213 F.R.D. 358

United States District Court, E.D. California.
Chris STEVENS, et al., Plaintiffs,

v.

Jerry L. HARPER and the California Youth Authority, Defendants.

No. CIV-S-01-0675 DFL PAN P.
Sept. 11, 2002.

Youths in custody of California Youth Authority (CYA) brought putative class action against CYA, seeking declaratory and injunctive relief regarding CYA policies and programs and asserting claims under the First and Fourteenth Amendments, the Americans with Disabilities Act (ADA), Rehabilitation Act, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). On defendants motion to dismiss and motion for partial summary judgment, and on plaintiffs' motion to certify class, the District Court, Levi, J., held that: (1) putative class failed to establish standing for claims seeking equitable relief; (2) most individual youth failed to establish sufficient likelihood of future injury; but (3) youth had standing to assert injunctive relief claims related to mental health treatment; (4) allegations supported youths' Rehabilitation Act and Americans with Disabilities Act (ADA) claims; (5) allegations supported youths claims that they were denied access to courts; (6) certification of class on ADA and Rehabilitation Act claims and access to courts claims would not be warranted; (7) class would be certified as to claims arising from alleged forced psychotropic medication, and inadequate sex-offender treatment programs, and forced lock-up without a hearing.
Motion granted in part and denied in part.
*363 Caroline N. Mitchell, Pillsbury, Winthrop, LLP, San Francisco, CA, Sidney Wolinsky, Disability Rights Advocates, Oakland, CA, Richard B. Ulmer, Jr., Latham and Watkins, Menlo Park, CA, for plaintiffs.
*364 Allen Robert Crown, Monica Noella Anderson, Attorney General's Office, Sacramento, CA, for defendants.
MEMORANDUM OF OPINION AND ORDER

LEVI, District Judge.
This case is a proposed class action under Fed.R.Civ.P. 23(b)(2) in which the plaintiffs ask the court to issue injunctive and declaratory relief against the California Youth Authority ("CYA") concerning a wide range of CYA policies and programs at all of the CYA's eleven correctional facilities. The nine named plaintiffs are currently incarcerated at six different CYA correctional facilities and assert claims based on the CYA's alleged violations of the First and Fourteenth Amendments, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., the Rehabilitation Act, 29 U.S.C. § 794, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1. [FN1]
FN1. Plaintiffs agreed at oral argument to voluntarily dismiss wards
Michael Resendiz ("Resendiz") and Randy Jones ("Jones") from this action. Accordingly, the claims of Resendiz and Jones are hereby dismissed.


Plaintiffs seek to bring a class action on behalf of all CYA wards to reform the CYA's policies, procedures, and practices in eleven broadly defined areas relating to: (1) the physical safety of wards, (2) the confinement of wards in lock-up units, (3) administrative lockdown procedures, [FN2] (4) the upkeep of the physical facilities, (5) discipline and segregation procedures, (6) medical and dental care, (7) mental health care, (8) educational and rehabilitative programming, (9) confidentiality of attorney-client communications, (10) the treatment of disabled wards, and (11) access to religious services and materials.
FN2. Administrative lockdown "is a program restriction of a group of wards, living units, or the entire facility due to an operational emergency that threatens the safety of wards and/or staff." (Second Amended Complaint ("SAC") at ¶ 48).


Defendants move to dismiss the majority of the named plaintiffs' individual claims on the grounds that the named plaintiffs lack standing to bring suit, do not allege sufficient imminent harm to entitle them to injunctive relief, and fail to plead legally sufficient claims. Defendants also move for summary judgment on the claims of Amy Stephens for lack of standing and mootness. Plaintiffs have filed a cross motion for class certification under Fed.R.Civ.P. 23(b)(2). Plaintiffs seek to certify a class consisting of "[a]ll wards under the jurisdiction of the CYA, who are at the time of the filing of this action, or will be during the pendency of the suit, confined at one of the CYA's eleven institutions." (Pls.' Mot. for Class Cert. at 1).
I. Factual Background
The California Youth Authority ("CYA") is a department of the California Youth and Adult Correctional Agency and administers the largest youth correctional system in the nation. [FN3] (Parks Decl. Ex. A). The statutory purpose of the CYA is "to protect society from the consequences of criminal activity" and to provide "correction and rehabilitation [to] young persons who have committed public offenses." Cal. Welf. & Inst.Code § 1700. The CYA currently houses over 6000 wards, ranging in age from 12 to 25, in eleven separate youth correctional facilities, four youth conservation camps, and two residential drug treatment programs located throughout the state of California. [FN4] (Parks Decl. Exs. B-E). The average age of CYA wards is 19 years old, and wards remain in the CYA's custody for an average of 29.3 months. (Id. Ex. D).
FN3. Defendant Jerry Harper is the current Director of the CYA and is
allegedly responsible for the "operation of all CYA staff and facilities, including decisions concerning budget[ing], staff deployment, programming, and staff training that directly affect plaintiffs and the plaintiff class." (SAC at ¶ 26).

