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Sedillo v. Johnson

April 28, 2009

ANDREW JOSEPH SEDILLO, PLAINTIFF,
v.
K.A. JOHNSON, AND CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER (1) DISMISSING AMENDED COMPLAINT IN PART AND (2) DIRECTING SERVICE

On April 7, 2008, pro se prisoner Plaintiff Andrew Joseph Sedillo ("Plaintiff") filed his Complaint alleging claims pursuant to 42 U.S.C. § 1983 against Clerk of San Mateo County Court Linda Makela ("Makela"), his attorney Linda Ann Novak ("Novak"), and two individuals at Mule Creek State Prison, K.A. Johnson ("Johnson") and "_. Martinez" ("Martinez"). On February 9, 2009, the court dismissed Plaintiff's Complaint with leave to amend.

On April 10, 2009, Plaintiff filed an Amended Complaint*fn1 asserting claims against Johnson and the California Department of Corrections and Rehabilitation ("CDCR"). Based on the following, the court DISMISSES Plaintiff's Amended Complaint in part and DIRECTS SERVICE.

I. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915A(a), the court must screen cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental agency. The court must dismiss a complaint or portion thereof if a plaintiff has raised claims that (1) are legally frivolous or malicious, (2) fail to state a claim upon which relief may be granted, or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996); Franklin, 745 F.2d at 1227.

The court must construe pro se pleadings liberally and afford the pro se litigant the benefit of any doubt. Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "Unless it is absolutely clear that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

II. DISCUSSION

A. The Amended Complaint States a Claim Against Johnson Only

The Amended Complaint alleges that Johnson threatened Plaintiff with disciplinary action if he refused to stop filing documents with the courts and that she acted on this threat by making errors in his file, which prevented him from participating in the inmate program.*fn2 Construing Plaintiff's claims liberally and affording him the benefit of the doubt, Plaintiff brings a 42 U.S.C. § 1983 claim against Johnson.

Plaintiff cannot, however, state a claim against the CDCR because it is entitled to Eleventh Amendment immunity. See Brown v. Cal. Dep't of Corr., 554 F.3d 747, 751 (9th Cir. 2009) (affirming dismissal of CDCR on Eleventh Amendment grounds). The Ninth Circuit has explained:

In the absence of a waiver by the state or a valid congressional override, under the eleventh amendment, agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court. The State of California has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court, and the Supreme Court has held that § 1983 was not intended to abrogate a State's Eleventh Amendment immunity.

Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999) (citations, alteration, and internal quotation marks omitted). The court therefore DISMISSES Plaintiff's Amended ...


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