professional judgment (id. at 14, 15), and decisions with regard to Plaintiffs participation in the Mall program were taken in the exercise of professional judgment (id. at 17). Defendants further note that Plaintiff could have avoided the Refusal Room and other consequences, such as the ban on his participation in Industrial Therapy and patient government, by participating in the Mall program. (Id.). At the very least, Defendants argue, Defendant Luna is entitled to qualified immunity on this claim because his actions in structuring the Mall Treatment program did not violate clearly established law. (Id. at 16).

Regarding Plaintiffs excessive force claims, Defendants assert that there was no constitutional violation because any force used did not constitute “punishment” prohibited by the Fourteenth Amendment. (Id. at 18); see Bell v. Wolfish, 441 U.S. 520, 534-35, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (stating that “the proper inquiry” in determining the constitutionality of conditions or restrictions of detention that is not the result of criminal conviction “is whether those conditions amount to punishment of the detainee”). Defendants argue that any force used did not rise to the level of punishment because it was either de minimis or rationally related to the need to restore order and maintain discipline. (Defendants’ MSJ at 19, 22); see Bell, 441 U.S. at 538-39 & n. 21, 99 S.Ct. 1861 (holding that where a restriction that is greater than de minimis is imposed, the “court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose”). To the extent that Plaintiff claims that liability should attach because certain Defendants were enforcing an unconstitutional rule, Defendants assert that the rule mandating attendance in the Refusal Room for patients who refuse Mall treatment is constitutional because any imposition caused by the rule is de minimis or, if not, the policy is rationally related to safety concerns. (Defendants’ MSJ at 21). Alternatively, Defendants argue they are entitled to qualified immunity because any unconstitutionality was not clearly established at the time of the alleged violation. (Id. at 21-22).

Defendants argue that they are entitled to summary judgment on Plaintiffs claims regarding the Refusal Room conditions because any hardship imposed by the conditions was de minimis or was necessitated by the fact that the institution has limited space. (Id. at 22-23). Additionally, Defendants argue that there is no evidence that the allegedly overcrowded and unsanitary conditions were imposed for the purpose of punishment. (Id. at 23). They also point out that, had Plaintiff participated in Mall treatment, he could have avoided the Refusal Room altogether. (Id.). Moreover, they assert that, even if the conditions amounted to unconstitutional punishment, Defendants are entitled to qualified immunity because the conditions did not violate any clearly established law. (Id.).

Regarding the alleged false reports made by Defendants Atkins and Siregar, Defendants argue that Plaintiffs claim fails because there is no evidence that “anything negative happened as a result of the notations in his chart.” (Id.)

Finally, Defendants contend that Plaintiffs state law claims fail for three reasons. First, Plaintiff did not comply with provisions of the California Tort Claims Act by presenting a claim to the Victim Compensation and Government Claims Board prior to filing this action. (Id. at 23-24 (citing Cal. Govt. Code §§ 945.4, 950.2 (West 2009))). Second, Defendants Benson, Bellamy, Monroe, Armas-Cari, and Luna enjoy “discretionary act immunity” pursuant to California Government Code section 820.2. (Id. at 24). Third, Plaintiffs claim under California Code of Regulations, title 9, section 884(b)(1) fails because a “denial” of property is not prohibited by the section and because the section does not create a private cause of action. (Id. at 25).

IV.

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff argues he should be granted summary judgment on his claims of excessive force, his claim that he was denied his personal property, and his claims related to the Refusal Room conditions. (Plaintiffs MPSJ at 4-14). He also argues that genuine issues of material fact preclude summary judgment on his claim of inadequate medical care. (Id. at 2-3).

According to Plaintiff, he is entitled to summary judgment on his excessive force claims under the Fourth Amendment’s “objective reasonableness” standard. (Id. at 6). He argues that Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), requires examination of “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Plaintiffs MPSJ at 6). Plaintiff asserts that Defendants have failed to produce evidence that Plaintiff had committed or was suspected of committing a crime, was an immediate threat, or resisted arrest. (Id. at 6-7). He also asserts that Defendants’ alleged motives are irrelevant to the objective reasonableness test and that Defendants’ alleged reasons are either “spurious” or unsupported by evidence. (Id. at 8-10).

Plaintiffs argument regarding his third claim, which he labels “Punishment,” flows from the proposition that those who have not been convicted of a crime, such as those who are civilly committed, cannot be punished. (Id. at 10 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) and Hydride v. Hunter, 500 F.3d 978 (9th Cir. 2007), vacated on other grounds, — U.S. -, 129 S.Ct. 2431, 174 L.Ed.2d 226 (2009))). Plaintiff asserts that the deprivation of property that occurs when he is locked out of his room while in the Refusal Room constitutes punishment. (Plaintiffs MPSJ at 11). Plaintiff then asserts that the Refusal Room conditions also violate his constitutional rights under the Eighth Amendment’s prohibition against cruel and unusual punishment, which provides less protection than the Fourteenth Amendment. (Id. at 11-14).

As to his state law tort claims, Plaintiff asserts that he has fulfilled all filing requirements, including the statute of limitations. (Id. at 15). He further asserts that he has filed an administrative claim with the “State Personnel Board.” (Id. at 15). He also asserts that federal courts are not bound by California statutes that impose exhaustion requirements, and that, under federal law, there is no exhaustion requirement for § 1983 claims. (Id.).

Finally, he asserts that Defendants are not immune under either the doctrine of qualified immunity, because the constitutional rights allegedly abridged had been clearly established since Youngberg, or the doctrine of discretionary act immunity. (Id.).

y.

