United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a California state prisoner, presently incarcerated in
Arizona, proceeding through counsel. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983, and paid the filing fee.
This proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1). As set forth below,
the undersigned recommends that two defendants be dismissed,
and that this action be transferred to the District of
alleges that on or about February 1, 2016, while housed at
the La Palma Correctional Center in Arizona (“La
Palma”), Doe defendants 1-50 had prior knowledge that a
physical attack on plaintiff was going to take place yet took
no action to stop or prevent the attack, and that following
the attack, no investigation was conducted, the inmates and
correctional officers were not brought to justice, but
plaintiff was put in solitary confinement. As a result,
plaintiff suffered physical injuries, current and future
hospital and medical expenses, psychological, mental and
emotional injuries, and pain and suffering. As causes of
action, plaintiff alleges the following violations: (1) civil
rights violations based on his (a) right to be free from
unreasonable searches and seizures as secured by the Fourth
and Fourteenth Amendments; (b) right to be free from
excessive and unreasonable force as secured by the Fourth and
Fourteenth Amendments; (c) right to be free of unlawful,
reckless, deliberately indifferent, and conscience shocking
force under the Fourteenth Amendment; (d) right to be free
from conspiracy, which interferes with his civil rights; (2)
violation of California Civil Code § 52.1; (3)
negligence; (4) assault and battery; and (5) California Civil
Code § 51.7. Plaintiff seeks compensatory, general,
exemplary, and punitive damages, costs and attorney fees. In
addition to the Doe defendants, plaintiff names as
defendants: the State of California; California Department of
Corrections and Rehabilitation (“CDCR”); La
Palma; Chuck Keeton, Warden of La Palma; Corrections
Corporation of America (“CCA”); Arizona
Department of Corrections (“AZ DOC”); and Charles
L. Ryan, Director of AZ DOC.
March 9, 2017, plaintiff filed a notice purporting to
substitute “Officer Delsi” in place of “Doe
1.” (ECF No. 5.)
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. §
names as defendants the State of California and the CDCR.
Eleventh Amendment to the United States Constitution
prescribes: “The Judicial power of the United States
shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const., amend. XI.
The Amendment has been interpreted to preclude suits brought
by citizens against their own state as well. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99
(1984). It also bars a federal district court from exercising
supplemental jurisdiction over claims brought against a state
based on state law. Id. at 120-21 (“[N]either
pendent jurisdiction nor any other basis of jurisdiction may
override the Eleventh Amendment.”). “Eleventh
Amendment sovereign immunity limits the jurisdiction of the
federal courts and can be raised by a party at any time
during judicial proceedings . . . .” In Re
Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999). Although
the Eleventh Amendment is not jurisdictional, the court may
raise the defect on its own. Wisconsin Department of
Corrections v. Schacht, 524 U.S. 381, 389 (1998);
Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).
Further, “[a]lthough a State's general waiver of
sovereign immunity may subject it to suit in state court, it
is not enough to waive the immunity guaranteed by the
Eleventh Amendment.” Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241 (1985) (emphasis added)
(superseded by statute on other grounds). In order to
constitute a waiver of Eleventh Amendment immunity, a state
statute “must specify the State's intention to
subject itself to suit in federal court.” Id.
(emphasis in original).
State of California has not consented to suit and is entitled
to sovereign immunity. In addition, the CDCR is considered an
arm of the state for purposes of the Eleventh Amendment.
Moreno v. California, 25 F.Supp.2d 1060, 1063 (N.D.
Cal. 1998) (citing Taormina v. Cal. Dep't of
Corr., 946 F.Supp. 829, 831 (S.D. Cal. 1996),
aff'd, 132 F.3d 40 (9th Cir. 1997)); see
also Philips v. McGrath, 2007 WL 2781270, at *2 n.3
(N.D. Cal. Sept. 20, 2007) (noting that CDCR was previously
known as California Department of Corrections). Thus,
“the CDC[R] is immune from suit under the Eleventh
Amendment. . . .” Moreno, 25 F.Supp.2d at
1063. The Eleventh Amendment erects a general bar against
federal lawsuits brought against the state and there is no
exception present here. Wolfson v. Brammer, 616 F.3d
1045, 1065-66 (9th Cir. 2010) (citing Porter v.
Jones, 319 F.3d 483, 491 (9th Cir. 2003)) (quotation
addition, plaintiff is seeking monetary damages only and has
not stated a claim for injunctive relief. Fayle v.