The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (ECF Nos. 25, 30, 31) THIRTY-DAY DEADLINE
Plaintiff JONATHAN CROMP ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed May 10, 2010, against Defendant Conway for deliberate indifference to medical needs in violation of the Eighth Amendment. On October 6, 2011, Defendant filed a motion to dismiss Plaintiff's official capacity and state law claims. Plaintiff filed an objection on October 31, 2011, and Defendant filed a reply on November 2, 2011.
II. Complaint Allegations
Plaintiff had knee surgery on July 23, 2007. On July 24, 2007, Plaintiff's knee was swollen and painful. Plaintiff alleges that Defendant Conway examined his knee and told him nothing was wrong with it and to get back in his cell. The swelling and pain worsened and on July 25, 2007, Defendant Conway again examined his knee and told him that nothing was wrong. On July 28, 2007, Plaintiff was seen by a physician who examined the knee and sent Plaintiff to the hospital where he was diagnosed with advanced gangrene.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). However, the court may properly consider matters subject to judicial notice and documents incorporated by reference in the pleading without converting the motion to dismiss to one for summary judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Additionally, the court is to "construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hebbe, 627 F.3d at 342.
On March 1, 2011, the complaint was screened and the court found that Plaintiff stated a cognizable claim against Defendant Conway for deliberate indifference to serious medical needs. However, the order did not address Plaintiff's official capacity or state law claims. A review of the complaint reveals that Plaintiff did bring this action against Defendant in her official and individual capacities and alleged Plaintiff had exhausted all state claims as to the California Victim Compensation and Government Claims Board for a gross negligence claim under state law.
1. Official Capacity Claim
Defendant argues that Plaintiff's official capacity claims should be dismissed because she is immune from damages in her official capacity. Plaintiff argues that, while his claim for monetary relief is barred by the Eleventh Amendment, his claim for declaratory relief is not barred against Defendant in her official capacity. Defendant replies that since Plaintiff is not seeking injunctive relief the official capacity claims should be dismissed.
"The Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities." Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). A suit brought against prison officials in their official capacity is generally equivalent to a suit against the prison itself. McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986). Therefore, prison officials may be held liable if "'policy or custom' . . . played a part in the violation of federal law." McRorie, 795 F.2d at 783 (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985). In this instance Plaintiff has not alleged a policy or custom played a part in the violation of his rights and the complaint fails to state a claim against Defendant Conway in her official capacity.
To the extent that Plaintiff is attempting to obtain a declaratory judgment against Defendant Conway, "[a] declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest." Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). "Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties." United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a verdict in favor of Plaintiff, that verdict will be a finding that Plaintiff's constitutional ...