DISCUSSION

A. Summary Judgment Standards

Summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir.2007). “When presented with cross-motions for summary judgment, [a court] review[s] each motion for summary judgment separately, giving the nonmoving party for each motion the benefit of all reasonable inferences.” Center for Bio-Ethical Reform, Inc. v. L.A. County Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir.2008). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A district court may grant summary judgment on the grounds of qualified immunity. In order to evaluate a claim of qualified immunity, “a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right” and “whether the right at issue was ‘clearly established’ at the time of [the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009) (citations omitted). Although courts ideally conduct this analysis sequentially, they may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818. Whether a right is clearly established 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.” Id. at 822. “The dispositive inquiry is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.” Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir.2010) (internal quotation marks omitted).

B. Defendants Are Entitled To Summary Judgment On Plaintiff’s Inadequate Medical Care Claims

1. Plaintiffs Claims

Plaintiff argues that he was provided inadequate medical care because the Mall Treatment program at Patton did not comport with accepted professional standards of care or his rights under a Consent Judgment made applicable to Patton on August 16, 2006. (See TAC at 8-9, ¶¶ 25-27; MPSJ at 1; Endsley Decl. at 2, ¶ 3; see also Order Amending Consent Judgment at 2). More specifically, he complains that he was required to attend Mall Treatment sessions that did not address his specific treatment needs and that he did not choose. (TAC at 8, ¶ 25). He also argues that the Mall Treatment program at Patton violated the Consent Judgment’s requirement that Patton implement a program embodying a “Recovery Philosophy” and “Psychosocial Rehabilitation Model” of care. (Id. at 7-8, ¶¶ 13, 20, 23; MPSJ at 1; Endsley Decl. at 2, ¶ 3). Finally, he states that he was unconstitutionally punished when Defendants Benson and Luna revoked his Industrial Therapy assignment and withdrew their permission for Plaintiff to participate in patient government. (TAC at 8, ¶ 23).

2. Applicable Law

In Youngberg, the Supreme Court set out the standard for measuring claims of inadequate medical care by civilly committed persons. Under the rubric of substantive due process, whether a civilly committed person’s “constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” Youngberg, 457 U.S. at 321, 102 S.Ct. 2452. The Court recognized that the civilly committed “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Id. at 321-22, 102 S.Ct. 2452.

The Youngberg Court held that “the Constitution only requires that the courts make certain that professional judgment was in fact exercised. It is not appropriate for the courts to specify which of

several professionally acceptable choices should have been made.” Id. at 321, 102 S.Ct. 2452 (internal quotation marks omitted). “A decision made by a professional is presumptively valid,” and courts must show deference to such decisions. Sharp v. Weston, 233 F.3d 1166, 1171 (9th Cir. 2000). This presumption can be overcome and “ ‘liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such judgment.’ ” Sharp, 233 F.3d at 1171 (quoting Youngberg, 457 U.S. at 323, 102 S.Ct. 2452). That is, courts must allow states “wide latitude in developing treatment regimens” and interfere only “when there is a substantial departure from accepted professional judgment or when there has been no exercise of professional judgment at all.” Sharp, 233 F.3d at 1171. Thus, “courts must restrict their inquiry to two questions: (1) whether the decision-maker is a qualified professional entitled to deference, and (2) whether the decision reflects a conscious indifference amounting to gross negligence, so as to demonstrate that the decision was not based on professional judgment.” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.1992).

3. Plaintiff Has Not Raised A Genuine Issue Of Material Fact As To Whether His Medical Care Was Constitutionally Inadequate

Under the standard of Youngberg, Plaintiffs claim of inadequate medical care must fail. Defendants have provided declarations confirming that the decision to implement Mall Treatment and the decisions regarding Plaintiffs treatment were taken by qualified professionals in the exercise of their professional judgment. Plaintiff has failed to produce evidence that raises any genuine issue of material fact as to whether professional judgment was, in fact, exercised in the implementation of Mall Treatment at Patton or in the individual treatment decisions applicable to Plaintiff.

There is uncontroverted evidence to show that those who made the decision to implement Mall Treatment at Patton were professionals entitled to deference. According to Defendants’ declarations, Patton’s Executive Director, Octavio Luna, in consultation with Dr. Nirbhay Singh, a consultant retained by the California Department of Mental Health (“DMH”), and governmental officials from the DMH determined that Mall Treatment was appropriate. (See Luna Deck at 1, ¶ 1; id. at 4-5, ¶¶ 7-13). Defendant Luna had been Clinical Administrator at Patton for eleven years, prior to being promoted to Hospital Administrator. (See id. at 1, ¶ 1). He was promoted to Acting Executive Director in 2003 and has been Executive Director at Patton since January 2004. (See id.). Dr. Singh had previously assisted other public psychiatric hospitals to implement changes in order to ensure the civil rights of their patients, and had acted as Court Monitor in at least one previous lawsuit brought by the United States Department of Justice. (See id. at 3, ¶ 7). While Plaintiff asserts that Defendants are not “qualified to give expert testimony” in the fields of “Recovery Philosophy” and the “Psychosocial Rehabilitation Model,” at least in part by virtue of their status as Defendants (see Plaintiffs MPSJ at 2), he has presented no evidence that the decisionmakers are not entitled to the deference due professionals.

