ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PURSUANT TO RULE 12(B)(6)
Plaintiff, Charles Earl Taormina (Taormina), while an inmate at Centinela State Prison, was shot by a correctional officer during a fight with a fellow inmate. His left leg was amputated as a result of the wound he received. Plaintiff alleges that defendants used excessive force in shooting him and failed to adequately treat his gunshot wound.
Plaintiff filed a civil rights complaint on December 29, 1995, stating causes of action under 42 U.S.C. § 1983 and California state law. In response, defendant California Department of Corrections (CDC) has moved to dismiss the complaint on the grounds that it is not a proper party to the lawsuit. Defendants Lieutenant Gonzales, Officer Hailey, and Officer Gervin have moved to dismiss the state law causes of action on the grounds that they are barred by the Eleventh Amendment. Defendant Officer Harris has moved to join as a party to the motion to dismiss, under Rule 20(a).
Plaintiff opposes the dismissal of the state law causes of action against defendants Gonzales, Hailey, Harris and Gerwin on the ground that the state law causes of action were brought against those defendants in their individual, as opposed to official, capacities.
A. CDC is not a proper party to this action
1. First Cause of Action
The first cause of action in the complaint, alleging excessive force and violation of plaintiff's federal constitutional rights, against defendant CDC is brought under 42 U.S.C. § 1983. (Complaint pp. 8-9).
A plaintiff in a section 1983 action must establish two essential elements: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived claimant of rights secured by constitutional or federal law. Hammer v. Gross, 884 F.2d 1200, 1203 (9th Cir. 1989); Rinker v. Napa County, 831 F.2d 829, 831 (9th Cir. 1987).
A state is not a "person" within the meaning of 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Furthermore, agencies and subdivisions of a state are not "persons" within the meaning of § 1983. State subdivisions are therefore not subject to suit under § 1983. Id. at 70 (this limitation also extends to "arms of the state"); see Hale v. State of Ariz., 993 F.2d 1387, 1388 (9th Cir.), cert. denied, 510 U.S. 946, 114 S. Ct. 386, 126 L. Ed. 2d 335 (1983)(holding that the Arizona Department of Corrections is not a "person" within the meaning of § 1983).
Since the CDC is not a "person" within the meaning of section 1983, the CDC's motion to dismiss the first cause of action is GRANTED.
2. Fourth Cause of Action for Liability based upon Monell v. Dept. of Social Serv., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
Defendant CDC also moves to have the plaintiff's fourth cause of action dismissed. That cause of action alleges that the individual defendants injured plaintiff as a result of an "illegal policy, pattern, practice and custom" sanctioned by the CDC. (Complaint § 73). The CDC is the only defendant to the fourth cause of action.
This cause of action is based upon Monell v. Dept. of Social Serv., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Monell provides for civil liability for municipalities, however, it did not change the settled prior law that states and their agencies are not persons for § 1983 purposes. In fact, in Will, Justice White distinguished Monell as involving local governments.
It does not follow that if municipalities are persons so are states. States are protected by the Eleventh Amendment while municipalities are not.
Will, 491 U.S. at 70, 105 L. Ed. 2d 45, 109 S. Ct. 2304, (citing Monell, 436 U.S. at 690, n.54).
The holding in Monell is limited "to local government units which are not considered part of the state for Eleventh Amendment purposes." Monell, 436 U.S. at 690, n.54. The CDC is a state government agency. Thus, the fourth cause of action is not applicable to the CDC, and the CDC's motion to dismiss is, therefore, GRANTED.
3. Second and Sixth Causes of Action (negligence and negligence per se).
In addition to the first and fourth causes of action, the second (negligence) and sixth (negligence per se) causes of action are also alleged against the CDC. (Complaint pp. 9-14). The CDC does not directly address these causes of action, however, they are barred by the Eleventh Amendment. The United States Supreme Court has held that "the Eleventh Amendment bars suits [in Federal court] against a state by citizens of the same state. . . ." Papasan v. Allain, 478 U.S. 265, 276, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1985); (citing Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890)). "In the absence of consent, a suit in which the state or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).
No consent has been given by the state or the CDC to be sued under the second or sixth causes of action. The plaintiff himself acknowledges that the "CDC should be dismissed from this complaint for not being a proper party." (Plaintiff's Opp. Memo. p.2). Therefore, the CDC's motion to dismiss these claims is GRANTED.
B. State Causes of Action Against Individual Defendants O.C. Hailey, Lieutenant Gonzales, Officer Harris, and Officer A.B. Gervin.
1. The Eleventh Amendment does not bar plaintiff's claims.
Plaintiff's second (negligence), third (assault/battery), fifth (interference with statutory and constitutional rights), and sixth (negligence per se) causes of action are based on California state law and regulations. A district court may adjudicate state law claims which are transactionally related to federal claims. 28 U.S.C. § 1367(a).
Defendants assert that the state law causes of action should be dismissed because they are barred by the Eleventh Amendment. (Defendants' Memo. pp. 4-8). Defendants cite this Court's opinion in Gaston v. Colio, 883 F. Supp. 508, 509 (S.D. of Cal. 1995)
to support their position that the state law claims are barred by the Eleventh Amendment. (Defendant's Memo. p.7). In that case, while dismissing the pendant state law claims, the Court stated that
The Eleventh Amendment remains a bar to pendant state law claims against state officials sued in their personal capacities for actions taken in their official capacity when the ultimate judgment would expend itself on the state treasury, even though the state may not be named as a defendant.
Id. at 509 (citing Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984)).
Plaintiff argues that the Eleventh Amendment does not apply when state officials are sued in their individual capacities, as the complaint in this case alleges. (Complaint §§ 5-8). Ninth Circuit law contradicts the Court's conclusion in Colio that the Eleventh Amendment bars suits against state officers in their individual capacities for actions taken in their official capacities.
Plaintiff cites Pena v. Gardner, 976 F.2d 469 (9th Cir. 1992),
to support his position that the Eleventh Amendment does not apply when the correctional officers are sued in their individual capacities. In Pena, while holding that the state law claims were not barred by the Eleventh Amendment, the court stated
In Pennhurst II, the Supreme Court held that the eleventh amendment bars suits in federal court . . . brought against state officials acting in their official capacities alleging a violation of state law. [citation]. The Court distinguished the situation where a plaintiff brings a suit against a state official acting in his individual capacity.