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TAORMINA v. CALIFORNIA DEP'T OF CORRECTIONS

November 27, 1996

CHARLES EARL TAORMINA, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, OFFCER O.C. HAILEY, LIEUTENANT GONZALES, OFFICER HARRIS, OFFICER A.B. GERVIN AND DOES 1 THROUGH 20, Defendants



The opinion of the court was delivered by: BREWSTER

 I. Background

 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.

 II. Discussion

 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 ...

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