United States District Court, C.D. California
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
Cleo Westerfield ("Plaintiff"), a California state
prisoner proceeding pro se, has filed a First
Amended Complaint pursuant to 42 U.S.C. § 1983.
("FAC, " Dkt. No. 12). Congress mandates that
district courts perform an initial screening of complaints in
civil actions where a prisoner seeks redress from a
governmental entity or employee. 28 U.S.C. § 1915A(a).
This Court may dismiss such a complaint, or any portion
thereof, before service of process if the complaint (1) is
frivolous or malicious, (2) fails to state a claim upon which
relief can be granted, or (3) seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b) (1-2); see also Lopez v. Smith, 203 F.3d
1122, 1126-27 & n.7 (9th Cir. 2000) (en banc) . For the
reasons stated below, the First Amended Complaint is
DISMISSED with leave to amend.
ALLEGATIONS AND CLAIMS
sues two employees of the California Men's Colony
("CMC"), where he is currently housed. These
defendants are Correctional Officer Gomez and Registered
Nurse ("RN") Yule. Plaintiff sues Defendants in
their individual and official capacities. (FAC at 3).
summarily alleges that, on April 27, 2015, Plaintiff slipped
and fell in a pool of standing water in the prison kitchen.
(Id. at 5). Plaintiff was placed on medical leave
for 125 days. (Id. at 5) . However, on April
29, 2015, just "two days into the lay in [sic], "
Gomez, who "constantly harassed" Plaintiff,
instructed him to leave his cell and "go to the
yard." (Id.) . Plaintiff told Gomez that he was
feeling dizzy, taking medications and had permission to stay
in his cell because of his injury. (Id.). Gomez told
Plaintiff that "she did not care and [to] get up before
she presse[d] [the] alarm." (Id.). Plaintiff
then left the cell, became dizzy, and lost consciousness.
woke up on the floor, soaked in urine, as a
nurse was yelling at him to get up because there
was nothing wrong with him. (Id.). The nurse told
Plaintiff twice that he was going to write him up for
violations relating to this incident. (Id.). The
nurse laughed at Plaintiff for urinating in his clothes and
told other medical personnel about the incident.
(Id. at 5-6) . Plaintiff responded by saying he
would sue the nurse. (Id. at 5).
specific grounds for Plaintiff's claims are unclear.
However, the FAC appears to allege that Defendants are liable
for violations of Plaintiff's rights under the Eighth
Amendment (1) not to be treated "inhumanely" and
"to be free from cruel and unusual punishment" and
(2) "to have adequate medical care, " as well as
state law claims for (3) intentional infliction of emotional
distress and (4) "p[e]rjury." (Id. at 5) .
Plaintiff seeks monetary damages. (Id. at 6).
28 U.S.C. § 1915A(b), the Court must dismiss the First
Amended Complaint due to pleading defects. However, a court
must grant a pro se litigant leave to amend his
defective complaint unless "it is absolutely clear that
the deficiencies of the complaint could not be cured by
amendment." Akhtar v. Mesa, 698 F.3d 1202, 1212
(9th Cir. 2012) (citation and internal quotation marks
omitted). It is not "absolutely clear" that at
least some of the defects of Plaintiff's First Amended
Complaint could not be cured by amendment. The First Amended
Complaint is therefore DISMISSED with leave to amend.
Plaintiff's Official Capacity Claims Are
sues Defendants for damages in both their official and
individual capacities. (FAC at 3) . However, Plaintiff's
official capacity claims are barred by the Eleventh Amendment
and cannot proceed.
to the Eleventh Amendment, a state and its official arms are
immune from suit under section 1983. Howlett v.
Rose, 496 U.S. 356, 365 (1990); Brown v. Cal. Dept.
of Corrections, 554 F.3d 747, 752 (9th Cir. 2009)
("California has not waived its Eleventh Amendment
immunity with respect to claims brought under § 1983 in
federal court"). "[A] suit against a state official
in his or her official capacity . . . is no different from a
suit against the State itself." Flint v.
Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) ...