Herbert v. City and County of San Francisco et al
ORDER by Judge Claudia Wilken granting 4 Defendant Regents' Motion to Dismiss (scc, COURT STAFF) (Filed on 3/10/2009)
1 2 3 4 5 6 KERRY ARTHUR HERBERT, JR., Plaintiff, 7 8 v. AND COUNTY OF SAN FRANCISCO; 9 CITYFRANCISCO GENERAL HOSPITAL; SAN 10 REGENTS OF UNIVERSITY OF CALIFORNIA; and DOES 1-30, 11 12 13 14 Defendant Board of Regents of the University of California Defendants. / No. C 08-5748 CW ORDER GRANTING DEFENDANT REGENTS' MOTION TO DISMISS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court For the Northern District of California
15 (Regents), relying on Federal Rule of Civil Procedure 12(b)(6), 16 moves to dismiss all claims against it in this action based on 17 absolute immunity under the Eleventh Amendment. Plaintiff Kerry 18 Arthur Herbert, pro se, opposes the motion. Having considered all 19 the papers filed by the parties, the Court GRANTS Defendant 20 Regents' motion to dismiss. 21 22 BACKGROUND Plaintiff alleges that, on August 2, 2007, he was on temporary
23 release from the San Francisco County jail to attend his 24 grandmother's funeral. On August 3, 2007, while on release, 25 Plaintiff went to San Francisco General Hospital (SFGH) for pain in 26 his left knee. Doctors examined and treated him for a "sprang 27 knee." Plaintiff returned to jail on August 4, 2007 and then went 28 back to SFGH in custody on August 5, 2007. This time, doctors
1 diagnosed Plaintiff with Methicillin-Resistant Staphylococcus 2 Aureus and Plaintiff underwent seven surgeries to his left leg. 3 All of the physicians at SFGH are faculty at the University of 4 California, San Francisco (UCSF). 5 Plaintiff claims he received inadequate medical care on August
6 3, 2007 and alleges four causes of action under both state and 7 federal laws.1 8 The City and County of San Francisco (CCSF) and Regents are CCSF removed the action to federal
9 co-defendants in this action. 10 court. United States District Court For the Northern District of California
Regents did not join CCSF's removal petition, nor has it
11 expressly waived any immunities which it now asserts under the 12 Eleventh Amendment. 13 14 LEGAL STANDARD A motion to dismiss for failure to state a claim will be
15 denied unless it is "clear that no relief could be granted under 16 any set of facts that could be proved consistent with the 17 allegations." Falkowski v. Imation Corp., 309 F.3d 1123, 1132
18 (9th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 19 (2002). 20 When granting a motion to dismiss, a court is generally
21 required to grant a plaintiff leave to amend, even if no request to 22 amend the pleading was made, unless amendment would be futile. 23 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 24 F.2d 242, 246-47 (9th Cir. 1990). 25 26 27 28 Plaintiff alleges general negligence, medical malpractice, and intentional infliction of emotional distress under state law; under federal law, he alleges a violation of 42 U.S.C. § 1983. 2
In determining whether amendment
1 would be futile, a court examines whether the complaint could be 2 amended to cure the defect requiring dismissal "without 3 contradicting any of the allegations of [the] original complaint." 4 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). 5 6 I. 7 Eleventh Amendment Regents' assertion that it is entitled to Eleventh Amendment The Eleventh DISCUSSION
8 immunity is supported by controlling case law.
9 Amendment generally renders states immune from private damages 10 claims brought in federal court. United States District Court For the Northern District of California Stanley v. Trustees of California This
11 State University, 433 F.3d 1129, 1133 (9th Cir. 2006).
12 "sovereign immunity" bars private citizens from suing the state in 13 federal court under either federal- or state-law claims. 14 State Sch. & Hosp. v. Halderman, 465 U.S 89, 106 (1984). 15 is generally absolute and covers states as well as their 16 "instrumentalities." Regents of the University of California v. The University of California and Pennhurst The bar
17 Doe, 519 U.S. 425, 429 (1997).
18 Regents are considered instrumentalities of the state and 19 therefore, absent waiver, enjoy Eleventh Amendment immunity. 20 BV Engineering v. University of California, Los Angeles, 858 F.2d 21 1394, 1395 (9th Cir. 1988). 22 II. 23 Waiver In general, there are two ways that a state can waive its
24 Eleventh Amendment immunity: voluntary consent or affirmative 25 litigation in federal court. 26 27 28 A. Voluntary Consent
A state waives Eleventh Amendment immunity if it voluntarily 3
1 consents to be sued in federal court.
Stanley, 433 F.3d. at 1133.