Defendants have similarly provided ample evidence that the Mall Treatment program was implemented in the exercise of professional judgment. Dr. Singh recommended to Luna the implementation of “a new model of treatment delivery known as Psychosocial Rehabilitation Mall.” (Luna Deck at 4-5, ¶ 11). As noted above, the decision to implement Mall Treatment at Patton and other California state psychiatric hospitals “was made collaboratively by various officials from the headquarters of the DMH and the Executive Directors at each hospital.” (Id. at 5, ¶ 13). Moreover, prior to implementing Mall Treatment at Patton, Patton’s Clinical Administrator was sent to examine a hospital in Virginia that had implemented Mall Treatment and she reported that the program “seemed to be working generally well.” (Id. at 5, ¶ 14).

The evidence also demonstrates that the decisionmakers considered specific advantages of Mall Treatment in deciding to implement it. Mall Treatment utilized staff resource efficiently, allowing staff to interact with patients in groups, thus ensuring that all patients had the opportunity to interact with staff. (Id. at 6, ¶ 15). Mall Treatment also added structure to patients’ lives, which could help prepare them for release into the community. (Id. at 6, ¶ 16). Because patients were not forced to participate in Mall Treatment (see, e.g., id. at 7, ¶ 21), staff was able to deal with problems of monitoring patients who refused Mall Treatment by instituting the Refusal Room. A communal gathering place was necessary because, while Mall Treatment groups were in session, there was not enough staff to monitor the patients in their rooms to make sure they were not harming themselves or others or otherwise breaking hospital rules. (Luna Deck at 7, ¶ 21-22, 30; Bellamy Deck at 3, ¶¶ 7-8; Loyarte Deck at 3, ¶ 7; ArmasCarl Deck at 3, ¶ 6; Birks Deck at 2-3, ¶ 5; Atkins Deck at 2, ¶ 5).

Similarly, Defendants present evidence that professionals exercised their professional judgment when they made decisions regarding Plaintiffs individual treatment. In his Motion for Partial Summary Judgment, Plaintiff does not argue that the individuals who were treating him were not professionals entitled to deference. Defendants’ evidence shows that the decisions Plaintiff challenges, such as the decision to revoke Plaintiff Industrial Therapy and patient government assignments, were made by his treatment team. (See, e.g., Luna Deck at 8, ¶ 26; Benson Deck at 12, ¶ 34; Marriot Deck at 11, ¶ 34, Melvin Deck at 6-8, ¶¶ 20-27). Furthermore, uncontroverted evidence shows that Plaintiffs Industrial Therapy and patient government positions were taken away in exercise of professional judgment. Plaintiff was diagnosed with Narcissistic Personality Disorder, a condition in which a patient has unrealistic beliefs that he is entitled to special treatment and “is unable to realize that [his] own faults or decisions can be responsible for [his] own problems.” (Benson Deck at 2-3, ¶¶ 5-6; id., Exh. 1 at 2; id., Exh. 2; see also Melvin Deck at 3, ¶ 6; Endsley Depo. at 11:5-18). Given this diagnosis, Plaintiffs treatment team decided that allowing Plaintiff the privilege of participating in Industrial Therapy and patient government while he refused to participate in his treatment would be “eountertherapeutic” because it would be providing Plaintiff “special treatment.” (Luna Deck at 8, ¶ 26; Benson Deck at 12, ¶34; Marriot Deck at 11, ¶ 34; Melvin Deck at 6-8, ¶¶ 20-27). Moreover, it is undisputed that, had Plaintiff agreed to attend Mall Treatment, he could have kept the forfeited assignments. (Endsley Depo. at 97:19-25).

To the extent that Plaintiff complains that he was assigned Mall Treatment groups that did not address his specific treatment needs and that he did not choose (TAC at 8, ¶ 25), Defendants have produced evidence to show that these decisions, too, were taken in the exercise of professional judgment. Under the Mall Treatment program, patients and their treatment teams would decide which Mall Treatment groups patients would attend. (Marriot Decl. at 6, ¶ 15; Benson Deck at 7-8, ¶ 20). The evidence also shows that, when Plaintiff was not completely refusing treatment, he and his treatment team chose the groups he would attend. (Benson Deck at 8, ¶ 23; Marriot Deck at 6-7, ¶ 17; Endsley Depo. at 32:23-35:20; id. at 36:2-10).

Plaintiff has failed to produce any evidence to controvert these facts. Moreover, to the extent that Plaintiff complains that the Mall Treatment groups to which he was assigned did not address his treatment needs, Defendants produced evidence that even groups that are not specifically targeted at a patient’s particular diagnosis can have positive therapeutic effects, such as allowing patients to practice social skills and to become comfortable with adhering to a schedule, both of which help prepare patients for life after release. (Benson Deck at 9-10, ¶¶ 27, 29; Marriot Deck at 7, ¶ 19).

In opposition to Defendants’ Motion for Summary Judgment, Plaintiff asserts that the conditions at Patton violate the 2006 Consent Judgment governing California’s public psychiatric hospitals. (Plaintiffs MPSJ at 2-3). However, as discussed below, the Consent Judgment does not create a liberty interest that protects Plaintiff. See infra Section V.E. Plaintiffs Third Amended Complaint also refers to the Patton Report, a May 2, 2006 report from the Department of Justice to Governor Arnold Schwarzenegger, outlining in general terms deficiencies in conditions and practices at Patton. (Patton Report at 1, 2-3). The Court notes that the Patton Report is not itself capable of creating a protected liberty interest. The Supreme Court has held that “[pjrotected liberty interests may arise from two sources-the Due Process Clause itself and the laws of the States.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (quotation marks omitted). The Ninth Circuit has held that a consent decree can create a protected liberty interest because a state voluntarily enters into such an agreement, making any right established under it “by any meaningful measure state-created.” Smith v. Sumner, 994 F.2d 1401, 1406 (9th Cir.1993). However, the Patton Report is neither a state law nor a consent decree. It is, rather, a document created by the Department of Justice in anticipation of potential litigation with the State of California. (See Patton Report at 1 (stating that the Patton Report was created in the course of an investigation pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”), which “gives the Department of Justice authority to seek remedies for any pattern and practice of conduct that violates the constitutional and federal statutory rights of persons with mental illness who are served in public institutions”)). Thus, it cannot embody a state-created protected liberty interest.