FN4. Only the eleven CYA youth correctional facilities are at issue in this litigation.


The majority of CYA wards are committed to the CYA by a juvenile court through a wardship proceeding. See Cal. Welf. & Inst.Code §§ 602, 731; Spar Decl. at ¶ 2. However, a minority of wards (3.2% of the total ward population) are in CYA custody based on adult criminal convictions. (Spar Decl. at *365 ¶ 2). Approximately 120 wards have been directly committed to the CYA after conviction on adult criminal charges; another 80 wards have been transferred to the CYA by the California Department of Corrections. (Id.)
The nine plaintiffs in this case are currently housed in six of the CYA correctional facilities at issue in this litigation. Plaintiffs Arlon Carroll, Khalil Jindherd, Angel Martinez, David Owens, and Darren Striplin are incarcerated at the N.A. Chaderjian Youth Correctional Facility in Stockton, California ("Chaderjian"). (SAC at ¶¶ 10, 14, 18, 21, 25). Amy Stephens is confined at the Ventura Youth Correctional Facility ("Ventura"); Jermaine Brown is confined at the Fred C. Nelles Youth Correctional Facility in Whittier, California ("Nelles"); Chris Stevens is confined at the Northern Youth Correctional Reception Center and Clinic in Sacramento ("NYRCC"); and Raymon Davis is confined at the Herman G. Stark Youth Correctional Facility in Chino, California ("Stark"). (Id. at ¶¶ 5, 7, 12, 24). Plaintiffs Chris Stevens and Khalil Jindherd are both over 18 years of age and, unlike the other plaintiffs, are in CYA custody based on prior criminal convictions. (Shepard Decl. at ¶ 4).
II. Plaintiffs' Submissions
In support of their request for class certification and individual and classwide equitable relief, plaintiffs rely mainly on the unverified allegations in their amended complaint. Plaintiffs have not submitted any declarations or depositions to establish their entitlement to equitable relief or class certification, nor have they requested an evidentiary hearing to clarify these issues.
Instead, plaintiffs have provided the court with audit reports reviewing three of the eleven different CYA correctional facilities at issue in this lawsuit, including an October 2000 review of Stark, a February 2000 review of Preston, and a January 2001 review of Nelles. (Parks Decl. Exs. E-G). These audit reports are prepared by the state Inspector General's Office after an extensive evaluation of the correctional facility. They assess the individual facility's compliance with governing state statutes and the regulations outlined in the CYA's Institutions and Camps Branch Manual ("I & C Manual"), identify areas that need improvement, and recommend changes in policies and procedures for the facility's management to adopt. In addition, plaintiffs have submitted a December 3, 2001 letter from defendant Jerry Harper responding to an omnibus grievance filed on behalf the named plaintiffs as well as twenty-five other CYA wards by plaintiffs' counsel ("Harper Letter"). [FN5] (Parks Decl. Ex. I). The Harper Letter responds in detail to the wards' allegations of mistreatment, explaining the CYA's policies and procedures and the CYA's version of the events underlying the wards' complaints. (Id.) For the most part, the Harper Letter denies the wards' individual allegations of mistreatment as well as the plaintiffs' broad allegations of institutional mismanagement and operational failure. (Id.) Other than the three audit reports and the Harper Letter, plaintiffs have provided the court with no other materials that address the specific conditions of confinement faced by the named plaintiffs at the particular CYA facilities where they are currently housed.
FN5. Defendants argue that the Harper letter is an offer of compromise which is not admissible under Fed.R.Evid. 408. However, the letter makes no reference to settlement of claims. Defendants also argue
that the audit reports are confidential under a privilege created by Cal. Evid.Code § 1040. But plaintiffs bring claims under federal law, and accordingly, state privilege law does not apply, and defendants do not establish a privilege recognized by federal common law for the audit reports. See Fed.R.Evid. 501.


