Filed 6/18/26 Allen v. State of Cal. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
DAVID ALLEN,
F089260, F089988
Plaintiff and Appellant,
(Super. Ct. No. 19CECG02841)
v.
STATE OF CALIFORNIA, et al., OPINION
Defendants and Respondents.
APPEALS from a judgment and order of the Superior Court of Fresno County.
Daniel J. Brickey and Jeffrey Y. Hamilton, Jr., Judges.
David Allen, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown, Maureen C. Onyeagbako, and Grant Lien, Deputy Attorneys General,
for Defendants and Respondents.
-ooOoo-
Plaintiff David Allen appears to be a pre-adjudication civil detainee proceeding in
pro per in this civil rights action filed pursuant to section 1983 of title 42 of the United
States Code. Allen challenges the California regulations that prohibit internet use and
personal possession of certain electronic devices by certain detained individuals. He
contends the regulations are unconstitutional and contends that the regulation prohibiting
the possession of electronic devices was implemented without legal authority.
The trial court1 sustained a demurrer to Allen’s Fifth Amended Complaint without
leave to amend. A different judge of the superior court2 then ordered the case dismissed
under Code of Civil Procedure section 583.310 because Allen did not bring the matter to
trial within five years. The judge who sustained the demurrer then entered a judgment for
the defendants upon the order sustaining the demurrer.
Allen filed two notices of appeal, one from the judgment and one from the
unsigned minute order reflecting the dismissal of the case for failure to bring the matter
to trial within five years. The notices of appeal were docketed under separate case
numbers, but on October 17, 2025, the appeals were consolidated at Allen’s request.
Allen contends the trial court erred in sustaining the demurrer as to all but one of
his causes of action without leave to amend. We disagree. Under the governing
substantive law, Allen’s complaint fails to state cognizable causes of action and cannot be
cured by amendment. We affirm the judgment on this basis and thus need not address
Allen’s claim that the dismissal under the five-year rule was erroneous.
BACKGROUND
Based on the operative complaint, Allen appears to be a civil detainee at Coalinga
State Hospital (“CSH”) facing commitment as a sexually violent predator (“SVP”) under
California’s Sexually Violent Predator Act (“SVPA”). (Welf. & Inst. Code, § 6600 et
seq.) In 2003, the Department of State Hospitals (“DSH”) enacted section 891 of title 9
of the California Code of Regulations (section 891). Section 891 states, “Non-LPS
patients shall not have access to the internet.”3
1 Judge Jeffrey Y. Hamilton, Jr.
2 Judge Daniel J. Brickey.
3 “ ‘Non-LPS’ means that the placement in or commitment to the facility is
pursuant to legal authority other than the Lanterman-Petris-Short (LPS) Act, commencing
2.
On October 26, 2009, the DSH enacted section 4350 of title 9 of the California
Code of Regulations (section 4350). (Williams v. Price (E.D. Cal. July 29, 2020,
No. 1:18–cv–00102–NONE–SAB (PC)) 2020 WL 4350089, at p. *1 (Williams).) At that
time, as relevant here, section 4350 stated:
“Electronic devices with the capability to connect to a wired …
and/or a wireless … communications network to send and/or receive
information are prohibited, including devices without native capabilities
that can be modified for network communication…. Some examples of the
prohibited devices include desktop computers, laptop computers, cellular
phones, electronic gaming devices, personal digital assistant (PDA),
graphing calculators, and radios (satellite, shortwave, CB and GPS).”
(Williams, at p. 1.)
On December 22, 2017, the DSH issued a Notice of Emergency Amendments and
Findings of Emergency for section 4350. (Williams, supra, 2020 WL 4350089, at p. *1.)
An additional notice was issued around January 10, 2018. In relevant part, the amended
section 4350 states:
“(a) [P]atients are prohibited from having personal access to,
possession, or on-site storage of the following items:
“(1) Electronic devices with the capability to connect to a wired …
and/or a wireless … communications network to send and/or receive
information including, but not limited to, the following:
“(A) Desktop computers; laptop computers, tablets, single-board
computers or motherboards such as “Raspberry Pi;” cellular or satellite
phones; personal digital assistant (PDA’s); graphing calculators; and
satellite, shortwave, CB and GPS radios.
“(B) Devices without native capabilities that can be modified for
network communication. The modification may or may not be supported
by the product vendor and may be a hardware and/or software configuration
change.
with Section 5000, of Part 1, Division 5 of the Welfare and Institutions Code.” (Cal.
