The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that 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 when 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 See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Named as defendants are the California Highway Patrol and the Sacramento County Sheriff's Department. Plaintiff alleges that "[a]n officer tazed me when I was cooperating and getting on the ground as ordered." As relief, plaintiff seeks money damages.
To allege a section 1983 claim against a local governmental entity such as the Sacramento County Sheriff's Department, plaintiff must allege a constitutional deprivation and a policy, custom, or practice of the Sacramento County Sheriff's Department that was the "moving force" of the constitutional deprivation. Monell v. Department of Social Services, 436 U.S. 658, 694--95 (1978); Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 2008). Plaintiff does not allege that he was tased pursuant to a policy, custom or practice of defendant Sacramento County Sheriff's Department. Accordingly, the claims against this defendant are dismissed with leave to amend. Conversely, plaintiff may seek to name as a defendant the individual officer who allegedly tased plaintiff, if plaintiff can allege a claim against that officer.
Plaintiff's claims against defendant California Highway Patrol are barred by the Eleventh Amendment. The Eleventh Amendment prohibits federal courts from hearing suits brought against a state by its own citizens or citizens of other states. Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). "[A]bsent a waiver by the state or a valid congressional override, the Eleventh Amendment bars a damages action against a state in federal court." Kentucky v. Graham, 473 U.S. 159, 169 (1985).
The Eleventh Amendment's prohibition applies not only to states, but also to state agencies. E.g., Lucas v. Dep't. of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (holding that claims against the California Department of Corrections were barred by state immunity).
Various courts, including the undersigned, have concluded that the California Highway Patrol is an arm of the state for the purposes of the Eleventh Amendment; thus, the California Highway Patrol enjoys sovereign immunity. See McCain v. California Highway Patrol, 2011 WL 3439225, at * 3 (E.D. Cal. Aug. 4, 2011) (unpublished); Oremus v. Cal. Highway Patrol, 2010 WL 2817072, at *1--2 (E.D. Cal. July 15, 2010) (unpublished); May v. Cal. Highway Patrol, 2010 WL 234868, at *1 (N.D. Cal. Jan.14, 2010) (unpublished); Townsend v. California, 2010 WL 1644740, at *6 (E.D. Cal. Apr.21, 2010) (unpublished); Vierria v. Cal. Highway Patrol, 644 F.Supp.2d 1219, 1232 (E.D. Cal.2009); Heymann v. State, 1999 WL 638205, at *1--2 (N.D. Cal. Aug.16, 1999) (unpublished); Guzman v. Van Demark, 651 F.Supp. 1180, 1183 (C.D. Cal.1987). The State of California has not consented to suit here, and the California ...