Plaintiffs also rely on general administrative and legislative materials that evaluate the CYA on an institution-wide level. For example, plaintiffs submit a July 5, 2001 report assessing the CYA's mental health care services ("Mental Health Report"). [FN6] (Id. Ex. N). The Mental Health Report reviews CYA procedures and practices in areas ranging from suicide prevention to staff recruitment and suggests ways in which the CYA can improve its provision of mental health care services. (Id.) Plaintiffs have also submitted *366 a transcript of a May 16, 2000 hearing before the California Senate and Assembly Committees on Public Safety regarding conditions at the CYA ("Joint Oversight Hearing Transcript"). (Id. Ex. H). The hearing involved testimony by eleven witnesses, including CYA executive officials, legal advocates for CYA wards, a former CYA ward, and the parent of a current CYA ward. The testimony focused on: (1) the prevalence of gang influence at CYA facilities and the wards' constant fear for their personal safety, (2) uneven and inadequate programming at some CYA institutions, and (3) the need for strong leadership and consistent policies at the CYA. (Id. Abstract of Hearing). However, plaintiffs have not provided the court with administrative materials that outline the CYA's current policies, procedures, and practices in many of the areas covered by their comprehensive class claims. [FN7]
FN6. The report was prepared by independent consultants at the CYA's request. (Mental Health Report at 3, Parks Decl. Ex. N).

FN7. Plaintiffs have submitted a table of contents of the CYA's current I & C Manual and limited sections of the I & C manual dealing with restriction of wards from religious programs and minimum requirements for wards in lockup units. (Parks Decl. Ex. O). Plaintiffs also rely on a May 2000 summary report compiled by the Department of Youth Authority Special Unit Lock-up/Redirect Program Committee that describes the CYA's lock-up policies and procedures. (Parks Decl. Ex. P).


Finally, plaintiffs submit newspaper articles identifying various abuses at the CYA. (Id. Exs. I-M). The most recent of these articles date from May 2000 and discuss the state investigation into the CYA, a probe that culminated in the May 16, 2000 fact-finding hearing before the Senate and Assembly Public Safety Committees. (Id. Exs. K, M).
III. Standing to Seek Equitable Relief
A. Constitutional and Equitable Requirements

In a proposed class action such as this one where the plaintiffs seek sweeping injunctive relief, questions relating to the named plaintiffs' standing and entitlement to equitable relief, the propriety of class certification, and the availability of systemwide relief will often overlap. See Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.2001), cert. denied, 537 U.S. 812, 123 S.Ct. 72, 154 L.Ed.2d 14 (2002). Although these inquiries may intersect, standing and entitlement to equitable relief are threshold jurisdictional requirements that must be satisfied prior to class certification. See Prado-Steiman v. Bush, 221 F.3d 1266, 1280 (11th Cir.2000) ("[A]ny analysis of class certification must begin with the issue of standing ... [o]nly after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others.").

There are two distinct components to the standing inquiry when a plaintiff requests prospective equitable relief. First, in order to satisfy the constitutional requirements for standing, the plaintiff must demonstrate a credible threat of future injury which is sufficiently concrete and particularized to meet the "case or controversy" requirement of Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); City of Los Angeles v. Lyons, 461 U.S. 95, 101-04, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). And second, to establish an entitlement to injunctive relief, the plaintiff must allege not only a likelihood of future injury, but also show an imminent threat of irreparable harm. The imminent threat showing is a separate jurisdictional requirement, arising independently from Article III, that is grounded in the traditional limitations on the court's power to grant injunctive relief. [FN8] See Lyons, 461 U.S. at 111, 103 S.Ct. 1660 (the preconditions for equitable relief, including the requirement that the plaintiff face a real and immediate *367 risk of personal harm, should not be slighted); Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042 (9th Cir.1999) (the court may not exercise jurisdiction over a suit for equitable relief unless the plaintiff demonstrates a likelihood of imminent and irreparable injury, a necessary prerequisite for such relief).
FN8. Plaintiffs must also establish a likelihood of imminent injury in order to present a ripe claim for declaratory relief. See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th Cir.1999) (explaining that "the ripeness requirement serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive
relief," and that "[t]he named plaintiffs' failure to establish a likelihood of future injury" will not only bar injunctive relief but also render "their claim for declaratory relief unripe."). Therefore, where the named plaintiffs fail to establish imminent injury for the purposes of injunctive relief, their related claims for declaratory relief must be dismissed as unripe.