Code Regs. tit. 9, § 881(o).) The LPS Act “governs involuntary treatment of the mentally
ill in California.” (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 159.)
3.
“(2) Digital media recording devices, including but not limited to
CD, DVD, Blu-Ray burners.
“(3) Voice or visual recording devices in any format.
“(4) Items capable of patient-accessible memory storage, including
but not limited to:
“(A) Any device capable of accessible digital memory or remote
memory access.
“(B) Recordable disks, including but not limited to CDs, DVDs, Blu-
Ray, and CD-ROM.
“(C) Universal Serial Bus (USB) devices, also known as flash drives
or thumb drives.
“(D) Hard drives, subscriber identity module (SIM) cards, secure
digital (SD) drives or cards, micro-secure digital drives or cards (MicroSD),
compact flash drives, secure digital high capacity (SDHC), secure digital
extended capacity (SDXC), and other similar insertable memory devices.
“(E) Gaming devices with digital memory storage ability, the ability
to access the Internet, or the ability to play games or other media or access
date not specifically designed for the device[,] or only able to be played on
that particular gaming device[,] as provided by an approved third-party
vendor.
“(F) Floppy disks, hard disks, and vertical helical scan or video
home system (VHS) cassettes.
“(b) Electronic items that do not conflict with subsection (a) that
patients are permitted to possess or have personal access to include:
“(1) One (1) television or computer monitor; one (1) DVD, Blu-ray,
or similar player; one (1) CD player; and one (1) radio or music player.
These items shall not have Internet, external communication, or wireless
communication capability.
“(2) No more than thirty (30) commercially manufactured and
unmodified CDs, DVDs, and Blu-Rays received in factory-original
packaging in a patient’s room or unit storage. Patient may store additional
manufactured and unmodified CSs, DVDs, and Blu-Rays in off-unit
storage.
4.
“(3) Tablets or other devices designed for confined individuals
through authorized vendors of the Department of State Hospitals and
California Department of Corrections and Rehabilitation.”
Patients were provided an “amnesty/grace period” from January 19, 2018, to
January 28, 2018, to voluntarily relinquish their prohibited electronic devices.4 During
this period, patients could place prohibited devices into “amnesty bins” for collection and
destruction; patients would not be criminally charged for possessing the devices or for
anything contained in the devices. Patients could also turn in their prohibited devices
during this period to be searched and mailed to a person of their choice. Patients
choosing to have their items mailed out would have to sign a consent for search form, and
they would be criminally charged for illegal content on their devices.
Allen filed this action on August 5, 2019. He filed the operative Fifth Amended
Complaint on March 20, 2024, alleging his constitutional rights were violated by
section 891 and the amended version of section 4350. The defendants were the State of
California, DSH, the current and former directors of DSH and executive directors of
CSH, the DSH chief of police services, and five staff members at CSH.
Allen alleged that he possessed electronic devices that became contraband upon
amended section 4350’s implementation. During the amnesty period, he presented
noncompliant electronic devices to CSH staff on two days. Both times he signed a form
giving consent for his devices to be searched. He alleged he was coerced into signing
both waivers. It is unclear if he requested his devices to be mailed to a person of his
designation, if he elected for his devices to be destroyed, or if the devices were handled
some other way. He also does not say whether his devices were searched.
4 One of the memorandums said the period began January 18 and the other said it
began January 19.
5.
He asserts that sections 891 and 4350 violate his First Amendment rights to free
speech and expression as he is unable to use the internet to publicly express his opinion
on issues of general concern, including political issues.
He asserts two claims under the Fourteenth Amendment. First, he claims
section 4350’s ban on wireless-capable devices creates unconstitutional conditions of
confinement. He alleges that while section 4350 was amended to combat an increase in
patient trading of child pornography, he has never been convicted of crimes against
children or of crimes involving use of the internet. As for his second Fourteenth
Amendment claim, he asserts that the defendants acted with “deliberate indifference.”5
He asserts a cause of action under the Fourth Amendment, contending his rights
were violated when he was forced to sign a consent waiver for the search of his devices.
As for his last claim, he asserts the defendants lacked statutory authority to implement
section 4350 against SVPs.
All his federal constitutional claims were brought under section 1983 of title 42 of
the United States Code. He also cited the California Constitution’s corollaries to the
federal constitutional provisions as bases for his First and Fourth Amendment claims.
The demurrer
Defendants demurrered to the Fifth Amended Complaint. They asserted none of
Allen’s constitutional claims, under either the state or federal constitution, are cognizable
because “civil detainees do not have a right to a computer or electronic devices and their
rooms are subject to random searches in the interests of institutional security.”