At most, the Patton Report could provide evidence on the question of whether staff exercised their professional judgment in the implementation of Mall Treatment. However, while pointing out deficiencies in the care and conditions at Patton, the report does not create a factual issue as to Plaintiffs claim of constitutionally inadequate medical care. Plaintiff has brought an individual action challenging the adequacy of his specific medical care. The Patton Report does not address the facts of this case, but rather contains generalized assertions regarding Patton’s implementation of Mall Treatment. (See Patton Report at 7-8). It does not address the question of whether professional judgment was in fact exercised in taking the decisions at issue here. Indeed, there is no indication that the conclusions in the Patton Report involved Plaintiffs treatment in any way. Nor does the Patton Report indicate or permit an inference that the implementation and treatment decisions Defendants made regarding Plaintiffs treatment “reflect[ed] a conscious indifference amounting to gross negligence, so as to demonstrate that the decisions] w[ere] not based on professional judgment.” Houghton, 965 F.2d at 1536. To survive a motion for summary judgment, the nonmoving party “is required to show specific facts ... that present a genuine issue worthy of trial.” Dark v. Curry County, 451 F.3d 1078, 1082 n. 2 (9th Cir.2006) (internal quotation marks omitted). The Patton Report’s assertions are too generalized to preclude summary judgment on this claim.

In sum, Defendants have produced evidence to show that Plaintiffs treatment was provided in the exercise of professional judgment. Plaintiff has failed to raise a general issue of material fact that would preclude the grant of summary judgment on this claim in favor of Defendants.

4. Even If Plaintiff Had Demonstrated A Constitutional Violation, Defendants Are Entitled to Qualified Immunity Because It Would Not Be Clear To A Reasonable Official That The Treatment Decisions Made Were Unlawful

Youngberg established the contours of the right to constitutionally adequate medical care enjoyed by civilly committed persons. However, even if Defendants’ actions and omissions fell below this standard, they are still entitled to qualified immunity, because the treatment decisions made were not clearly unlawful. See Elliot-Park, 592 F.3d at 1008 (“The dispositive inquiry is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.” (internal quotation marks omitted)).

As discussed above, the evidence shows that all of the decisions with regard to Plaintiffs treatment, from the implementation of Mall Treatment to Plaintiffs individual treatment, were in fact taken in the exercise of professional judgment. No reasonable official would have known that such decisions could be deemed unlawful under a standard that requires “conscious indifference amounting to gross negligence.” Houghton, 965 F.2d at 1536.

C. Defendants Are Entitled To Summary Judgment On Plaintiff’s Excessive Force Claims

1. Plaintiffs Claims

As noted above, Plaintiff alleges that on seven occasions various Defendants used excessive force on him in violation of the Fourteenth Amendment:

(1) On December 10, 2004, Defendant Monroe pulled or attempted to pull a chair out from under Plaintiff when Plaintiff refused to sit up from a reclining position while in the Refusal Room. (TAC at 10, ¶ 34; Plaintiffs SUF at 3, ¶ 11);

(2) On January 21, 2005, Defendant Ar-mas-Carl threatened Plaintiff and “called for a show of force” when Plaintiff refused to exit a seclusion room and go to Mall or the Refusal Room (TAC at 10, ¶35; Plaintiffs SUF at 3, ¶ 12);

(3) On July 6, 2005, after Plaintiff refused to go to Mall or the Refusal Room, Defendant Bellamy and another employee dragged Plaintiff out of bed, restrained his arms, and dragged him to a seclusion room (TAC at 10, ¶ 36; Plaintiffs SUF at l) ¶ 3);

(4) On July 8, 2005, after Plaintiff refused to go to Mall or the Refusal Room, hospital employees dragged Plaintiff out of bed, restrained his arms, and dragged him to a seclusion room (TAC at 10-11, ¶ 37; Plaintiffs SUF at ¶ 12);

(5) On July 21, 2005, after Plaintiff refused to go to Mall or the Refusal Room, Defendant Bellamy and two other hospital employees “hoisted [Plaintiff] by his arms and shorts in such a way as to cause intentional infliction of pain of his genitals” and dragged him past other patients and hospital employees (TAC at 11, ¶ 38; see also Plaintiffs SUF at 2, ¶ 5);

(6) On July 22, 2005, after Plaintiff refused to go to Mall or the Refusal Room, Defendant Bellamy and another hospital employee dragged Plaintiff from his bed and carried him toward the Refusal Room, then dropped Plaintiff to the floor when he resisted (TAC at 11, ¶ 39; Plaintiffs SUF at 2, ¶ 6);

(7) On July 25, 2005, after Plaintiff refused to go to Mall or the Refusal Room, Defendant Bellamy and two other hospital employees dragged Plaintiff from his bed with his arms restrained, shoved him into a wall and pushed him to the ground when he resisted, put him in five-point restraints and sedated him, and falsified a report to justify the incident (TAC at 11, ¶ 40; Plaintiffs SUF at 2, ¶ 7).