"In general, injunctive relief is 'to be used sparingly, and only in a clear and plain case,' " especially when the court is enjoining the conduct of a state agency. Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir.2001) (quoting Rizzo v. Goode, 423 U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)), cert. denied, 534 U.S. 1066, 122 S.Ct. 667, 151 L.Ed.2d 581 (2001). The rigorous preconditions to such injunctions reflect both federalism and separation of powers principles. An injunction directed to a state agency ordered by a federal court affects the balance between the state and federal governments. See, e.g., Hodgers-Durgin, 199 F.3d at 1042, 1044 ("federalism concerns may compel greater caution ... in considering a request for injunctive relief" against a state entity).

Moreover, such an injunction may inject the court into broad administrative and legislative policymaking committed to other branches of government with superior competence. Because the role of the courts is limited to providing relief "to claimants, in individual or class actions who have suffered, or will imminently suffer, actual harm," whereas general questions of institutional management and reform must be left to the legislative and executive branches, plaintiffs must do more than allege that they are housed in a governmental institution that is "not organized or managed properly" to seek injunctive relief. Lewis v. Casey, 518 U.S. 343, 350-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Thus, the requirement that plaintiffs establish a particularized risk of imminent injury before seeking prospective relief ensures that federal courts refrain from intervening in the administration of state institutions absent a clearly defined legal dispute. See id. (if plaintiffs could invoke judicial intervention without a showing of imminent harm, the distinction between the adjudicative role of the courts and the managerial role of the executive branches "would be obliterated"). The requirement ensures that the plaintiffs may obtain actual redress from the court where necessary, while otherwise preserving the discretion of state executive and legislative officials to make policy and funding decisions based on their expertise and administrative priorities.

These concerns are particularly relevant in this case, because the CYA's policies and procedures have been subject to recent legislative and executive scrutiny. (Joint Oversight Hearing Transcript, Parks Decl. Ex. H). Plaintiffs rely heavily on these legislative and executive materials, such as internal CYA audit reports and oversight hearings by the California legislature, to support their claims and request for class certification. (Id. Exs. E-H). However, unless plaintiffs establish a personal risk of imminent harm, they may not ask the court to supplant the primary reform and oversight responsibilities of state legislative and executive officials by making generalized complaints of institutional failures at the CYA. See generally Lewis, 518 U.S. at 349-50, 116 S.Ct. 2174.

