United States District Court, S.D. California
November 18, 2005.
LONNIE MOORE, Plaintiff,
19th HOLE RESTAURANT, et al., Defendants.
The opinion of the court was delivered by: WILLIAM HAYES, District Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT
On July 18, 2005, Plaintiff Lonnie Moore, proceeding pro se,
filed a First Amended Complaint ("FAC"), pursuant to
42 U.S.C. § 1983, against Defendants 19th Hole Restaurant, Steve Tobey, and
the California Unemployment Insurance Appeals Board ("CUIAB").
Plaintiff's FAC alleges that the Defendants wrongfully denied him
his right to unemployment benefits. Moreover, Plaintiff alleges
that the CUIAB acted under color of state law to wrongfully
deprive him of his right to unemployment compensation pursuant to
California Unemployment Insurance Code § 1256.1, a statute which
Plaintiff asserts is in violation of 26 U.S.C. § 3304. Plaintiff
seeks declaratory relief, $10,000,000 in unspecified damages, and $2,000,000 in punitive damages. The Court now issues the
Plaintiff filed a Complaint on May 16, 2005, pursuant to
42 U.S.C. § 1983 seeking "$10,000,000 in unemployment benefits,
$2,000,000 for service and elapsed time, the `removal' of
California Unemployment Insurance Code § 1256.1 `from state
legislation,' `to discipline the court for its action,' and to
strike Congress minority leader Nancy Pelosi of her title." July
13, 2005 Order (1) Granting Application to Proceed In Forma
Pauperis; and (2) Dismissing Complaint with Leave to Amend
("Order") at 1. Additionally, Plaintiff moved to proceed in
forma pauperis ("IFP") under 28 U.S.C. § 1915(a). Id.
On July 13, 2005, the Court granted Plaintiff's motion to
proceed IFP, but dismissed Plaintiff's Complaint for several
reasons. Id. at 10. In the Complaint, Plaintiff failed to name
a "defendant who allegedly acted under color of state law," a
requirement for a § 1983 claim. Id. at 3. Furthermore, the
Court ruled that
Plaintiff . . . failed to state a cause of action
against the 19th Hole for denying Plaintiff
unemployment compensation. First, Plaintiff is likely
an at-will employee. Additionally, Plaintiff's
Complaint fails to state that he followed the
appropriate procedure required to recover under the
California Unemployment Insurance Code. Finally,
Plaintiff fails to state any claim of entitlement to
recovery under workers' compensation law.
Id. at 6-7. In addition, Plaintiff's Complaint was frivolous as
it contained "threatening, fanciful, delusional and clearly
baseless" allegations. Id. at 5. Accordingly, this Court
dismissed Plaintiff's Complaint as "factually frivolous and
failing to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)."
Id. at 10.
On July 18, 2005, Plaintiff filed a FAC in which he alleges
that Defendants CUIAB, Steve Tobey, and the 19th Hole Restaurant
wrongfully denied him his right to unemployment benefits. FAC,
p. 1. Further, Plaintiff alleges that CAL. UNEMP. INS. CODE §
1256.1, which the CUIAB allegedly applied in denying Plaintiff
unemployment compensation, violates 26 U.S.C. § 3304, an enabling
statute for the Secretary of Labor to approve state unemployment
compensation plans. Id.
III. Standard of Review
Complaints filed by pro se litigants are subject to a less
stringent standard of review. Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623
(9th Cir. 1988) (citing Bretz v. Kelman, 773 F.2d 1026, 1027
n. 1 (9th Cir. 1985) (en banc)). "In civil rights cases where
the Plaintiff appears pro se, the court must construe the
pleadings liberally and must afford the Plaintiff the benefit of
any doubt." Id. In such cases, "dismissal is proper only if it
is absolutely clear that the deficiencies of the complaint could
not be cured by amendment." Broughton v. Cutter Laboratories,
622 F.2d 458, 460 (9th Cir. 1980). However,
28 U.S.C. § 1915(e)(2) permits the dismissal of a case upon the determination
that the complaint is frivolous or malicious, or fails to state a
claim on which relief may be granted.
A. Dismissal of Plaintiff's Claims Against the CUIAB
To state a claim under § 1983, Plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law. Parratt
v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds
by Daniels v. Williams, 474 U.S. 327, 330-331 (1986).
