Opinion
2:20-cv-11342-FWS-SHK
11-15-2022
SEARCHING BEAR MOLOKA'I MARTIN, Plaintiff, v. RAYBON C. JOHNSON, et al., Defendants.
ORDER GRANTING MOTION TO DISMISS COMPLAINT WITH LEAVE TO AMEND
HON. SHASHI H. KEWALRAMANI, UNITED STATES MAGISTRATE JUDGE.
On November 21, 2020, Plaintiff Searching Bear Moloka'i Martin (“Plaintiff”), proceeding pro se and In Forma Pauperis (“IFP”), constructively fileda complaint (“Complaint” or “Compl.”) alleging civil rights violations pursuant to 42 U.S.C. § 1983 (“§ 1983”) against Raybon C. Johnson (“Johnson”) and Ericka Lake (“Lake”) (collectively, “Defendants”) in their official capacities. Electronic Case Filing Number (“ECF No.”) 1, Compl. at 1-3. On March 24, 2022, Defendants filed a Motion to Dismiss Plaintiff's Complaint (“Motion to Dismiss” or “MTD”). ECF No. 34, MTD.
Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).
For the reasons discussed in this Order, Defendants' Motion to Dismiss is GRANTED and the Complaint is DISMISSED without prejudice and with leave to amend.
I. BACKGROUND
A. Procedural History
On December 14, 2020, the Court received the Complaint. ECF No. 1, Compl. On January 12, 2021, the Court received Plaintiff's Request to Proceed IFP, ECF No. 5, which the Court granted on January 25, 2021, ECF No. 6. On September 28, 2021, Plaintiff filed a Motion to Compel, ECF No. 8, which the Court denied on October 11, 2021, ECF No. 11. On October 8, 2021, the Court ordered that the Complaint be filed and authorized Plaintiff to serve the Complaint on Defendants. ECF No. 9. On November 3, 2021, the Court received Plaintiff's Motion for Injunctive Relief, ECF No. 16, which the Court denied on May 19, 2022, ECF No. 46.
On March 24, 2022, Defendants filed the Motion to Dismiss. ECF No. 34, MTD. On May 25, 2022, the Court received Plaintiff's Opposition to the Motion to Dismiss (“Opposition” or “Opp'n to MTD”). ECF No. 47, Opp'n to MTD. On June 22, 2022, Defendants filed a Reply in Support of the Motion to Dismiss (“Reply”). ECF No. 51, Reply. On June 23, 2022, the Court received Plaintiff's Request for Appointment of Counsel, ECF No. 53, which the Court denied on June 29, 2022, ECF No. 54.
B. Summary of Complaint, Motion to Dismiss, Opposition, and Reply
1. Factual Allegations in Complaint
In the Complaint, Plaintiff makes the following factual allegations, which the Court accepts as true at this stage of the litigation.
Plaintiff is an inmate housed at California State Prison, Los Angeles County (“CSP-LAC”) in Lancaster, California. ECF No. 1, Compl. at 1. Plaintiff directs his allegations against Raybon Johnson, Warden at CSP-LAC, and Ericka Lake, Community Resource Manager (“CRM”) at CSP-LAC. Id. at 3. As Warden, Johnson is “directly responsible for all custody staff” at CSP-LAC, and as CRM, Lake is “directly in charge of all spiritual/religious groups/programs.” Id.
Where this Order quotes Plaintiff's filings, all capitalization has been normalized.
Since arriving at CSP-LAC on August 19, 2016, Plaintiff's “ability to freely, and traditionally . . . practice [his] spirituality as a Native American” has been infringed. Id. at 5. Plaintiff's access to ceremonial grounds, traditional medicines, and traditional items such as a drum, rattle, and pipe has been “denied on a multitude of occasions,” and religious items in Plaintiff's possession have been “desecrated, damaged, and stolen.” Id. Plaintiff has never had access to a spiritual advisor or tribal volunteer; on the rare occasions Plaintiff has been given access to “ceremony and traditional item(s),” it has been under “extremely restrictive” conditions. Id.
