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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KELLY TERRY, No. CIV S-04-2451-MCE-CMK-P

Plaintiff, 

vs. FINDINGS AND RECOMMENDATIONS

JUSTIN WARD, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983. Pending before the court is plaintiff’s second amended complaint (Doc.

15), filed on May 13, 2005. 

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or

malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). As

discussed in more detail in the court’s order issued herewith, plaintiff’s complaint names a

number of defendants who are entitled to dismissal from the action.

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The complaint names the “California Board of Corrections,” which the court 1

assumes to be the California Department of Corrections.

A state’s agency responsible for incarceration and correction of prisoners is a 2

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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First, plaintiff names the California Department of Corrections as a defendant.1

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. Sulphar Springs Valley

Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition extends to suits against states

themselves, and to suits against state agencies. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 2

(9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Therefore, the

action should be dismissed as against defendant California Department of Corrections.

Second, plaintiff names state court judges Oss, Guilani, Hammerstone, Lucaccini,

Mallett, and Garrigan, as defendants. Judges are absolutely immune from damage actions for

judicial acts taken within the jurisdiction o their courts. See Schucker v. Rockwood, 846 F.2d

1202, 1204 (9th Cir. 1988) (per curiam). Therefore, the action should be dismissed as against

defendants Oss, Guilani, Hammerstone, Lucaccini, Mallett, and Garrigan.

Third, the complaint names state prosecuting attorneys Phillips, Puckett, and

Mayo as defendants. Prosecutorial immunity protects eligible government officials when they

are acting pursuant to their official role as advocate for the state. See Imbler v. Pachtman, 424

U.S. 409, 430 (1976). This immunity extends to actions during both the pre-trial and post-trial

phases of a case. See Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984). State

prosecutors are entitled to absolute prosecutorial immunity for acts taken in their official

capacity. See Kalina v. Fletcher, 522 U.S. 118, 123-25 (1997). Therefore, the action should be

dismissed as against defendants Phillips, Puckett, and Mayo.

/ / /

/ / /

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Fourth, the complaint names state public defenders Telschow, Luna, Schultz,

Lundeberg, Quinn, Ambrose, and Everett as defendants. When public defenders are acting in

their role as advocates, they are not acting “under color of state law” for purposes of liability

under § 1983. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County v. Dodson, 454

U.S. 312, 320-25 (1981). Therefore, the action should be dismissed as against defendants 

Telschow, Luna, Schultz, Lundeberg, Quinn, Ambrose, and Everett.

Based on the foregoing, the undersigned recommends that the action be dismissed

as against defendants California Department of Corrections, Oss, Guilani, Hammerstone,

Lucaccini, Mallett, Garrigan, Phillips, Puckett, Mayo, Telschow, Luna, Schultz, Lundeberg,

Quinn, Ambrose, and Everett.

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: November 2, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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