Defendants also asserted the federal constitutional claims were barred by qualified
immunity. They also contended Allen’s ultra vires claim was not cognizable because
5 This second Fourteenth Amendment cause of action is incomprehensible; we
cannot discern what Allen is trying to allege. In any event, he does not appeal the
sustaining of the demurrer as to this cause of action.
6.
section 4350 was implemented under statutory authority that Allen ignores. Allen
opposed the demurrer.
The trial court sustained the demurrer without leave to amend on October 24,
2024, finding (1) that Allen had not alleged facts to demonstrate constitutional violations,
and (2) that the ultra vires claim was not cognizable because there was clear statutory
authority for section 4350’s implementation. The court also found that the federal
constitutional claims were barred by qualified immunity.
The five-year dismissal
On November 19, 2024, Judge Brickey held a case management conference, at
which the parties did not appear. Judge Brickey issued an order sua sponte dismissing
the case under Code of Civil Procedure section 583.310 without prejudice because Allen
failed to bring the case to trial within five years. The order was recorded in an unsigned
minute order. The judge was apparently unaware that Judge Hamilton previously had
sustained the demurrer to the Fifth Amended Complaint without leave to amend and
ordered defendants to submit a proposed judgment of dismissal.
On December 16, 2024, Judge Hamilton entered judgment in favor of defendants,
specifically referencing the order sustaining the demurrer without leave to amend.
Notices of appeal
On January 21, 2025, Allen filed a notice of appeal, stating he was appealing from
the unsigned minute order dismissing the case for failing to bring it to trial in five years.
This appeal was docketed under case no. F089260.
On June 12, 2025, he filed another notice of appeal, this one appealing from the
judgment. This appeal was docketed under case no. F089929.
On October 17, 2025, we ordered the appeals consolidated under case
no. F089260.
7.
DISCUSSION
Allen contends the trial court erred in sustaining the demurrer to all but one of his
causes of action without leave to amend; he does not challenge the trial court’s ruling as
to his Fourteenth Amendment “deliberate indifference” claim. He also challenges the
court’s order dismissing his case for failing to bring it to trial in five years. We conclude
the trial court did not err in sustaining the demurrer without leave to amend, and we
therefore need not address Allen’s claim regarding the five-year dismissal.
I. Basic law and standard of review
A demurrer tests the legal sufficiency of the challenged pleading. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318; Milligan v. Golden Gate Bridge Highway &
Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) The judgment of dismissal after a
sustained demurrer must be affirmed if the challenged pleading fails to plead an essential
element or if the allegations disclose some defense or bar to recovery. (Brown v.
Crandall (2011) 198 Cal.App.4th 1, 8.) We are to affirm if any of the grounds for
demurrer raised by respondent is well taken and disposes of the causes of action of the
complaint pending before us. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
967.)
We accept as true all material facts properly pleaded in the complaint, but do not
assume the truth of contentions, deductions, or conclusions of fact and law. (Estate of
Holdaway (2019) 40 Cal.App.5th 1049, 1052; Dudek v. Dudek (2019) 34 Cal.App.5th
154, 163.) “We give the complaint a reasonable interpretation and treat the demurrer as
admitting all material facts properly pleaded that are not inconsistent with other
allegations, exhibits, or judicially noticed facts.” (Morris v. JPMorgan Chase Bank, N.A.
(2022) 78 Cal.App.5th 279, 292.)
“Sustaining a demurrer without leave to amend is proper ‘ “where the facts are not
in dispute, and the nature of the plaintiff’s claim is clear, but, under the substantive law,
8.
no liability exists.” ’ ” (Regents of University of California v. Superior Court (2024) 102
Cal.App.5th 852, 864.)
II. First Amendment claim
Allen argues he has pleaded a cognizable claim that his freedom of expression
under the First Amendment and article 1, section 2(a) of the California Constitution is
violated by his denial of access to the internet. Since his analysis discusses only First
Amendment precedent, we will analyze his claim under First Amendment principles
only. We reject his argument for the reasons stated below.