2. Applicable Law

Plaintiff asserts that his excessive force claims should be analyzed under the Fourth Amendment’s “objective reasonableness” standard. (Plaintiffs MPSJ at 5). Defendants disagree, insisting that excessive force claims by civil detainees are governed by the Fourteenth Amendment. (Defendants’ Opposition at 10). In the Ninth Circuit, the standard for excessive force claims is derived from the Fourth Amendment whether the claim is brought under the Fourth or the Fourteenth Amendments. See Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir.2002) (“[W]e have determined that the Fourth Amendment sets the applicable constitutional limitations for considering the claims of excessive force during pretrial detention.” (internal quotation marks omitted)). The standard is one of objective reasonableness under all of the circumstances. See Gibson, 290 F.3d at 1197-98 (discussing Graham); see also Hydrick, 500 F.3d at 997-98 (stating that an objective reasonableness standard applies to excessive force claims by persons who are involuntarily civilly committed).

In evaluating an excessive force claim, the court must determine whether the use of force was reasonable “in light of the facts and circumstances confronting the [state actor], from the perspective of a reasonable [state actor] at the scene, rather than with the 20/20 vision of hindsight.” Long v. City & County of Honolulu, 511 F.3d 901, 906 (9th Cir.2007) (internal quotation marks omitted). The Eighth Amendment “provides a floor for the level of protection” due civilly confined persons, and, because its “contours ... are more defined [than the contours of the Fourteenth Amendment], Eighth Amendment jurisprudence may provide helpful guidance as to the standards to be applied.” Hydrick, 500 F.3d at 998. The Eighth Amendment prohibits “unnecessary and wanton force ... [and] 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 perceived by the officer, any effort to temper the severity of the forceful response, ... the extent of the injury inflicted, and whether the force was applied for a legitimate purpose.” Id.

In Hydrick, the Ninth Circuit, looking to Supreme Court precedent, “restate^] the contours” of the law applicable to excessive force claims by the civilly committed: “The Fourteenth Amendment requires that civilly committed persons not be subjected to conditions that amount to punishment, within the bounds of professional discretion.” Hydrick, 500 F.3d at 997 (citing Bell, 441 U.S. at 536, 99 S.Ct. 1861; Youngberg, 457 U.S. at 321-22, 102 S.Ct. 2452; and Seling v. Young, 531 U.S. 250, 265, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001)) (internal citations, quotation marks, and brackets omitted). There is “a de minimis level of imposition with which the Constitution is not concerned.” Bell, 441 U.S. at 539, n. 21, 99 S.Ct. 1861 (internal quotation marks omitted). Moreover, if a particular condition or restriction is “reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ ” Id. at 539, 99 S.Ct. 1861. “Legitimate nonpunitive governmental objectives include ‘maintaining security and order’ and ‘operating the [detention facility] in a manageable fashion.’ ” Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir.2008) (quoting Bell, 441 U.S. at 540 n. 23, 99 S.Ct. 1861).

In defending institutional policies, however, officials “cannot rely on general or conclusory assertions.” Walker v. Sumner, 917 F.2d 382, 386 (9th Cir.1990). Instead, “they must first identify the specific [governmental] interests involved and then demonstrate both that those specific interests are the actual bases for their policies and that the policies are reasonably related to the furtherance of the identified interests. An evidentiary showing is required as to each point.” Id.

3. There Is No Genuine Issue Of Material Fact As To Whether Plaintiff Was Subjected to Constitutionally Excessive Force

Defendants are entitled to summary judgment on Plaintiffs excessive force claims because in each of the incidents, the force used was reasonable under all of the circumstances and did not amount to punishment.

a. The December 10, 2004 Incident

The December 10, 2004 incident, in which Defendant Monroe pulled or attempted to pull a chair out from under Plaintiff when Plaintiff refused to sit up from a reclining position while in the Refusal Room, does not constitute excessive force as a matter of law. Plaintiff asserts that Defendant Monroe merely slowly tipped forward a chair on which Plaintiff had laid his head and shoulders until Plaintiff sat up. (Endsley Depo. at 128:10-129:10). Plaintiff was not injured. (Id. at 129: 11-13). This is just the sort of “de minimis ... imposition with which the Constitution is not concerned.” Bell, 441 U.S. at 539, n. 21, 99 S.Ct. 1861 (internal quotation marks omitted). Even if this intrusion were more than de minimis, Defendants produced evidence that Defendant Monroe was attempting to enforce a rule prohibiting sleeping in the Refusal Room. (Luna Deck at 7-8, ¶ 24; see also Endsley Depo. at 129:23-25). Sleepiness was a matter of concern because it could be caused by “an adverse reaction to medication [or] the after-effects of an altercation,” either of which threaten the patient’s safety and security. (Luna Deck at 7-8, ¶ 24). Thus, the moderate amount of force used to waken Plaintiff in the Refusal Room was rationally related to a legitimate governmental purpose and did not constitute excessive force. See Pierce, 526 F.3d at 1205 (maintaining security and order is a legitimate nonpunitive governmental objective).

b. The Remaining Incidents

Plaintiffs refusal to attend either Mall Treatment or the Refusal Room provoked the remaining six incidents. {See Plaintiffs SUF at 1-2, ¶¶ 3 — 7; id. at 3, ¶ 12). That is, the allegedly excessive force occurred when Defendants or other Patton staffers were attempting to remove a resisting Plaintiff from his room or a seclusion room during Mall Treatment hours. Defendants’ uncontroverted evidence shows that the Refusal Room allowed staff to efficiently monitor patients who refused Mall Treatment to make sure they were not harming themselves or others or otherwise breaking hospital rules. (Luna Deck at 7, ¶¶ 21-22, 30; Bellamy Deck at 3, ¶¶ 7-8; Loyarte Deck at 3, ¶ 7; Armas-Carl Deck at 3, ¶ 6; Birks Deck at 2-3, ¶ 5; Atkins Deck at 2, ¶ 5). Thus, Defendants have established (and Plaintiff has not rebutted) that the rule requiring patients who refused Mall Treatment to attend the Refusal Room was instituted to maintain security and order in the institution. With this background established, the Court turns to Plaintiffs remaining claims of excessive force.