Lake has denied CSP-LAC's Native American population access to ceremony grounds and sacred traditional items. Id. Lake has “upset the Native communities/organizations to the point where they no longer want to assist” Native American inmates at CSP-LAC, and she has refused to hire a Native American spiritual advisor or “allow Native volunteers . . . to assist the Native population.” Id. Lake has generally refused to meet with the Native American population to address their concerns, and in the one meeting to which she assented, Lake expressed that she “‘does not care what is going on with the Native [American] population.'” Id.
Johnson has been “made aware” of the problems Native Americans at CSP-LAC are having regarding their religious practices but has done nothing to address them. Id.
2. Claims and Relief Requested
In the Complaint, Plaintiff does not state any specific claims. Plaintiff does, however, request punitive damages against Lake and Johnson. Id. at 6. Plaintiff also seeks injunctive relief in the form of: (1) the “immediate removal” of Johnson and Lake; (2) the hiring of a new Warden and CRM; (3) the “immediate hiring of a Native American spiritual advisor”; (4) an order granting access to Native American ceremony grounds; (5) “[r]egularly scheduled ceremonies”; (6) regular access to sacred, traditional items and “the ability to obtain [and] possess” these items; (7) the immediate abolishment of the “Religious Personal Property Matrix”; (8) the establishment of a committee made up of California Department of Corrections and Rehabilitation (“CDCR”) staff and members of the Native American community to regularly meet and address Native inmates' concerns; and (9) “possibly more to come in the future.” Id.
3. Defendants' Motion to Dismiss
In the Motion to Dismiss, made pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(6), Defendants assert that the Complaint fails to state a claim for relief because: (1) Plaintiff “fails to state a cognizable claim” against Defendants; and (2) Plaintiff's “claims for monetary damages, against Defendants in their official capacity, are barred by the Eleventh Amendment.” ECF No. 34, MTD at 12.
Defendants argue that the Complaint violates Rule 8 because it “contains no information to clarify when the alleged violations occurred, how they occurred, or why Defendants' challenged conduct amounts to a violation of Plaintiff's rights.” Id. at 3. Further, Plaintiff “has not set forth the legal bases for his claims,” as he “does not specify what law or constitutional amendment Defendants allegedly violated.” Id. at 6-7. With respect to Johnson, Defendants argue that the Complaint does not explain how or when Johnson was allegedly “made aware” of issues faced by the Native American population at CSP-LAC, the specific nature of those issues, or the circumstances surrounding Johnson's purported decision to “do nothing”; thus, Plaintiff has failed to sufficiently notify Johnson of his allegedly wrongful acts. Id. at 7. With respect to Lake, Defendants assert that the Complaint does not explain how Lake denied the CSP-LAC Native American population access to ceremonial grounds or religious items, how she “upset the Native communities,” or why Plaintiff believes, inter alia, that Lake refused to hire a Native American spiritual advisor. Id. Plaintiff also fails to specify when any of the alleged deprivations occurred; this “generalized timeframe,” combined with the lack of supporting allegations, fails to properly notify Lake of the nature of the claims against her or the purportedly wrongful conduct at issue. Id.
Defendants argue that the Complaint relies on an impermissible theory of vicarious liability against Johnson, as Plaintiff has not alleged any specific acts by Johnson to demonstrate that he personally deprived Plaintiff of his religious rights, and Johnson's purported knowledge of the alleged misconduct is not sufficient to establish liability. Id. at 8. Further, Plaintiff's claims for monetary damages are barred by the Eleventh Amendment because Defendants are employees of a state agency and Plaintiff sues them only in their official capacities. Id. at 9-10.
4. Plaintiff's Opposition to Motion to Dismiss
In the Opposition, Plaintiff states that this action was filed to address violations of his First, Eighth, and Fourteenth Amendment rights, and that “[f]urther violation(s) include, but are not limited to”: the American Indian Religious Freedom Act (“AIRFA”); the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); the CDCR Tribal Consultation Policy; the CDCR Department Operations Manual (“D.O.M.”), and several articles of the U.N. Declaration on the Rights of Indigenous Peoples. ECF No. 47, Opp'n to MTD at 1. Plaintiff states that he has submitted “numerous informal, and formal request(s)” to Johnson and Lake in effort to rectify “the various issue(s)” but “no remedies have been achieved,” resulting in the inability for Plaintiff and the Native population at CSP-LAC to “freely exercise [their] sincerely held spiritual/religious beliefs.” Id. Thus, Plaintiff seeks monetary compensation of at least $600,000. Id.