Plaintiff's FAC alleges that the CUIAB's denial of unemployment
benefits was improper because the pertinent California
Unemployment Insurance Code sections are purportedly in violation
of 26 U.S.C. § 3304. FAC, p. 1. However, "it is well
established that agencies of the state are immune under the
Eleventh Amendment from private damages or suits for injunctive
relief brought in federal courts." Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1040 (9th Cir. 2003) (citing Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)).
Specifically, the Ninth Circuit has held that § 1983 actions
against the CUIAB are barred by the Eleventh Amendment. See,
e.g., Wood v. Sargeant, 694 F.2d 1159, 1161 (9th Cir. 1982)
(holding that § 1983 action against the CUIAB is barred by the
Eleventh Amendment); cf. Esparza v. Valdez, 862 F.2d 788, 795
(10th Cir. 1988) (a suit seeking unemployment compensation from
state-administered fund for past violations of federal rights is
barred by the Eleventh Amendment); Eaglesmith v. Ward,
73 F.3d 857, 860 (9th Cir. 1995) (affirming dismissal of employee's §
1983 action brought against school superintendent in his official
capacity because he is a state agent entitled to Eleventh
Amendment immunity); Cerrato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968, 972 (9th Cir. 1994)
(in a § 1983 action, the Ninth Circuit held the Eleventh
Amendment bars a federal court from hearing claims against
dependent instrumentalities of the state); Almond Hill Sch. v.
U.S. Dep't of Agriculture, 768 F.2d 1030, 1034-1035 (9th Cir.
1985) (in § 1983 action against the California Department of Food
and Agriculture, the Ninth Circuit found that an "action against
a state agency for any type of relief is barred by the [E]leventh
[A]mendment."). Therefore, the Court need not determine whether
Plaintiff has alleged the violation of a right secured by the
laws of the United States by claiming that the California
Unemployment Insurance Code violates a U.S. Department of Labor
Accordingly, Plaintiff's claims against the CUIAB are dismissed
without prejudice. See Freeman v. Oakland Unified School Dist.,
179 F.3d 846, 847 (9th Cir. 1999) (in actions barred by the
Eleventh Amendment, a federal court must dismiss without
prejudice to the case being refiled in state court); Frigard v.
United States, 179 F.3d 846, 847 (9th Cir. 1999).
B. Dismissal of Plaintiff's Claims Against Steve Tobey and
Plaintiff's FAC alleges that "Steve Tobey of 19th Hole . . .
denied Particular [sic] right to unemployment benefits [sic] it
does appear [sic] cover sheet." FAC, p. 1. As Plaintiff does not
allege that Defendants Tobey and 19th Hole acted under color of
state law to deprive him of constitutional or federal statutory
rights, he fails to state a claim upon which relief may be
granted under § 1983. Moreover, for the same reasons discussed in
the Court's July 13, 2005 Order, Plaintiff's FAC also fails to
allege facts establishing either Plaintiff's eligibility for
unemployment compensation, or Tobey and 19th Hole's liability
under any cognizable legal theory. Indeed, the FAC does not make
any further allegations or statements regarding these Defendants.
Accordingly, the Court finds that Plaintiff fails to state a
claim against Tobey or 19th Hole under 42 U.S.C. § 1983, or any
other basis on which relief may be granted.
V. Conclusion and Order
Having reviewed the papers submitted and the relevant law, IT
IS HEREBY ORDERED that Plaintiff's claims against the CUIAB are
DISMISSED without prejudice to the case being refiled in state
court. IT IS FURTHER ORDERED that Plaintiff's claims against Defendants Steve Tobey and 19th Hole are DISMISSED without
prejudice and with leave to amend. If Plaintiff elects to file a
second amended complaint, he must reallege the pertinent claims
made in previous pleadings, as wells as cure the defects outlined
by the Court in this Order and the July 13, 2005 Order. If
Plaintiff fails to state a claim upon which relief may be granted
in his second amended complaint, Plaintiff will not be granted
another opportunity to cure the defects in a third amended
complaint. Additionally, Plaintiff must file his second amended
complaint no later than 30 days following the date this Order is
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.