FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Although initially proceeding pro se, plaintiff is now represented by counsel. Before the court is a motion to dismiss in part or to strike claims from plaintiff's complaint filed on behalf of defendants Gonzalez and Cooper.*fn1 Plaintiff filed a pro se opposition to the motion and his counsel did not thereafter request leave to file further briefing. Defendants have filed a reply to plaintiff's pro se opposition.
This action is proceeding on plaintiff's complaint against defendants Alice Lebron, a licensed psychologist at Mule Creek State Prison, and correctional officers Sgt. Gonzales and Sgt. Cooper who are also employed at Mule Creek State Prison. All defendants are sued their individual and official capacities. In his complaint plaintiff has alleged that defendants have violated his rights under the Eighth Amendment when they failed to protect him from his cell mate who had a history of violence and had made threats to harm plaintiff. Plaintiff alleges that his requests for a cell move were denied by prison officials. Thereafter, according to plaintiff, on January 14, 2010, he was assaulted by his cell mate and received injuries to his face, neck and shoulder. Plaintiff claims that he also suffers from post-traumatic stress disorder. In terms of relief, plaintiff seeks the award of compensatory and punitive damages, costs of suit, and injunctive relief.
Defendants Gonzales and Cooper seek dismissal of plaintiff's Eighth Amendment claim brought against them in their official capacities as well as plaintiff's prayer for the granting of injunctive relief.
Defendants Gonzales and Cooper argue that they are immune to suits for damages in their official capacities. (Mot. to Dismiss, Doc. 25-1 at 3.) Defendants contend that it is well-established that under the Eleventh Amendment, a State cannot be sued for damages in federal court and that this bar extends to suits against state prison officials who are sued in their official capacity. (Id. at 3-4.) Accordingly, defendants Gonzales and Cooper move for an order dismissing or striking plaintiff's monetary claims brought against them in their official capacities.
Defendants also note that included in the relief sought by plaintiff in connection with his Eighth Amendment claim is "injunctive relief, including but not limited to, an order of not being retaliated against for addressing his due process rights." (Doc. No. 1, ¶ 52 at 13-14.) Defendants Gonzales and Cooper argue that plaintiff is not entitled to injunctive relief because he has failed to make an adequate showing for such relief and failed to allege any ongoing or prospective violations of his constitutional rights. (Doc. No. 25 at 4.) Defendants argue that in order to be entitled to injunctive relief a plaintiff must show that there is a "real or immediate threat that the plaintiff will be wronged again - - a likelihood of substantial and immediate irreparable injury." Id. (quoting Los Angeles v. Lyons, 461 U.S. 95,111 (1983)). Defendants contend that plaintiff's request for injunctive relief suffers from the following deficiencies.
The Complaint is devoid of allegations that Defendants Cooper and Gonzalez continue to or will in the future act in any way to violate plaintiff's constitutional rights. Plaintiff does not allege he has been threatened or punished in retaliation for this action. There is no ongoing violation of a federal right that meets the high standard of proof necessary to obtain injunctive relief. Plaintiff's request for injunctive relief is vague and ambiguous, clearly goes beyond the scope of any alleged violation of a federal right, and is not the least intrusive means to correct any alleged violation of a federal right. Therefore, plaintiff fails to demonstrate he is entitled to injunctive relief in this action and this claim should be stricken.
II. Plaintiff's Opposition
In his pro se opposition plaintiff argues that defendants' motion should be rejected because it lacks merit. (Opp'n, Doc. No. 32 at 2.) Citing the decisions in Monell v. Dep't of Social Services, 436 U.S. 658 (1978) and Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir 1989), plaintiff argues that the Eleventh Amendment is not a bar to his actions against defendants Gonzales and Cooper in their official capacities because a local entity can be sued under § 1983. (Id.) Plaintiff also asserts that he can sue defendants in their official capacity because he seeks an injunction and declaratory judgment in his favor.*fn2 (Id.) Finally, plaintiff contends that defendants Gonzales and Cooper are not entitled to absolute immunity. (Id.)
Defendants Gonzales and Cooper reiterate that their motion seeking dismissal of plaintiff's claims brought against them in their official capacities as barred by the Eleventh Amendment pertain only to plaintiff's claims seeking monetary relief. (Doc. No. 34 at 2.) In support of their motion to dismiss the request for injunctive relief, defendants point out that plaintiff failed to address this argument in his opposition brief. (Id.) Defendants reiterate their argument that plaintiff's injunctive relief claim should be dismissed because he has failed to allege facts suggesting an ongoing or prospective violation of his constitutional rights. (Id.) Rather, according to defendants, plaintiff has only alleged a specific incident of deliberate indifference to his safety by them. (Id.) ...