(PC) Drumm v. CD.CR et al, No. 2:2018cv02854 - Document 16 (E.D. Cal. 2019)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 3/20/2019 VACATING 14 Findings and Recommendations; DISMISSING 15 First Amended Complaint with leave to amend within 30 days; and DIRECTING Clerk of Court to update court records to reflect Plaintiff's new address at CIM in Chino, CA. (Henshaw, R)

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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 THOMAS DRUMM, 12 13 14 15 No. 2: 18-cv-2854 KJM KJN P Plaintiff, v. ORDER CDCR, et al., Defendants. 16 17 On February 14, 2019, the undersigned recommended that this action be dismissed based 18 on plaintiff’s failure to file an amended complaint in compliance with the January 4, 2019 order. 19 (ECF No. 14.) On March 11, 2019, plaintiff filed an amended complaint. (ECF No. 15.) Good 20 cause appearing, the February 14, 2019 findings and recommendations are vacated. The 21 undersigned herein screens the amended complaint filed March 11, 2019. 22 The only named defendant is the California Institution for Men (“CIM”). Plaintiff alleges 23 that he has pain in his left knee that his medical team will not fix. As relief, plaintiff requests that 24 the court order prison officials to fix his left knee. 25 For the reasons stated herein, plaintiff’s claims against defendant CIM are barred by the 26 Eleventh Amendment. The Eleventh Amendment bars federal jurisdiction over suits by 27 individuals against a State and its instrumentalities, unless either the State consents to waive its 28 sovereign immunity or Congress abrogates it. Pennhurst State School & Hosp. v. Halderman, 1 1 465 U.S. 89, 99-100 (1984). To overcome this Eleventh Amendment bar, the State’s consent or 2 Congress’ intent must be “unequivocally expressed.” Pennhurst, 465 U.S. at 99. While 3 California has consented to be sued in its own courts pursuant to the California Tort Claims Act, 4 such consent does not constitute consent to suit in federal court. See BV Engineering v. Univ. of 5 Cal., Los Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988). Finally, Congress has not repealed state 6 sovereign immunity against suits brought under 42 U.S.C. § 1983. 7 Defendant CIM is a state agency that is immune from civil rights claims raised pursuant to 8 § 1983. See Pennhurst, 465 U.S. at 100 (“This jurisdictional bar applies regardless of the nature 9 of the relief sought.”); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (the Eleventh 10 Amendment bars claim for injunctive relief against Alabama and its Board of Corrections). 11 Accordingly, plaintiff’s claims against defendant CIM are dismissed because they are barred by 12 the Eleventh Amendment. Plaintiff should not name CIM as a defendant in a second amended 13 complaint. 14 If plaintiff files a second amended complaint, he may name as defendants the members of 15 his medical team who allegedly denied his requests for treatment for his left knee. Plaintiff must 16 describe how and when the team members, named as defendants, denied his requests for 17 treatment. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The February 14, 2019 findings and recommendations (ECF No. 14) are vacated; 20 2. The first amended complaint is dismissed with thirty days to file a second amended 21 complaint; failure to file a second amended complaint within that time will result in a 22 recommendation of dismissal of this action; 23 3. The Clerk of the Court is directed to update court records to reflect plaintiff’s new 24 address at the California Institution for Men in Chino, California (see ECF No. 15). 25 Dated: March 20, 2019 26 27 Drumm2854.fac 28 2

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