(1) The January 21, 2005 Incident

Plaintiff complains that on January 21, 2005, Defendant Armas-Carl called for a show of force to remove Plaintiff from a seclusion room when he refused to attend Mall Treatment or go to the Refusal Room. According to Plaintiff, Defendant Armas-Carl called in an emergency on her walkie-talkie and, within a few minutes, between five and eight staff members “came rushing towards [Plaintiff].” (Endsley Depo. at 100:10-13). Prior to any physical contact, Plaintiff “complied and went to the Refusal Room.” {Id. at 100:14-16). The Ninth Circuit has held that “mere threats” do not state a cognizable claim under § 1983. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987).

The threat of force here was applied in furtherance of a rule instituted for the maintenance of security and order. Plaintiff was neither touched nor injured. There was no constitutional violation under the objective reasonableness standard. Cf. Robinson v. Solano County, 278 F.3d 1007, 1013-15 (9th Cir.2002) (en banc) (holding that the allegation that police officers’ “use of a drawn gun pointed at close range at [plaintiffs] head” stated a claim for excessive force in the absence of any touching when no factors justifying force were present); see also id. at 1017 (Fernandez, J. concurring in the judgment) (“In my view, when the seizure itself is otherwise proper the mere threat of force cannot be an excessive force within the meaning of the Fourth Amendment.”).

(2) The July 6, 2005 and July 8, 2005 Incidents

The July 6, 2005 and July 8, 2005 incidents are sufficiently similar to be analyzed together. {See Endsley Depo. at 147:2-9 (stating that the July 8 incident was similar to the July 6 incident)). In each of these incidents, Plaintiff purposely went limp as staff members pulled him to a seated position on his bed, restrained his arms behind his back and stood him up. {See id. at 139:12-140:10). Staff members then walked him down the hall. {See id. at 140:12-14; 147:5-9). Plaintiff walked under his own power. {See id. at 139:2-4; 141:1-6; 147:13-15). Plaintiff admits that staff members did not use any more force than was required to move Plaintiff out of his room. Regarding the July 6 incident, Plaintiff stated that staff “did not use any more force than was called for for [sic] the purpose of moving me out of the room.” {Id. at 160:13-17). Regarding the July 8 incident, Plaintiff responded that he “d[idn’t] believe” that staff used “more force ... than was needed to move [him] from [his] room.” {Id. at 161:1-4). He further admits that he was not injured. {Id. at 112:21-113:17; 144:4-6).

Thus, Plaintiffs own admissions establish that Plaintiff resisted leaving his room, requiring the use of force; Defendants did not use more force than was necessary to effectuate this goal; and Plaintiff was not injured. Moreover, Plaintiff was moved because of a policy prohibiting patients from staying in their rooms during Mall Treatment hours because of security concerns. The force applied in these incidents did not violate the Constitution.

(3) The July 21, 2005 Incident

According to Plaintiff, in the July 21 incident, one staff member held each of his arms and a third staff member “lift[ed] [Plaintiff] from [his] shorts because [he] was completely limp at the time.” {Id. at 165:9-16). This caused pain to his genitals. (Plaintiffs SUF at 2, ¶ 5). Plaintiff asserts that his feet and toes were stepped on. (Endsley Depo. at 165:19-20; Plaintiffs SUF at 2, ¶ 5). Plaintiff states he was “completely limp” because he “wasn’t going to make it easy for them to take him” to the Refusal Room. {Id. at 166:1-8). He admits that he was not intentionally hurt, there was no lasting pain, and there was no injury. {Id. at 112:21-113:17; 166:12-21). Plaintiff admits that staff did not use more force than was needed to carry him. {Id. at 166:22-24).

Again, Plaintiffs own admissions establish that there was no excessive force. Plaintiff refused to leave his room. He resisted by going limp, forcing Defendants to carry him from his room to the Refusal Room. This was pursuant to a rule intended to provide security for patients and staff. He was not injured, and Defendants used only the force necessary to effectuate the rule.

(4) The July 22, 2005 Incident

On July 22, 2005, after Plaintiff refused to leave his room he was led away with his arms restrained behind his back in a manner that caused him pain. (Id. at 167:4-168:10). When he complained of the pain and received no response, Plaintiff went limp, which caused Defendants to drop him on the floor. (Id. at 167:18-24; 168:19-169:9). Plaintiff asserts he was not dropped intentionally. (Id. at 169:8-12). Plaintiff was not injured and suffered no lasting pain after the incident. (Id. at 112:21-113:17; 168:13-15). As above, the modest force used on Plaintiff was necessitated by his resistance to a legitimate rule providing for institutional security. Plaintiff admits that he caused staff members to drop him by “going limp.” Plaintiff was not injured. The use of force was reasonable.

