The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER GRANTING MOTION TO DISMISS AND DISMISSING DEFENDANT WASCO STATE PRISON WITHOUT LEAVE TO AMEND AND WITH PREJUDICE (Document #18)
This action is brought by Plaintiff Maria Lopez, and it stems from the death of her son, Victor Lopez ("Decedent Victor"), while he was an inmate at Wasco State Prison. This court has jurisdiction over Plaintiff's civil rights cause of action pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Venue is appropriate pursuant to 28 U.S.C. § 1391 because the events giving rise to this action occurred in the Fresno Division of the Eastern District of California.
On April 22, 2008, Plaintiff Maria Lopez filed a complaint in the California Superior Court for the County of Kern. The complaint names Wasco State Prison ("Defendant Wasco"), P.L. Vazquez ("Defendant Vazquez"), and Does 1 to 100 as Defendants.
After being served with the complaint, on June 23, 2008, Defendant Vazquez removed this action to this court. The notice of removal states that Defendant Vazquez is represented by Deputy Attorney General for the State of California, Debbie J. Vorous, ("California Attorney General"). In the notice of removal, Defendant Vazquez states that she received a copy of the summons and complaint on June 3, 2008.
On August 27, 2008, Plaintiff filed an amended complaint. The amended complaint names Defendant Wasco, the Department of Corrections ("Defendant CDC"), the State of California ("Defendant California"), Defendant P.L. Vasquez ("Defendant Vasquez"), Defendant Maria Chavez ("Defendant Chavez"), Defendant Bradley Choate ("Defendant Choate"), and Does 1 through 100 as Defendants. The first cause of action alleges that all Defendants violated 42 U.S.C. § 1983 by being deliberate indifferent in violation of the Fifth and Fourteenth Amendments. The second cause of action alleges that Defendants Wasco, Defendant CDC, and the Defendant California created dangerous conditions of public property based on the construction of Decedent Victor Lopez's cell. The third cause of action alleges Defendant Vasquez and Does 1 to 100 abused and neglected a dependant adult in violation of Welfare and Institutions Code § 15600 by failing to provide reasonable medical care for Decedent Victor Lopez. The fourth cause of action alleges that Defendant Chavez and Choate violated California Government Code § 820 and § 820.25 when they failed to administer life saving measures by continuing CPR. The fifth cause of Action alleges that all individually named Defendants are liable for Decedent Victor's wrongful death in violation of California Civil Code § 377.60.
On October 8, 2008, Defendant Wasco filed a motion to dismiss. Defendant Wasco contends that this court lacks jurisdiction because Defendant Wasco is immune pursuant to the Eleventh Amendment. Defendant Wasco also contends that Plaintiff failed to comply with the California Government Claims Act, and Defendant Wasco is immune from liability. Defendant Wasco provides evidence in the form of Defendant Wasco's attorney, the California Attorney General. The California Attorney General states under penalty of perjury that she is the attorney representing both Defendant Wasco and Defendant Vazquez. The California Attorney General further states that the Office of the Attorney General accepted service of the first amended complaint on behalf of Defendant Wasco on September 2, 2008, after removal.
On November 14, 2008, Plaintiff filed a reply. Plaintiff contends that Defendant Wasco waived its Eleventh Amendment immunity because the California Attorney General removed this action, and as such, he waived Eleventh Amendment immunity. Plaintiff also contends that she fully complied with the tort claims act and Defendant Wasco is not immune.
On December 3, 2008, Defendant Wasco filed a reply.
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). "A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A defendant may attack the existence of subject matter jurisdiction based on facts outside pleadings. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air, 373 F.3d at 1039. Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air, 373 F.3d at 1039; Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Safe Air, 373 F.3d at 1039. "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing, 594 F.2d at 733. However, in ...