The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
On November 18, 2008, Defendants Orland Unified School District ("OUSD") and Chris Von Kleist ("Von Kleist"), the district superintendent, filed a motion to dismiss Plaintiff's Complaint, arguing Plaintiff's claims are barred by the Eleventh Amendment. Plaintiff opposes the motion, but requests leave to file an amended Complaint in which Von Kleist is sued in his individual capacity if the dismissal motion is granted.
The Ninth Circuit has held that school districts in California are "agent[s] of the state" and thus, "immune to suit under the Eleventh Amendment." Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992). Further, a California school superintendent is entitled to Eleventh Amendment immunity when sued for damages in his or her official capacity. Eaglesmith v. Ward, 73 F.3d 857, 859 (9th. Cir. 1995). See also Hafer v. Melo, 502 U.S. 21, 25 (1991) (holding state officials sued in their official capacity are entitled to Eleventh Amendment immunity).
Plaintiff argues the school district is not a state agent under the Eleventh Amendment because any money judgment may be satisfied through liability insurance. (Pls. Opp'n at 4:16-25.) However, the Supreme Court has stated that it is not "the presence or absence of a third party's undertaking to indemnify the agency [that] determine[s] whether it is the kind of entity that should be treated as an arm of the State." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 437 (1997).
Plaintiff also argues the Eleventh Amendment does not bar his fourth claim, brought under the Uniform Services Employment and Re-employment Rights Act ("USERRA"), 38 U.S.C. § 4301. (Pls. Opp'n at 5:4-17.) The Ninth Circuit, however, has held that Congress, through USERRA, did not unequivocally express the intent to abrogate the states' sovereign immunity. Townsend v. Univ. of Alaska, 543 F.3d 478, 484 (9th Cir. 2008). Therefore, federal courts lack subject matter jurisdiction over claims brought against an arm of the state under USERRA. Townsend, 543 F.3d at 484-85.
For the reasons stated, Defendants' motion is granted and all claims against OUSD and the official capacity damages claims against Von Kleist are dismissed. Plaintiff's request for leave to file an amended Complaint in which individual capacity claims are alleged against Von Kleist is granted, ...