(5) The July 25, 2005 Incident

On July 25, 2005, Defendant Bellamy and two other hospital employees pulled Plaintiff from a prone position in his bed to a seated position and then to a standing position. (Id. at 171:9-172:6). Plaintiffs hands were behind his back. (Id. at 172:7-8). Plaintiff complained of pain, “resisted being moved,” and “tried to pull away from them” by “twisting.” (Id. at 172:11-18; 174:6-8). In response, the staff members pushed him against a wall and began dragging him down the hallway. (Id. at 172:19-20). Plaintiff did not go willingly and continued resisting, “again attempting] to twist and get out of their grasp.” (Id. at 172:20-173:3; 177:25-178:1). Although Plaintiff asserts he did not swing at anyone (id. at 175:1-3; 179:6-7), he admits that “it could be construed [he] was trying to pull [his] arm out of their grasp,” and that “they could have interpreted it as a swing” (id. at 174:23-25; 175:6-12). In the face of this further resistance, the staff members pushed Plaintiff to the ground on his stomach and reported an emergency. (Id. at 173:4-6; 179:3-6; 179:10-12). More staff members arrived, and Plaintiff was put on a gurney and placed in five-point restraints. (Id. at 173:6-8; 173:16-18; 180:11-23). He was then sedated. (Id. at 173:18-20; see also Plaintiffs SUF at 2, ¶ 7).

Although the force used in this incident was greater than that used in any of the previous incidents, it still was not constitutionally excessive. Plaintiff admits to continually resisting. He admits that the staff could reasonably have believed he swung at them. He admits that the staff did not intend to hurt him. (Id. at 171:25-172:2). He admits that the staff used no more force than was necessary to gain control of him. (Id. at 176:21-177:2; 180:6-10). He admits the staff did not injure him. (Id. at 112:21-113:17; 180:6-7). Under these circumstances, it is clear that the force used was reasonably necessary to restore security and order.

Thus, Plaintiff has failed to demonstrate that he is entitled to judgment as a matter of law on his excessive force claims. Defendants, however, have shown that there is no genuine issue of material fact that would preclude granting summary judgment in their favor on these claims.

4. Even If Defendants Monroe, Ar-mas-Carl, And Bellamy Applied Constitutionally Excessive Force, They Are Entitled To Qualified Immunity Because It Was Not Clear That Their Actions Violated Clearly Established Law

As noted above, the Ninth Circuit recognized in Hydrick that the contours of the Fourteenth Amendment’s protections against excessive force were ill-defined, and that the Eighth Amendment provided a “floor for the level of protection” that civil committees must be provided. Hydrick, 500 F.3d at 998. For the purposes of qualified immunity analysis, then, the Eighth Amendment provides the “clearly established” contours of protection against excessive force. Id. at 988 (“[T]he rights afforded prisoners set a floor for those that must be afforded [civilly-committed persons], and ... where the [defendants violate a standard that is clearly established in the prison context, the violation is clearly established [in the context of the civilly committed].”). The Eighth Amendment prohibits only “unnecessary and wanton force.” Id. at 998. “ ‘[T]he question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Marquez v. Gutierrez, 322 F.3d 689, 692 (9th Cir.2003) (quoting Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)).

In each of the incidents discussed above, staff members attempted, through the use of physical force or threat of force exerted on Plaintiff or on furniture on which he was reclining, to cause Plaintiff to obey the rules of the institution. In every case, this physical force or threat of force was motivated by Plaintiffs resistance. Plaintiff was not injured. In four of the five incidents in which physical force was actually used on him, Plaintiff admits that the staff members used no more force than was necessary to move him. Under these circumstances, it would not be clear to a reasonable psychiatric hospital staff member that his actions were unlawful under the Eighth Amendment standard prohibiting the application of force maliciously and sadistically for the very purpose of causing harm. Accordingly, Defendants are entitled to qualified immunity.

D. Defendants Are Entitled To Summary Judgment On Plaintiff’s Conditions Of Conñnement Claims

1. Plaintiffs Claims

Plaintiff claims that the Refusal Room conditions amounted to punishment. He claims that Defendants intentionally and maliciously overcrowded the room. (Plaintiffs SUF at 3, ¶ 14; see also TAC at 14, ¶¶ 55-58). He further asserts that the conditions were unsanitary, asserting that the floors were grimy and the walls had “dried phlegm or mucus” on them. (Plaintiffs SUF at 3, ¶ 14; see also TAC at 14, ¶¶ 55-58). Plaintiff also asserts that, on two occasions, he and other patients were forced to watch a video “repeated over and over” (Plaintiffs SUF at 3, ¶ 15; see also TAC at 14, ¶¶ 56, 58). He alleges that Defendant Birks twice “rang a radio” in his ear while he tried to sleep in the Refusal Room. (TAC at 14, ¶ 59; Plaintiffs SUF at 3, ¶ 16). Finally, he claims that he was deprived of his property while in the Refusal Room because under hospital policy patients’ rooms were locked during Mall Treatment hours. (TAC at 14, ¶¶ 53, 62, 63; Plaintiffs SUF at 3, ¶ 13).

2. Applicable Law

As noted above, the Fourteenth Amendment, rather than the less protective Eighth Amendment, applies to challenges to conditions of confinement brought by civilly committed persons. See Jones v. Blanas, 393 F.3d 918, 931 (9th Cir.2004) (recognizing that detainees who have not been convicted are entitled to a “more protective fourteenth amendment standard”); see also Hydrick, 500 F.3d at 998. Under the Fourteenth Amendment, a civilly-committed person may be subjected “to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment or otherwise violate the Constitution.” Bell, 441 U.S. at 536-37, 99 S.Ct. 1861.

