Cloud v. California Department of Corrections

Filing 23

ORDER signed by Magistrate Judge Gregory G. Hollows on 6/29/2017 DISMISSING California Department of Corrections and Rehabilitation as a defendant and DISMISSING Claims against defendants Does 1, 2 and 3 with leave to amend to name specific parties. Within 30 days, plaintiff may amend his complaint to attempt to state cognizable claims against these defendants and any others he has since identified. Failure to comply with this order will result in a dismissal of this action.(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY CLOUD, 12 13 14 15 16 17 No. 2:17-cv-00339 GGH Plaintiff, v. ORDER SAN DIEGO COUNTY JAIL EMPLOYEE JOHN DOEL, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, EMPLOYEE JOHN DOE 2, JOHN DOE 2, Defendants. 18 19 20 Plaintiff is a state prisoner proceeding without counsel in an action presently brought 21 under 42 U.S.C. § 1983. On April 3, 2017, ECF No. 17, the court dismissed plaintiff’s complaint 22 with leave to amend. On May 31, 2017 plaintiff filed a first-amended complaint. ECF No. 22. 23 The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 24 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 25 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 26 1915(e)(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 1 1 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–1228 2 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 3 indisputably meritless legal theory or where the factual contentions are “clearly baseless.” 4 Neitzke, 490 U.S. at 327. 5 DISCUSSION 6 7 Here plaintiff has filed an amended complaint which again names the California Department of Corrections and Rehabilitation [CRDC]. 8 9 The United States Supreme Court has held that State governmental agencies, of which the CDCR is one, are immune from actions brought under 28 U.S.C. section 1983 pursuant to the 10 Eleventh Amendment to the federal Constitution. Quern v. Jordan, 440 U.S. 332, 338-339 (1979) 11 citing, inter alia, Alabama v. Pugh, 438 U.S. 781 (1978); Hutto v. Finney, 437 U.S. 678 (1978); 12 Milliken v. Bradley, 433 U.S. 267 (1977); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). This 13 defendant will be dismissed and plaintiff shall not name this defendant again in any subsequent 14 amended complaint. 15 Plaintiff may, however, name in his amended complaint individual defendants of CDCR 16 and/or San Diego County Jail. In some cases, the naming of Doe defendants would be 17 appropriate if discovery of a properly named defendant could later disclose the identities of the 18 Doe defendants. However, this case cannot proceed where the only remaining defendants are 19 unidentified Doe defendants, i.e., there are no identifiable defendants against whom discovery 20 could be taken. Moreover, although this district might be appropriate for venue purposes, if a 21 defendant or defendants were found to be residing in this district, see 28 U.S.C. section 1391 22 (b)(1) and (2), the court cannot ascertain that fact, or whether a substantial part of the tortious 23 activities occurred in this district, by a listing of fictitiously named Doe defendants. 24 Accordingly, IT IS HEREBY ORDERED that : 25 1. 26 27 28 The CDCR is dismissed as a defendant;1 //// 1 Plaintiff has consented to the undersigned as presiding judge. ECF No. 14. As no defendants have made an appearance in this action, the undersigned proceeds by way of order. 2 1 2. Claims against defendants Does 1, 2 and 3 are dismissed with leave to amend to 2 name specific parties. Within thirty days of service of this order, plaintiff may amend his 3 complaint to attempt to state cognizable claims against these defendants and any others he has 4 since identified. 5 3. 6 IT IS SO ORDERED. 7 8 Failure to comply with this order will result in a dismissal of this action. Dated: June 29, 2017 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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