The First Amendment states, in relevant part, “Congress shall make no law …
abridging the freedom of speech.” (U.S. Const., 1st Amend.) The Supreme Court has
recognized that “ ‘convicted prisoners do not forfeit all constitutional protections by
reason of their conviction and confinement.’ ” (O’Lone v. Estate of Shabazz (1987)
482 U.S. 342, 348.) Although prisoners retain First Amendment rights while
incarcerated, the exercise of such rights is limited by the fact of confinement and the
“legitimate goals and policies of the penal institution[.]” (Bell v. Wolfish (1979)
441 U.S. 520, 545–546 (Bell).) Challenges to prison restrictions that are asserted to
inhibit First Amendment interests must be analyzed in terms of those legitimate policies
and goals of the institution. (Pell v. Procunier (1974) 417 U.S. 817, 822.) Similarly,
“civilly committed persons retain those First Amendment rights not inherently
inconsistent with the circumstances of their detention.” (Hydrick v. Hunter (9th Cir.
2007) 500 F.3d 978, 991.)
Here, Allen is prohibited from accessing the internet or owning certain electronic
devices. We are unaware of any court that has found that an SVP has a First Amendment
right to possess and use electronic devices or access the internet. (Johanneck v. Ahlin
(E.D. Cal. Feb. 21, 2018, No. 1:18–cv–00051–LJO–MJS (PC)) 2018 WL 1014454, at
pp. *12–13; Telucci v. Withrow (E.D. Cal. May 19, 2016, No. 1:16–cv–00025–JLT (PC))
2016 WL 2930629, at p. *5 [finding no First Amendment right to the internet for civil
9.
detainees; Carmony v. Cty. of Sacramento (E.D. Cal. Feb. 13, 2008, No. CIV S–05–1679
LKK GGH P) 2008 WL 435343, at p. *18 [finding civil detainee had no “free-standing
First Amendment right to access computers and/or the internet.”].)
Even if Allen had a First Amendment right to the electronic devices prohibited by
section 4350 and the internet, there is a reasonable connection between the prohibition of
those things and a legitimate government interest in ensuring the security of the public
and the facility. (Allen v. King (9th Cir. 2018) 741 F.App’x 463, 464 [holding that CSH
had legitimate interest in preventing illicit activity, such as accepting or sharing child
pornography and that “Section 4350’s ban on patients’ personal possession of wireless-
capable electronic devices is reasonably related to [the] legitimate interest in preventing
patients from using such devices for illicit purposes.”].) In promulgating amendments to
section 4350 and restricting internet access and certain electronic devices, DSH has
asserted that the regulations are necessary for reasons beyond stemming the flow of child
pornography into and out of CSH. DSH stated that internet access provides “aerial views
of DSH facilities, communication with victims, [and] communication to create additional
victims[.]” This “creates danger for the public, the staff, and patients[.]” (CSH Notice of
Emergency Amendments and Finding of Emergency for 9 CCR 4350, Jan. 10, 2018.)
Allen fails to state a cognizable First Amendment claim, and under governing law
he cannot amend his complaint to state a viable claim. Accordingly, sustaining the
demurrer without leave to amend is warranted.
III. Fourteenth Amendment claim
Allen also alleges that section 4350’s ban on patient possession of devices capable
of connecting to the internet is punitive in violation of the Fourteenth Amendment.
Civilly committed persons have a substantive due process right under the
Fourteenth Amendment to be free from restrictions that amount to punishment. (United
States v. Salerno (1987) 481 U.S. 739, 746–747.) “There is no constitutional
infringement, however, if restrictions are ‘but an incident of some other legitimate
10.
government purpose.’ ” (Valdez v. Rosenbaum (9th Cir. 2002) 302 F.3d 1039, 1045.)
For restrictions to be permissible, they must (1) have a legitimate, non-punitive purpose
and (2) not appear excessive in relation to that purpose. (Bell, supra, 441 U.S. at
pp. 538–539.) Restrictions imposed on SVPs need not be the least intrusive or those that
the court agrees with as long as they advance a legitimate interest in the hospital.
(Valdez, at p. 1046; citing Bell, at pp. 547-548 [“Such considerations are peculiarly
within the province and professional expertise of corrections officials” as long as the
determinations are not an exaggerated response to the considerations.].)
Documents contained in Allen’s request for judicial notice in support of his
opposition to the demurrer to his fifth amended complaint establish that some CSH SVPs
have used personally possessed electronic devices to access and share child pornography
or engage in other illicit activities such as contraband trafficking. As we just explained,
CSH has a legitimate interest in preventing such illicit activity. Section 4350’s ban on
personal possession of the prohibited devices is reasonably related to CSH’s legitimate
interest in curbing the institutional problem of patients using such devices to access and
share child pornography and engage in other illegal activities.