“For a particular government action to constitute punishment, (1) that action must cause the detainee to suffer some harm or ‘disability,’ and (2) the purpose of the governmental action must be to punish the detainee.” Demery v. Arpaio, 378 F.3d 1020, 1030 (2004). For a “harm or disability” to be cognizable under the constitution, it “must either significantly exceed, or be independent of, the inherent discomforts of confinement.” Id. In the Ninth Circuit, the second prong of the test can be demonstrated by showing that the conditions are “expressly intended to punish” or that the conditions serve a non-punitive purpose but are excessive in relation to that purpose. Jones, 393 F.3d at 932. As noted above, “[Ilegitímate non-punitive governmental objectives include ‘maintaining security and order’ and ‘operating the [detention facility] in a manageable fashion.’ ” Pierce, 526 F.3d at 1205. Because the Fourteenth Amendment standard is “amorphous,” courts may look for guidance to cases analyzing conditions of confinement under the Eighth Amendment. See, e.g., Conn v. City of Reno, 591 F.3d 1081, 1094 & n. 3 (9th Cir.2009) (as amended); Hydrick, 500 F.3d at 998. Under the Eighth Amendment, conditions of confinement constitute cruel and unusual punishment if a person is “deprived of the minimum civilized measure of life’s necessities” and a state actor “acted with deliberate indifference to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998).

3. There Is No Genuine Issue Of Material Fact As To Whether Plaintiffs Conditions Of Confinement Violate The Constitution

The conditions at Patton about which Plaintiff complains neither amount to punishment nor otherwise violate the Constitution.

a. Alleged Crowding In The Refusal Room

Plaintiff asserts that at times patients in the Refusal Room were “so compacted together as to be shoulder-to-shoulder.” (Endsley Decl. at 3, ¶ 11). However, Plaintiffs assertions of overcrowding do not rise to the level of a harm or disability with which the Constitution is concerned. See Bell, 441 U.S. at 539 n. 21, 99 S.Ct. 1861 (“There is, of course, a de minimis level of imposition with which the Constitution is not concerned.”) (internal quotation marks omitted). As the Supreme Court noted in Bell, some crowding and loss of freedom of movement is one of the inherent discomforts of confinement. Bell, 441 U.S. at 536, 542, 99 S.Ct. 1861; see also Demery, 378 F.3d at 1030 (noting that Bell determined that “the additional discomfort of having to share the already close corners with another detainee was not sufficiently great to constitute punishment”). Moreover, the alleged overcrowding in the Refusal Room was a condition to which Plaintiff was exposed for at most four hours per day, and only when he refused to attend Mall Treatment. (See, e.g., Benson Decl. at 7, ¶ 19) (explaining that Mall Treatment occurred for two hours in the morning and two hours in the afternoon); id. at 8-9, ¶ 23 (stating that patients refusing Mall Treatment were required to go to the Refusal Room during Mall Treatment hours). In Bell, the Supreme Court held that crowding was not a constitutional violation in part because “[djetainees are required to spend only seven or eight hours of each day in their rooms .... During the remainder of the time, the detainees are free to move between them rooms and the common area.” Bell, 441 U.S. at 543, 99 S.Ct. 1861; see also Delgado v. Cady, 576 F.Supp. 1446, 1456 (E.D.Wisc.1983) (“As a temporary response to a situation created by the inmates own actions, ... [triple celling] does not constitute a constitutional violation.”).

Even if the crowding were to constitute more than a de minimis harm, there is no evidence that the condition was intended to punish or was excessive in relation to a non-punitive purpose. Jones, 393 F.3d at 932. Plaintiff offers only a bare allegation that unnamed staff members intentionally overcrowded the Refusal Room to “annoy” patients. (Plaintiffs MPSJ at 14). This bare allegation neither supports Plaintiffs motion for summary judgment nor creates a genuine issue of material fact on the issue of punitive intent. See Nelson v. Pima Cmty. College, 83 F.3d 1075, 1081-82 (9th Cir.1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.”). Nor is there any evidence that the crowding in the Refusal Room was excessive in relation to a non-punitive purpose. Rather, the uncontroverted evidence demonstrates that the rule requiring patients to be present in the Refusal Room during Mall Treatment hours was implemented to maintain security and order in the institution. (See Section V.C. 3, supra). Mall Treatment required the use of many rooms. Locating rooms to use for treatment was difficult because of a lack of unused space. (Armas-Carl Decl. at 2-3, ¶ 5; Loyarte Decl. at 3, ¶ 6). Issues regarding space also constrained the options for location of the Refusal Room. (Armas-Cari Decl. at 3, ¶ 7). Thus, to the extent that the Refusal Room was small for the number of patients it accommodated, this was necessitated by the physical constraints of the hospital. There is no genuine issue of material fact as to whether crowded conditions in the Refusal Room constituted punishment in violation of the Constitution. See Bell, 441 U.S. at 540, 99 S.Ct. 1861 (“The government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational necessities may require administrative measures that go beyond those that are, strictly speaking, necessary [to secure the objective of the detention].”).

b. Sanitation In The Refusal Room

Plaintiff asserts that the floor of the Refusal Room was grimy; that the walls were stained with phlegm or mucus; and that on occasion he was confined while ill or with other patients who were “sick with a cold or flu.” (See Endsley Depo. 182:4-8). The conditions complained about do not rise to the level of a constitutional violation. In Sain v. Wood, 512 F.3d 886 (7th Cir.2008), the Se