Plaintiff further asserts that he made numerous requests and complaints to Lake and submitted “confidential letters” to Johnson regarding his concerns, which can be accessed in his “central file” at CSP-LAC. Id. at 2. Plaintiff asks the Court to compel the CDCR to allow him to review his central file so Plaintiff can substantiate that he has made attempts to remedy the issues facing Native Americans' spiritual practice at CSP-LAC. Id.
As for Defendants' arguments that the Complaint failed to state a plausible claim, Plaintiff asserts that his Complaint “was in fact sufficiently plausible” and that “[g]iven appropriate time and opportunity, [Plaintiff] will . . . prove the illegal and unconstitutional violation(s) perpetuated” by Defendants. Id. In response to Defendants' arguments regarding state sovereign immunity, Plaintiff claims that Defendants are not “protected/barred from legal responsibility” under the Eleventh Amendment “because they knowingly, and willingly continued to violate Plaintiff's constitutional right(s)” even after being made aware of those violations. Id. at 3.
5. Defendants' Reply in Support of Motion to Dismiss
In the Reply, Defendants argue that the Opposition essentially repeats the conclusory allegations pleaded in the Complaint. ECF No. 51, Reply at 2. Plaintiff fails to show that the Complaint contains sufficient factual detail to give Defendants notice of the specific conduct or omissions upon which their alleged liability is premised. Id. Defendants assert that, inter alia, Plaintiff still has not explained what specific difficulties he faced in practicing his religion at CSP-LAC, nor how Defendants specifically hindered that practice; the grievances Plaintiff allegedly filed do not establish that Defendants participated in constitutional violations; Plaintiff has still failed to state a claim under any legal theory; and Plaintiff failed to counter that his damages claims are barred by the Eleventh Amendment. Id. at 2-3.
Further, Defendants state that RLUIPA, which Plaintiff identifies for the first time in his Opposition as a potential basis for his claims, does not allow for monetary damages against Defendants in their official capacities. Id. at 4 (citations omitted). Defendants also argue that Plaintiff seeks to use discovery to help state a plausible claim, but Plaintiff is not entitled to discovery unless and until he states a plausible claim. Id. Defendants assert that Plaintiff improperly incorporates factual allegations in the Opposition that were not in the Complaint, and that these new allegations are largely irrelevant and related to an individual who is not a named party in this lawsuit. Id. at 5-6.
Finally, Defendants argue that the Opposition identifies several new potential legal bases for Plaintiff's claims without any attempt to demonstrate how exactly these “provisions, laws, regulations, [and] policies” were violated, and that the number of provisions cited “vastly expands the potential scope of the case, which does not give Defendants fair notice of the legal direction the case may take.” Id. at 6-7.
II. STANDARD OF REVIEW
Under Rule 12(b)(6), a defendant may move to dismiss an action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
A complaint may be dismissed for failure to state a claim “where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007) (citation and internal quotation marks omitted). In considering whether a complaint states a claim, a court must accept as true all allegations of material fact. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). However, the court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation and internal quotation marks omitted). Although a complaint need not include detailed factual allegations, it “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
In analyzing a Rule 12(b)(6) motion, “the Court is generally limited to the face of the complaint, materials incorporated into the complaint by reference, and matters suitable for judicial notice, as well as exhibits attached to the complaint.” Ismail v. Cnty. of Orange, 917 F.Supp.2d 1060, 1066 (C.D. Cal. 2012) (internal citations omitted).
“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008) (citations and internal quotation marks omitted). The court has “an obligation where the p[laintiff] is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the p[laintiff] the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted).
If the Court finds that the complaint should be dismissed for failure to state a claim, the Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-28 (9th Cir. 2000). Leave to amend should be granted if it appears possible the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11; see also Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (upholding dismissal without leave to amend where additional facts did not establish elements of claim).
