Alem v. California Department of Corrections and Rehabilitation et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/19/2018 RECOMMENDING that the California Department of Corrections and Rehabilitation be dismissed as a defendant to this action. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DANIEL ALEM,
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No. 2:17-CV-0343-KJM-DMC-P
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege
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with at least some degree of particularity overt acts by specific defendants which support the
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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
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impossible for the court to conduct the screening required by law when the allegations are vague
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and conclusory.
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Plaintiff names the following as defendants: (1) the California Department of
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Corrections and Rehabilitation; (2) M. Curry; (3) J. Ojo; and (4) Eric Arnold. By separate order,
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the court has determined the complaint is appropriate for service on defendants Curry, Ojo, and
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Arnold. The complaint is not, however, appropriate for service on the California Department of
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Corrections and Rehabilitation. The Eleventh Amendment prohibits federal courts from hearing
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suits brought against a state both by its own citizens, as well as by citizens of other states. See
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Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This
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prohibition extends to suits against states themselves, and to suits against state agencies. See
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Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d
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1040, 1045 (9th Cir. 1989). A state’s agency responsible for incarceration and correction of
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prisoners is a state agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438
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U.S. 781, 782 (1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en
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banc). The California Department of Corrections and Rehabilitation is immune and must be
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dismissed as a defendant to this action.
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Because it does not appear possible that the deficiencies identified herein can be
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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of
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the California Department of Corrections and Rehabilitation. See Lopez v. Smith, 203 F.3d 1122,
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1126, 1131 (9th Cir. 2000) (en banc).
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Based on the foregoing, the undersigned recommends that the California
Department of Corrections and Rehabilitation be dismissed as a defendant to this action.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal. See
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 19, 2018
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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