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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID CHARLES THATCHER, No. CIV S-04-2547-MCE-CMK

Plaintiff, 

vs. FINDINGS AND RECOMMENDATIONS

M. PENNER, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this civil

rights action pursuant to 42 U.S.C. § 1983. Pending before the court is a motion to dismiss filed

by the State of California (Doc. 19). Plaintiff has not filed an opposition.

In its motion, the State of California seeks dismissal as an immune defendant

under the Eleventh Amendment. The Eleventh Amendment prohibits federal courts from hearing

suits brought against a state both by its own citizens, as well as by citizens of other states. See

Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This

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A state’s agency responsible for incarceration and correction of prisoners is a 1

state agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782

(1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th cir. 1993) (en banc).

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prohibition extends to suits against states themselves, and to suits against state agencies. See

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Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d

1040, 1045 (9th Cir. 1989). The Eleventh Amendment bars actions seeking damages from state

officials acting in their official capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir.

1995); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam). The Eleventh

Amendment does not, however, bar suits against state officials acting in their personal capacities. 

See id. Under the doctrine of Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment

does not bar suits for prospective declaratory or injunctive relief against state officials in their

official capacities. See Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). The Eleventh

Amendment also does not bar suits against cities and counties. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 n.54 (1978). 

Plaintiff’s complaint filed on December 1, 2004, names the following defendants:

M. Penner; Scott Kernan; and the California State Prison, Sacramento. The complaint does not

name the State of California as a defendant. Therefore, the instant motion should be denied as

unnecessary. 

The court must, however, dismiss claims against immune defendants. See 28

U.S.C. § 1915(e)(2). Therefore, to the extent the complaint seeks relief against the California

State Prison, Sacramento, such defendant is a state agency and is immune under the Eleventh

Amendment. Defendant California State Prison, Sacramento, should be dismissed sua sponte.

/ / /

/ / /

/ / /

/ / /

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Based on the foregoing, the undersigned recommends that:

1. The State of California’s motion to dismiss be denied; and

2. Defendant California State Prison, Sacramento, be dismissed sua sponte.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

after being served with these findings and recommendations, any party may file written objections

with the court. The document should be captioned “Objections to Magistrate Judge's Findings

and Recommendations.” Failure to file objections within the specified time may waive the right

to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: October 12, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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