2 The test for voluntary consent is a stringent one that requires an 3 unequivocal expression of intent, such as a statute or 4 constitutional amendment that clearly sets forth the state's 5 intention to subject itself to suit in federal court. Atascadero
6 State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)(superseded by 7 statute on other grounds). Here, Plaintiff cites no such statute,
8 constitutional provision, or any other unequivocal expression of 9 intent. 10 United States District Court For the Northern District of California 11 B. Affirmative Litigation In Federal Court (Removal)
Regents contends that co-defendant CCSF's removal of this case
12 to federal court is not a waiver of Regents' Eleventh Amendment 13 immunity. Under controlling case law, a state waives Eleventh
14 Amendment immunity if it engages in certain affirmative "conduct 15 that is incompatible with an intent to preserve that immunity." 16 Hill v. Blind Indus. & Services, 179 F.3d 754, 758 (9th Cir. 1999). 17 Under certain circumstances, a court may find that removal of 18 state- or federal-law claims is conduct that constitutes waiver. 19 Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 20 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004). 21 In Lapides, the plaintiff, a former employee of the Georgia
22 State University, sued the University's Board of Regents in state 23 court asserting both state- and federal-law claims. 24 U.S. at 616. Lapides, 535
The Board of Regents removed the case to federal
25 court, and then moved to dismiss on grounds of Eleventh Amendment 26 immunity. Id. The Court held that the state waived its Eleventh
27 Amendment immunity on the state-law claims when it voluntarily 28 4
1 removed the case to federal court.
Id. at 622.
In Embury, the
2 Ninth Circuit Court of Appeals extended the ruling in Lapides when 3 it held that, upon removal, the state also waives Eleventh 4 Amendment immunity for federal-law claims. 5 361 F.3d at 566.
The circumstances in the present case differ significantly Here, unlike in Lapides and
6 from those in Lapides and Embury.
7 Embury, Regents played no part in removing the case to federal 8 court. On the contrary, Regents did not join co-defendant's
9 removal petition, nor did it consent to removal. 10 United States District Court For the Northern District of California In Riley v. Oregon, 2004 WL 2360511 (D. Or.), the plaintiff
11 sued the co-defendants, the state of Oregon and Washington County, 12 in state court asserting state- and federal-law claims. The county
13 removed the case to federal court and then the state moved to 14 dismiss on grounds of sovereign immunity. Id. The court in Riley
15 explained that the state neither voluntarily removed the action nor 16 engaged in significant litigation before asserting its right to 17 immunity. Id. Furthermore, the state raised its sovereign
18 immunity defense in the first motion it filed in federal court. 19 Id. Lastly, the parties in Riley did not cite, nor did the court
20 find, any controlling decisions holding that a state waives its 21 Eleventh Amendment immunity by simply failing to seek remand of an 22 action that it did not remove. Id. For these reasons, the court Id.
23 granted the state's motion to dismiss. 24
Here, Regents has not engaged in any conduct that could be
25 deemed incompatible with an intent to preserve its Eleventh 26 Amendment immunity. See Hill, 179 F.3d at 758. Instead, Regents'
27 only contact with the Court has been to assert its Eleventh 28 5
1 Amendment immunity and state that it has not participated in the 2 removal to federal court of this case. Therefore, under the
3 circumstances presented here, the Court finds that Regents has not 4 waived its Eleventh Amendment immunity. 5 III. Qualified Immunity 6 In his response brief, Plaintiff provides a number of cases
7 purportedly standing for the proposition that Regents is entitled 8 only to qualified immunity. In addition, Plaintiff has appended a
9 complaint filed on March 4, 2003 by the United States Department of 10 Justice in United States of America v. The Regents of the United States District Court For the Northern District of California 11 University of California (Exhibit 2 to Plaintiff's response brief), 12 which he claims also supports his argument that Regents enjoys only 13 qualified immunity. However, Regents correctly states in its reply
14 brief that none of the cases cited nor Exhibit 2 is on point. 15 Plaintiff alleges no facts, nor does he provide any controlling 16 authority, to undermine the motion to dismiss. 17 18 CONCLUSION For the foregoing reasons, Defendant Regents' Motion to The Court dismisses all claims against This dismissal is without leave to amend in However, this
19 Dismiss is GRANTED. 20 Defendant Regents.
21 this Court because amendment would be futile.
22 dismissal is without prejudice to refiling in state court. 23 24 25 Dated: 26 27 28 6 3/10/09 CLAUDIA WILKEN United States District Judge IT IS SO ORDERED.
1 2 3 4 5 6 7 8 9 KERRY A. HERBERT JR, Plaintiff, v. SF CITY & COUNTY et al, Defendant.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case Number: CV08-05748 CW CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, 10 Northern District of California. United States District Court For the Northern District of California 11 That on March 10, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said 12 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 Kerry Arthur Herbert 25125 Santa Clara Street, #165 16 Hayward, CA 94541 17 Dated: March 10, 2009 18 19 20 21 22 23 24 25 26 27 28 7 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk
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