III. DISCUSSION
A. The Complaint Fails to Satisfy Rule 8.
Plaintiff's complaint must contain a “short and plain statement of the claim showing the pleader is entitled to relief,” and “[e]ach allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(a), (d). Further, it must “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (citation and internal quotation marks omitted).
To satisfy Rule 8, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” meaning that it would allow the court “to draw reasonable inferences that the defendant is liable for the misconduct alleged.” Cook, 637 F.3d at 1004 (citation and internal quotation marks omitted). A plaintiff must plainly state facts showing each individual defendant was directly and personally involved in inflicting the alleged injury, or the complaint may be subject to dismissal. See Iqbal, 556 U.S, at 676; see also Sherrell v. Bank of Am., N.A., No. CV F 11-1785 LJO JLT, 2011 WL 6749765, at *4 (E.D. Cal. Dec. 22, 2011) (“Specific identification of the parties to the activities alleged by [a plaintiff] is required . . . to enable the defendant to plead intelligently.”) (citation and internal quotation marks omitted). A complaint may also be dismissed for failure to state a claim “where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Zamani, 491 F.3d at 996.
In the present case, Plaintiff fails to satisfy Rule 8 both because the Complaint lacks sufficient factual allegations to allow the Court to reasonably infer Johnson and Lake could be liable for the alleged misconduct, and because the Complaint does not advance a cognizable legal theory.
First, Plaintiff fails to plead sufficient facts against Defendants to state a plausible claim for relief. See Iqbal, 556 U.S, at 678.
In deciding whether the Complaint satisfies Rule 8, the Court does not consider factual allegations and legal bases asserted for the first time in Plaintiff's Opposition, because the Complaint itself must contain sufficient factual material to survive a motion to dismiss. See Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers such as a memorandum in opposition to a defendant's motion to dismiss.”) (emphasis in original); Jacobson v. Schwarzenegger, 357 F.Supp.2d 1198, 1204 (C.D. Cal. 2004) (“[I]n determining the sufficiency of the complaint, the court may not consider the new allegations and exhibits contained in the plaintiff's opposition.”). While Plaintiff is free to include the additional factual material and potential bases for liability asserted in his Opposition in any future amended complaints, the Court cannot include these materials in its analysis of Defendants' Rule 12(b)(6) motion. See Ismail, 917 F.Supp.2d at 1066.
For example, in the Opposition, Plaintiff accuses Defendants of violating the First, Eighth, and Fourteenth Amendments, as well as several statutes, provisions, and polices related to religious freedom and the treatment of Native Americans, see ECF No. 47, Opp'n to MTD at 1, but the Complaint itself does not specify any potential legal basis for Plaintiff's claims, see generally ECF No. 1. Compl.
When examining only the Complaint-and setting aside conclusory allegations, unwarranted deductions of fact, and unreasonable inferences, see Gilead Scis., 536 F.3d at 1055-the Court finds Plaintiff fails to show that Defendants were directly and personally involved in inflicting the alleged injury. See Iqbal, 556 U.S. at 676. The allegations against Johnson are threadbare; Plaintiff merely asserts that Johnson was “made aware” of the issues facing CSP-LAC's Native American population and did not act. ECF No. 1, Compl. at 5. Plaintiff offers no support for these vague accusations, and the Court cannot, thus, reasonably infer that Johnson was in any way directly involved in the alleged infringement of Plaintiff's spiritual practice.
The Court does not consider Plaintiff's allegations in the Opposition that he submitted “confidential letters” to Johnson, see ECF No. 47, Opp'n to MTD at 2, because, as discussed, the Court may not evaluate new allegations made outside of the Complaint in determining the sufficiency of the Complaint see Jacobson. 357 F.Supp.2d at 1204.