B. Reliance on Class Allegations to Demonstrate Standing and Imminent Harm

The burden of establishing standing as well as an entitlement to equitable relief lies squarely with the plaintiffs in this case. See, e.g., San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996) ("[a]s the parties invoking federal jurisdiction, plaintiffs bear the burden of establishing their standing to sue ... [b]ecause plaintiffs seek declaratory and injunctive relief only, there is a further requirement that they show a very significant possibility of future harm"). However, plaintiffs provide the court with minimal factual information concerning each named plaintiff's right to equitable relief. Nor are many of the claims for classwide equitable relief tightly connected to the present circumstances of the individual named plaintiffs.
The result is an unsettling disparity between the extraordinary breadth of the plaintiffs' claims, involving eleven broad areas of *368 alleged constitutional and statutory violations in eleven different CYA correctional facilities, and the amount of information which the plaintiffs have submitted concerning the alleged harm faced by the proposed class representatives. Plaintiffs do not purport to identify at least one named representative who has suffered the claimed injury at each of the correctional facilities involved in this suit. Rather, on an extreme interpretation of the Ninth Circuit's opinion in Armstrong v. Davis, 275 F.3d 849 (9th Cir.2001), cert. denied, 537 U.S. 812, 123 S.Ct. 72, 154 L.Ed.2d 14 (2002), plaintiffs are often content to simply allege one past violation at one CYA facility and then claim standing and imminent harm based upon a generalized allegation that the violation is systemwide, recurring, and similar to other problems that the plaintiffs also seek to correct.
This is not an adequate showing under Ninth Circuit law. In Hodgers-Durgin the court held that standing to seek equitable relief was not shown where plaintiffs alleged a single violation and then argued that other members of the class were likely to sustain future injury:
Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief. Any injury unnamed members of this proposed class may have suffered is simply irrelevant to the question whether the named plaintiffs are entitled to the injunctive relief they seek.
Hodgers-Durgin, 199 F.3d at 1045. In a different setting, the Armstrong court held that the likelihood of future injury necessary to establish standing to seek injunctive relief could be shown by demonstrating that the alleged harm arises from a specific written policy or from officially sanctioned behavior involving repeated violations. Armstrong, 275 F.3d at 861. Even if Armstrong somewhat softens the above quoted language of Hodgers-Durgin, it is at one with Hodgers-Durgin in reiterating that it is the plaintiff's burden to show a credible threat that he or she will be subject to the same or similar violation in the future. See id.
In Armstrong plaintiffs provided "overwhelming" evidence of repeated violations to themselves and other class members over a long period of time. Id. at 864. By contrast, in this case, as to the majority of their claims, plaintiffs fall far short of providing even minimally adequate evidence of repeated violations to themselves or to other wards. Indeed, plaintiffs often fail to allege a single past violation of the particular constitutional or statutory standard that they seek to assert.
Moreover, plaintiffs make an inadequate showing that future injury is probable because of the CYA's written or unwritten policies and practices. In the class portion of their complaint, plaintiffs list over fifty different CYA policies and practices that they allege are deficient. However, with few exceptions, the named plaintiffs fail to link their injuries to any particular policies or practices or allege that they will be directly affected by these policies or practices in the future. Compare Armstrong, 275 F.3d at 861 (allegations of class-wide discrimination were relevant to the named plaintiffs' risk of future harm, where named plaintiffs were all disabled prisoners, sentenced to life in prison without the possibility of parole, who challenged the state's failure to provide adequate accommodations at statutorily mandated parole hearings). Further, beyond bold assertion, plaintiffs do little to substantiate their claims that they are subject to unconstitutional practices and policies. [FN9]
FN9. Although more detailed allegations by the named plaintiffs are contained in the Harper Letter, these allegations are not tied to specific on-going CYA policies or procedures. (Parks Decl. Ex. I). Plaintiffs also rely on legislative testimony concerning institutional problems at the CYA. (Id. Ex. H). However, this testimony is focused on broad institutional concerns, such as the lack of adequate funding or strong leadership. The testimony does not help identify specific CYA policies and practices that can be linked to the named plaintiffs' asserted injuries. Nor does the testimony address the specific CYA facilities at which many of the named plaintiffs are currently incarcerated.


In the absence of specific factual allegations connecting the named plaintiffs' individual claims to particular CYA policies and procedures, the complaint's class allegations provide no additional insight into whether *369 the named plaintiffs face a sufficient individual likelihood of future injury to pursue equitable relief. See Haase v. Sessions, 835 F.2d 902, 911 (D.C.Cir.1987) ("more than a nebulous assertion of the existence of a 'policy' is required to establish standing;" the plaintiff must also show that he will be subjected to the policy again and that the threat of repetition is "sufficiently real and immediate" to justify equitable relief).
C. Defendants' Challenges to Standing

Although their arguments are not entirely clear, defendants appear to challenge the standing of the named plaintiffs on a number of different grounds, only the first of which is a true standing argument. First, defendants dispute the named plaintiffs' individual standing to challenge the numerous CYA policies and practices listed in the class portion of the amended complaint. [FN10] Defendants correctly argue that because plaintiffs "must demonstrate standing separately for each form of relief sought," the named plaintiffs must establish imminent injury traceable to each separate CYA practice that they seek to enjoin. Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also Lewis, 518 U.S. at 358 n. 6, 116 S.Ct. 2174 ("standing is not dispensed in gross" and is limited to the injury shown; a plaintiff who is injured by one administrative deficiency does not therefore obtain standing to challenge all similar deficiencies).
FN10. The amended complaint does not identify which plaintiffs assert standing to seek injunctive relief as to the numerous class claims. The motion for class certification does little to clarify the situation.