Even if Allen had never committed any offenses involving children or the internet,
and thus there was no reason to individually deny him access to the internet or internet-
capable devices, the facts as presented in documents he submitted in support of his
opposition to the demurrer reflect that patient access to these things has allowed for the
re-victimization of children due to illegal sharing of pornography, plus the trafficking of
other contraband. Allen presents no facts to suggest that non-abusive inmates can be
provided access to the internet or internet-capable devices without interfering with the
overall security of the facility.
Under governing law, Allen cannot state a cognizable Fourteenth Amendment
substantive due process claim, and thus the trial court correctly sustained the demurrer as
to this claim without leave to amend.
11.
IV. Fourth Amendment claim
Allen alleges his rights under the Fourth Amendment and article 1, section 13 of
the California Constitution were violated by his being forced to consent to a search of his
prohibited electronic devices. His argument proceeds under Fourth Amendment
principles only, so we limit our analysis to those principles.
The Fourth Amendment provides that “the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated[.]” (U.S. Const. 4th Amend.) “Warrantless searches ‘are per se unreasonable
under the Fourth Amendment—subject only to a few specifically established and well-
delineated exceptions.’ ” (People v. Lopez (2019) 8 Cal.5th 353, 359.) The warrant
requirement generally applies to searches of electronic devices. (People v. Patton (2019)
41 Cal.App.5th 934, 946.)
One exception to the warrant requirement for conducting a search of a person or
their property is the person’s consent to the search. (People v. Alvarez (2023)
98 Cal.App.5th 531, 546.) “To establish this exception, the state must prove that the
consent was freely and voluntarily given.” (Ibid.)
Allen’s Fourth Amendment claim is not cognizable on the facts alleged. As we
have explained, section 4350 is not unconstitutional. This section made his wireless-
capable devices contraband, and he has no right to possess contraband within the
institution. (Welf. & Inst. Code, § 7295.) According to the complaint, CSH gave Allen
two options: he could surrender the device for destruction without any review of its
contents, or he could elect to have the device mailed to a person outside the facility upon
consenting to a search of its contents. Allen alleges he consented to the search. But
because the complaint also alleges that he could have chosen destruction without a
search, the pleaded facts do not establish that his consent was coerced or that the hospital
compelled a search. The complaint therefore fails to state a Fourth Amendment
12.
violation. Because the nature of the challenged amnesty provision of section 4350
forecloses any viable coercion theory on these facts, leave to amend was properly denied.
V. Ultra vires claim
DSH cited Welfare and Institutions Code sections 4005.1 and 4027 as their
statutory authority for promulgating section 4350. Allen alleges that the “State of
California” and DSH exceeded the scope of their legal authority under Welfare and
Institutions Code section 4027 in promulgating section 4350.
Welfare and Institutions Code section 4027 provides that DSH “may adopt
regulations concerning patients’ rights and related procedures applicable to the inpatient
treatment of … mentally disordered sex offenders[.]” Allen argues this statute does not
give the defendants the power to enact section 4350 against SVPs and pretrial SVPs
because such patients are not “mentally disordered sex offenders.”
However, Allen does not address Welfare and Institutions Code section 4005.1.
That section states that DSH “may adopt and enforce rules and regulations necessary to
carry out [its] duties under this division.” (Welf. & Inst. Code, § 4005.1.) The division
to which that section refers is Division 4—Mental Health. (Ibid.) Under Division 4,
DSH is granted broad authority to promulgate regulations related to the care, custody,
and treatment of persons with mental health disorders in its custody (Welf. & Inst. Code,
§ 4011) and who are housed at state hospitals such as CSH (Welf. & Inst. Code, § 4100).
Thus, Welfare and Institutions Code section 4005.1 gives DSH the authority to enact
section 4350 regarding patients in his classification.
Allen’s ultra vires claim thus fails, and leave to amend cannot cure this defect.
13.
DISPOSITION
The judgment is affirmed. Allen’s requests for judicial notice are denied.6 The
parties shall bear their owns costs on appeal.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P. J.
DETJEN, J.
6 Allen filed requests for judicial notice on November 26, 2025, and February 20,
2026. He requested that we judicially notice his proposed sixth amended complaint,
which he did not submit for filing in the superior court, as well as various California
cases, statutes, and regulations. We deny Allen’s request to judicially notice his proposed
sixth amended complaint because he has not identified any basis for judicially noticing
this document. (See Evid. Code, § 452.) We deny his request to judicially notice the
various legal provisions because the request is unnecessary. (Evid. Code, § 451,
subd. (a).)
14.