Gay v. State of California et al

Filing 10

ORDER OF DISMISSAL. For the foregoing reasons, the complaint is DISMISSED without prejudice to filing as a petition for writ of habeas corpus. The Clerk shall enclose two copies of the court's form petition with a copy of this order to Plaintiff. The Clerk shall terminate any pending motions and close the case. Signed by Judge Edward J. Davila on 12/15/2014. (ecg, COURT STAFF) (Filed on 12/16/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KENNETH EARL GAY,
Plaintiff,

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v.

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STATE OF CALIFORNIA, et al.,
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Defendants.
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No. C 14-04088 EJD (PR)

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ORDER OF DISMISSAL

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Plaintiff, a state prisoner at San Quentin State Prisoner, filed the instant civil rights

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action in pro se pursuant to 42 U.S.C. § 1983.1 Plaintiff’s motion for leave to proceed in

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forma pauperis will be granted in a separate written order.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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The matter was transferred to this Court from the United States District Court for the
District of Columbia for lack of jurisdiction. (See Docket No. 5.)
Dismissal
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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is

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immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be

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liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims

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Plaintiff identifies the State of California as the named defendant as “‘All State

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Government Agents’ act under color of authority vested by the sovereignty contained

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within State of California.” (Compl. at 1.) Plaintiff states that the matter should be

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served upon, but not limited to, Governor Edmund Jerry Brown and the Attorney General

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Kamala Harris. (Id.) Plaintiff alleges that he is in custody for a capital case “in violation

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of the United States Constitution, Statutory Laws and Treaties of the United States.” (Id.

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at 2.) Plaintiff seeks declaratory and injunctive relief, as well as damages. (Id. at 56-58.)

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The Eleventh Amendment bars from the federal courts suits against a state by its

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own citizens, citizens of another state or citizens or subjects of any foreign state.

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Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985); Alabama v. Pugh, 438

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U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 676-77 (1974). “A state waives

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its Eleventh Amendment Immunity if it ‘unequivocally evidence[s its] intention to subject

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itself to the jurisdiction of the federal court.’” Johnson v. Rancho Santiago Comm. Coll.

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Dist., 623 F.3d 1011, 1021 (9th Cir. 2010) (quoting Hill v. Blind Indus. & Servs. Of Md.,

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179 F.3d 754, 758 (9th Cir. 1999)). Unless a state has waived its Eleventh Amendment

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immunity or Congress has overridden it, a state cannot be sued regardless of the relief

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sought. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citing Alabama v. Pugh,
Dismissal
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438 U.S. 781 (1978)); Confederated Tribes & Bands v. Locke, 176 F.3d 467, 469 (9th

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Cir. 1999). Here, no such waiver is evident. Accordingly, Plaintiff’s civil action for

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damages against the State of California and its agents must be DISMISSED as barred by

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the Eleventh Amendment.

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Furthermore, to the extent that Plaintiff is seeking equitable relief from his capital

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sentence, habeas is the “exclusive remedy” for the prisoner who seeks “‘immediate or

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speedier release’” from confinement. Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011)

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(quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523

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U.S. 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v.

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Rodriguez, 411 U.S. 475, 500 (1973). Challenges implicating the fact or duration of

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confinement must be brought through a habeas petition. Docken v. Chase, 393 F.3d

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1024, 1026 (9th Cir. 2004). A civil rights complaint seeking habeas relief should be

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dismissed without prejudice to bringing it as a petition for writ of habeas corpus. See

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Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Accordingly, this action

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is DISMISSED without prejudice.

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CONCLUSION

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For the foregoing reasons, the complaint is DISMISSED without prejudice to

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filing as a petition for writ of habeas corpus. The Clerk shall enclose two copies of the

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court’s form petition with a copy of this order to Plaintiff.

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The Clerk shall terminate any pending motions and close the case.

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DATED:

12/15/2014

EDWARD J. DAVILA
United States District Judge

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Dismissal
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

KENNETH EARL GAY,

Case Number: CV14-04088 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
STATE OF CALIFORNIA, et al.,
Defendants.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
12/16/2014
That on
, 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 envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Kenneth Earl Gay D-15601
San Quentin State Prison
San Quentin, CA 94974
Dated:

12/16/2014
Richard W. Wieking, Clerk
/s/By: Elizabeth Garcia, Deputy Clerk