Hess v. State of California

Filing 24

ORDER: As California has not waived its sovereign immunity for alleged constitutional violations, Plaintiffs suit is barred. Therefore, the Court Dismisses the complaint. Signed by Judge Barry Ted Moskowitz on 12/26/2012.(All non-registered users served via U.S. Mail Service)(rlu)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

SOUTHERN DISTRICT OF CALIFORNIA

8
9

BERNARD HESS,

10

Case No. 10cv88 BTM(NLS)
Plaintiff,

ORDER

v.
11
12

STATE OF CALIFORNIA,
Defendant.

13
14

Plaintiff Bernard Hess, a nonprisoner proceeding pro se, has submitted a complaint
15
against the State of California, alleging, inter alia, violations of his right to a fair trial under the
16
Sixth Amendment. On December 18, 2012, Plaintiff filed a motion to proceed in forma
17
pauperis pursuant to 28 U.S.C. § 1915(a).
18
Under § 1915(a), the Court may authorize the commencement of a suit without
19
prepayment of fees if the plaintiff submits an affidavit, including a statement of all his assets,
20
showing that he is unable to pay filing fees. See 28 U.S.C. § 1915(a). Plaintiff has
21
submitted an affidavit which sufficiently shows that he lacks the financial resources to pay
22
filing fees, and the Court accordingly GRANTS Plaintiff’s motion to proceed in forma
23
pauperis.
24
Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any
25
person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a
26
mandatory and sua sponte review and dismissal by the Court to the extent it is “frivolous,
27
malicious, failing to state a claim upon which relief may be granted, or seeking monetary
28
relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v.
1

10cv88 BTM(NLS)

1

Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are

2

not limited to prisoners.”).

3

Under the Eleventh Amendment, “[t]he Judicial power of the United States shall not

4

be construed to extend to any suit in law or equity, commenced or prosecuted against one

5

of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign

6

State.” The Eleventh Amendment bars suits against states for alleged deprivations of civil

7

liberties unless the state has waived its immunity. Will v. Michigan Dept. of State Police, 491

8

U.S. 58, 66, 109 S. Ct. 2304, 2309, 105 L. Ed. 2d 45 (1989). As California has not waived

9

its sovereign immunity for alleged constitutional violations, Plaintiff’s suit is barred.

10

Therefore, the Court DISMISSES the complaint.

11
12

IT IS SO ORDERED.

13

DATED: December 26, 2012

14
15

BARRY TED MOSKOWITZ, Chief Judge
United States District Court

16
17
18
19
20
21
22
23
24
25
26
27
28
2

10cv88 BTM(NLS)