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Westerfield v. Gomez

United States District Court, C.D. California

April 12, 2017

CLEO WESTERFIELD, Plaintiff,
v.
C/O GOMEZ, et al., Defendants.

          MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

         I.

         INTRODUCTION

         Plaintiff 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.[1]

         II.

         FACTUAL ALLEGATIONS AND CLAIMS

         Plaintiff 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).

         The FAC 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.[2] (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. (Id.).

         Plaintiff woke up on the floor, soaked in urine, as a nurse[3] 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).

         The 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).

         III.

         DISCUSSION

         Under 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.

         A. Plaintiff's Official Capacity Claims Are Defective

         Plaintiff 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.

         Pursuant 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) ...


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