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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

VINCENT DANIEL HOPPER,

Plaintiff,

v.

JOHN DOE MYERS RECREATIONAL

COACH NORTHWEST DETENTION

CENTER et al.,

Defendants.

Case No. C05-5680RBL

REPORT AND

 RECOMMENDATION

NOTED FOR:

JUNE 30h

 , 2006

This Bivens action has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C.

§§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and MJR 4. Before the Court

is defendant’s motion to dismiss. (Dkt. # 67). Defendant’s previously filed motion to dismiss has been

withdrawn. (Dkt. # 50).

In the current motion defendants argue:

Petitioner alleges a violation of his constitutional right of access to the courts, claiming

that the contents of the law library at the Northwest Detention Center (“NWDC”) is inadequate.

Petitioner also raises challenges to the telephone system at the NWDC. Petitioner has named the

warden of the NWDC and numerous NWDC employees both in their official and personal

capacities. 

Petitioner has also named Michael Melendez, Officer in Charge at the Bureau of

Immigration and Customs Enforcement (“BICE”), in his official capacity, and BICE in its

official capacity. But Petitioner cannot maintain a Section 1983 or Monell action against the

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REPORT AND RECOMMENDATION

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Federal Respondents in their official capacity. The United States has also have [sic] not waived

sovereign immunity such that Petitioner can maintain an action for alleged constitutional

violations against the Federal Respondents in their official capacities. As such, the Federal

Respondents must be dismissed from this law suit.

(Dkt. # 67 page 1 and 2).

DISCUSSION

Defendants misconstrue the nature of the complaint and the difference between an official and

individual capacity suit. A government employee, federal or state, cannot be sued for damages in their official

capacity in federal court. Such a suit would in fact be a suit against the government itself. The government

enjoys immunity, either sovereign or under the Eleventh Amendment. When a government employee federal

or state does violate a persons rights they are acting beyond their legal authority and may be sued for damages

in their individual capacity.

When a person is seeking injunctive relief to prevent future violations, the government employee must

be sued in their official capacity. It is in their official capacity that the government employee has the authority

to act on behalf of the government and initiate the changes needed to carry out the injunctive relief. Kentucky

v. Graham, 473 U.S. 159 (1985).

With these concepts in mind the court considers defendants motion. Plaintiff seeks damages as well as

injunctive relief. (Dkt. # 17). Therefore it is appropriate that he names the defendants in both their individual

and official capacity. As defendants note, defendant Michael Melendez is named only in his official capacity

as the officer in charge at the Bureau of Immigration and Customs Enforcement, “BICE.”. Review of the

complaint shows that plaintiff does not indicate defendant Melendez personally participated in any violation of

his rights. The court concludes that Melendez is named as a defendant for injunctive purposes only.

BICE itself is also a named defendant. Defendants are correct in noting that this defendant must be

dismissed. The government itself enjoys sovereign immunity. 

In conclusion defendants motion should be DENIED as to all defendants except BICE. BICE should

be dismissed from this action. A proposed order accompanies this Report and Recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ.

P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v

Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to

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set the matter for consideration on June 30th, 2006, as noted in the caption. 

DATED this 1st day of June, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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