And while Plaintiff's includes a few more factual allegations against Lake, they still lack the minimum factual and legal basis needed to survive a Rule 12(b)(6) motion. For example, where Plaintiff asserts that Lake has “upset the Native communities/organizations to the point where they no longer want to assist” inmates at CSP-LAC, see id., Plaintiff fails to explain what organizations he is referring to, which of Lake's specific actions or inactions upset these organizations, when Lake purportedly angered these organizations, how these organizations assisted inmates at CSP-LAC before Lake allegedly upset them, or why Plaintiff believes that these organizations ceased working with Native inmates at CSP-LAC specifically because of Lake. Where Plaintiff merely states that Lake refuses to “allow Native volunteers to come in to assist the Native [American] population,” see id., he fails to explain what type of volunteers he is discussing, their importance to Native American religious practice, or when Lake refused to allow these volunteers into CSP-LAC. These are the type of basic underlying factual pleadings that would have sufficiently armed the Complaint against a Rule 12(b)(6) motion. Without any context or factual support for Plaintiff's claims, the Court cannot reasonably infer that Defendants may be liable for the alleged misconduct, and thus, the Complaint fails to satisfy Rule 8.
Second, the Complaint lacks a cognizable legal theory, or the facts necessary to support a cognizable theory. See Zamani, 491 F.3d at 996.
As discussed, Plaintiff does not state any legal basis for his claims in the Complaint itself. Plaintiff does not identify which federal law or constitutional provisions Defendants allegedly violated; he brings this action pursuant to § 1983 without specifying the underlying right or rights of which he was allegedly deprived. See generally ECF No. 1, Compl.
But even assuming, based on the facts pleaded in the Complaint, that Plaintiff is alleging Defendants violated his First Amendment right to freely exercise his religion, Plaintiff has not offered a viable legal theory as to why Johnson is liable for that deprivation. Plaintiff's claim against Johnson appears to be premised solely on Johnson, as Warden, being “responsible for all of the employees” at CSP-LAC. See id. at 5. But under § 1983, a supervisory official generally cannot be held liable based merely on knowledge of a subordinate's conduct; a plaintiff must show some causal connection between the supervisor's allegedly wrongful conduct and the constitutional violation at issue. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”); West v. Atkins, 487 U.S. 42, 54 n.12 (1988) (“And § 1983 liability is not available under the doctrine of respondeat superior.”); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) (finding no vicarious liability for a municipal “person” under § 1983). Thus, as currently pleaded, the Complaint does not contain a viable legal theory as to Johnson's liability.
Therefore, Plaintiff's claims against Defendants fail and are subject to dismissal with leave to amend.
B. Plaintiff's Damages Claims are Barred by the Eleventh Amendment.
The Eleventh Amendment to the United States Constitution sets out the principle of State sovereign immunity, and states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. In other words, “[t]he Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991) (citations omitted).
Eleventh Amendment immunity “extends to state departments, agencies, boards, and commissions, and to state employees acting in their official capacity because a suit against them is regarded as a suit against the State itself.” Planned Parenthood Arizona, Inc. v. Brnovich, 172 F.Supp.3d 1075, 1086 (D. Ariz. 2016) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)). The CDCR is an agency of the State of California and, therefore, the CDCR is entitled to Eleventh Amendment immunity under the U.S. Constitution. See Brown v. Cal. Dep't of Corr., 554 F.3d 747, 752 (9th Cir. 2009).
State officials sued in their official capacities are not persons subject to civil rights claims for monetary damages under § 1983. See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“The Eleventh Amendment bars claims for damages against a state official acting in his . . . official capacity.”); see also Will, 491 U.S. 58, 65-66 (finding that “a State is not a ‘person' within the meaning of § 1983”). However, state officials may be sued under § 1983 in their official capacities “for prospective declaratory or injunctive relief for their alleged violations of federal law.” Assoc. des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (citation and internal quotation marks omitted). Similarly, the Eleventh Amendment does not bar claims for damages against state officials sued in their individual capacities under § 1983. See Hafer v. Melo, 502 U.S. 21, 26-27 (1991).
To overcome the Eleventh Amendment bar on federal jurisdiction over suits by individuals against a State and its instrumentalities, either the State must have “unequivocally expressed” its consent to waive its sovereign immunity or Congress must have abrogated it. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984); Virginia Office for Protect. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011). California has consented to be sued in its own courts pursuant to the California Tort Claims Act, but this does not extend to consent to be sued in federal court. See BV Eng'g v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1396 (9th Cir. 1988). Further, the U.S. Congress has not abrogated, or waived, state sovereign immunity against suits under § 1983.
