The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING MOTION FOR RECONSIDERATION OF DISMISSAL OF CDCR
Plaintiff Robert Coleman, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 17, 2009. On February 11, 2011, the Court screened Plaintiff's complaint, dismissed several claims pursuant to Plaintiff's notice of voluntary dismissal, dismissed other claims and parties without leave to amend for failure to state a claim, and dismissed the remainder of Plaintiff's complaint with leave to amend. Plaintiff seeks reconsideration of the dismissal of the California Department of Corrections and Rehabilitation (CDCR) from this action.
Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. (internal quotation marks and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion."
The Court dismissed CDCR on the ground that it is entitled to Eleventh Amendment immunity. Plaintiff argues that he should be allowed to proceed against CDCR on his Eighth Amendment claim under the theory of municipal liability. Plaintiff also argues CDCR should be held liable for failing to train, supervise, and/or discipline its employees.
Municipal liability applies to cities and counties, which are persons under section 1983. Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018 (1978); Delia v. City of Rialto, 621 F.3d 1069, 1081 (9th Cir. 2010). However, the state and arms of the state are not persons under section 1983 and they are shielded from liability by the Eleventh Amendment. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64-71, 109 S.Ct. 2304 (1989); Pittman v. Oregon Employment Dep't, 509 F.3d 1065, 1072 (9th Cir. 2007). Plaintiff's section 1983 claim against CDCR is unequivocally barred by the Eleventh Amendment and dismissal was proper. Will, 491 U.S. at 64-71; Pittman, 509 F.3d at 1072.
Accordingly, Plaintiff's motion for reconsideration of the dismissal of CDCR from this action is HEREBY DENIED.
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