Elseth v. Speirs, et al

Filing 32

ORDER signed by Judge Garland E. Burrell, Jr on 4/9/09 ORDERING that plaintiff's 23 request for leave to file a Second Amended Complaint in which they allege their claim against Gordon in his "individual capacity" is GRANTED, provided the Second Amended Complaint is filed within ten days from the date on which this Order is filed. (Duong, D)

1 2 3 4 5 6 7 8 9 10 11 12 13 Plaintiffs, 14 v. 15 16 17 18 19 20 21 22 Defendant David Gordon ("Gordon") moves for dismissal of 23 Plaintiffs' only claim against him, arguing inter alia since the claim 24 is alleged against him only in his official capacity as the Sacramento 25 County Superintendent of Schools, he is shielded from this damage 26 27 28 This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h). 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ROGER ARDEN ELSETH; PATRICIA ANN ELSETH; and ALLEN ELSETH by his guardian ad litem ROGER ARDEN ELSETH AND PATRICIA ANN ELSETH,

VERNON SPEIRS, Chief Probation Officer of the County of Sacramento; DAVID GORDON, Superintendent Sacramento County Department of Education; SHERIFF of the County of Sacramento, Deputy Sheriff TAM; Deputy Sheriff ALLENGUIRY; and DR. SAXTON, M.D., Defendants.

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2:08-cv-2890-GEB-KJM ORDER*

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claim under Eleventh Amendment immunity.

Plaintiffs rejoin requesting

leave to correct the nature of their suit against Gordon stating they should allege Gordon is sued in his "individual capacity." Opp'n at 3:8-11). (Pls.

Since this claim only seeks damages against Gordon See

in his official capacity, Gordon's dismissal motion is granted. Eaglesmith v. Ward, 73 F.3d 857, 859-60 (9th Cir. 1995)(holding a

county superintendent of schools sued in his official capacity was entitled to Eleventh Amendment immunity because a California county office of education is a state agency). Plaintiffs' request for leave to file a Second Amended Complaint in which they allege their claim against Gordon in his "individual capacity" is granted, provided the Second Amended Complaint is filed within ten days from the date on which this Order is filed.
Dated: April 9, 2009

GARLAND E. BURRELL, JR. U n i t e d States District Judge

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