Here, Plaintiff sues Defendants only in their official capacities and seeks both monetary damages and injunctive relief. See ECF No. 1, Compl. at 3, 6. Defendants work for CSP-LAC, meaning that they are employees of the CDCR, which is an agency of the State of California. Thus, Defendants are immune from civil damages claims for alleged violations of federal law brought against Defendants in their official capacities. See Mitchell, 818 F.3d at 442. Since the State of California has not waived its immunity from suit in this instance, see BV Eng'g, 858 F.2d at 1396, Plaintiff's claims for monetary damages against Defendants in their official capacities are barred by the Eleventh Amendment and are subject to dismissal with leave to amend.
However, Plaintiff's requests for prospective injunctive relief against Defendants in their official capacities are not so barred by the Eleventh Amendment. See Assoc. des Eleveurs de Canards, 729 F.3d at 943. Nor would Plaintiff be barred from seeking damages for violations of federal law against Defendants in their individual capacities. See Hafer. 502 U.S. at 31.
IV. CONCLUSION
Accordingly, IT IS ORDERED that the Motion to Dismiss is GRANTED and Plaintiff's Complaint is dismissed in its entirety, without prejudice, and with leave to amend. It is further ordered that, if Plaintiff would like to continue to prosecute this action, Plaintiff file a First Amended Complaint (“FAC”) within twenty-one days of the service date of this Order.
On the first page, Plaintiff should clearly designate on the face of the document that it is the “First Amended Complaint,” include the docket number assigned to this case, and write the amended pleading on this Court's CV-066 form, which the Clerk of Court is directed to mail to Plaintiff along with this Order.
In the body of the FAC, Plaintiff must include all facts and claims that Plaintiff would like to pursue, even if Plaintiff previously stated them in the original Complaint, but that follow the Federal Rules of Civil Procedure described previously. If Plaintiff does not raise a claim in the FAC, the Court will consider it waived. Plaintiff cannot refer to the original Complaint or any other pleading, attachment, or document to state a claim in the FAC. Plaintiff cannot include in the body of the FAC any new defendants or new allegations that are not reasonably related to the claims asserted in the original Complaint.
For the claims that the Court found deficient in the above Order, Plaintiff must fix the deficiencies consistent with the Court's Order in the FAC if Plaintiff wishes to continue litigating those claims. Plaintiff should note that if Plaintiff files a FAC restating deficient claims without fixing them, the Court may not allow Plaintiff another opportunity to file an amended complaint and instead may dismiss the action. If there are claims which the Court did not find deficient, Plaintiff must still re-plead those claims in the FAC in its entirety if Plaintiff seeks to continue litigating the claims.
Plaintiff is cautioned that if Plaintiff does not timely file a FAC, the Court will recommend that this action be dismissed with or without prejudice for failure to state a claim, failure to prosecute, and/or failure to obey Court orders under Federal Rule of Civil Procedure 41(b). Dismissal “with prejudice” means that Plaintiff will not be able to bring this action in federal court again, while “without prejudice” means Plaintiff can re-file this action in this Court. If Plaintiff believes more time is necessary to file a FAC, Plaintiff may request an extension of time from the Court before the 21-day period mentioned above expires. However, the Court will only grant an extension if Plaintiff demonstrates good cause for needing more time (for example, if Plaintiff has requested police reports to determine Defendants' names but will not receive them in time to file an amended complaint).
Plaintiff is advised that the Court's determination in this Order that the allegations in the Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual matter in the pleading, accepted as true, to state a claim to relief that is viable on its face, Plaintiff is not required to omit any claim in order to pursue this action. However, if Plaintiff asserts a claim in the FAC that has been found to be deficient without addressing the claim's deficiencies, then the Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to Plaintiff's right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges.
Finally, Plaintiff may voluntarily dismiss the action without prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to mail Plaintiff a blank Notice of Dismissal Form.