Second, defendants appear to contend that the plaintiffs' broad class definition should be limited, perhaps through subclasses, so that each facility would define a separate class of wards. However, this is a question of defining the appropriate class for each of the plaintiffs' claims and applying the typicality and commonality criteria of Fed.R.Civ.P. 23(a), inquiries distinguishable from the foundational question of standing. Finally, defendants make arguments about the appropriate scope of equitable relief in terms of standing. Again, however, the scope of available relief in the event that plaintiffs prevail on their class claims must be analyzed separately from jurisdictional questions relating to the named plaintiffs' standing and entitlement to equitable relief. See Armstrong, 275 F.3d at 881-82 (Berzon J., concurring).
D. Conclusion
The plaintiffs in this case seek to certify a Rule 23(b)(2) class as a vehicle for obtaining wholesale institutional reform of the CYA. In opposition to defendants' motion to dismiss on jurisdictional grounds, plaintiffs repeatedly argue that defendants have ignored the class nature of this lawsuit and their status as potential class representatives. However, the class allegations in this case do not alter the relevant analysis. Because it is not the court's role to generally "shape the [CYA] so that it compl[ies] with [federal] law and the Constitution," even in response to a class complaint, it is incumbent upon plaintiffs individually to make a sufficiently particularized showing of imminent and irreparable harm to warrant injunctive relief. Lewis, 518 U.S. at 349, 116 S.Ct. 2174. Such a showing may put pressure on plaintiffs to narrow the breadth of this lawsuit, but that is precisely the reason why the imminent injury requirement exists--to ensure that courts address concrete legal disputes and refrain from entertaining generalized complaints of institutional mismanagement. See generally Allen v. Wright, 468 U.S. 737, 760, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
IV. Specific Challenges to Standing and the Named Plaintiffs' Entitlement to
Injunctive Relief

Defendants move to dismiss the claims of Angel Martinez, Raymon Davis, Jermaine Brown, Chris Stevens, and Arlon Carroll, arguing that these plaintiffs fail to establish standing or a sufficient likelihood of imminent injury to warrant equitable relief. Defendants also move for summary judgment on the claims of Amy Stephens for lack of standing. [FN11]
FN11. For the purposes of this order, the court has only addressed the specific standing challenges raised by the defendants. However, the court may choose to revisit the plaintiffs' standing as the litigation progresses. See, e.g., Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).


*370 A. Defendants' Motion to Dismiss

On a motion to dismiss for lack of standing, or failure to meet the imminent and irreparable injury requirement for seeking injunctive relief, "the trial court must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." [FN12] Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Although this standard is lenient, the court is not obliged to accept allegations of future injury which are overly generalized, conclusory, or speculative. See Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820-21 (9th Cir.2002); United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir.1992). To establish jurisdiction, the plaintiff must clearly allege specific facts establishing an imminent risk of substantial and irreparable harm. See Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). In the absence of such specific factual allegations, the court may not assume that jurisdiction exists by "embellishing otherwise deficient allegations of standing." Whitmore, 495 U.S. at 156, 110 S.Ct. 1717; see also Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981) ("[t]he liberal reading accorded complaints on 12(b)(6) motions is [still] ... subject to the requirement that the facts demonstrating standing must be clearly alleged in the complaint. We cannot construe the complaint so liberally as to extend our jurisdiction beyond its constitutional limits.") (citations omitted).
FN12. Defendants have moved to dismiss plaintiffs' claims under Rule 12(b)(6), but the proper vehicle for contesting a court's subject matter jurisdiction, including the plaintiff's lack of standing, is Rule 12(b)(1). See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). Because defendants' motion to dismiss largely challenges the sufficiency of plaintiffs' allegations of future injury rather than the accuracy of those allegations, the relevant standards of review under Rule 12(b)(6) and 12(b)(1) are not materially different. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982) (where a defendant contends that the complaint
"simply fails to allege facts upon which subject matter jurisdiction can be based" the court must assume that all facts alleged in the complaint are true; thus, "the plaintiff, in effect, is afforded the same procedural protection" under Rule 12(b)(1) as he would receive on a 12(b)(6) motion).