(PS) Reedy v. State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN G. REEDY, No. 2:21-cv-0223-TLN-CKD (PS) 12 Plaintiff, ORDER DIRECTING SERVICE 13 v. FINDINGS AND RECOMMENDATION TO DISMISS CLAIMS AGAINST DEFENDANT 14 STATE OF CALIFORNIA, et al., NEWSOM 15 Defendants. (ECF No. 9) 16 17 Plaintiff proceeds pro se and in forma pauperis and seeks relief under 42 U.S.C. section 18 1983. Plaintiff’s second amended complaint is before the court for screening. See 28 U.S.C. § 19 1915(e)(2)(B). Liberally construing the complaint, the court cannot conclude for screening 20 purposes that the complaint is frivolous, fails to state a claim upon which relief can be granted, or 21 seeks monetary relief from an immune defendant except as to defendant Gavin Newsom, 22 Governor of the State of California, sued in his individual and official capacities. 23 As to the individual capacity claims against Governor Newsom, plaintiff fails to allege an 24 affirmative link between Newsom’s conduct and the alleged deprivations. See Rizzo v. Goode, 25 423 U.S. 362, 371 (1976). A state official may have individual liability for depriving a plaintiff of 26 a constitutional right if the state official is personally involved in doing an affirmative act, 27 participating in another’s affirmative act, or omitting to perform an act which that person is 28 legally required to do. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff has failed to 1 allege any facts plausibly supporting a claim that Governor Newsom had any personal 2 involvement in the denial of benefits to plaintiff. 3 Pertaining to the official capacity claims, the Eleventh Amendment prohibits federal 4 courts from hearing suits brought by private citizens against state governments without the state’s 5 consent. Hans v. Louisiana, 134 U.S. 1, 15 (1890); Sofamor Danek Group, Inc. v. Brown, 124 6 F.3d 1179, 1183 (9th Cir. 1997). This immunity extends to state officers who act on behalf of the 7 state. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-46 8 (1993); see also Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (Eleventh Amendment 9 bars § 1983 damages claims against state officials in their official capacity). 10 The Eleventh Amendment does not bar suit in federal court for prospective injunctive 11 relief against a state officer accused of violating federal statutory or constitutional law. See Ex 12 parte Young, 209 U.S. 123, 159-60 (1908). The Ex parte Young exception does not apply here 13 because Governor Newsom is not alleged to have any connection to the enforcement of the 14 allegedly unconstitutional laws. See Id. at 159-60; Coalition to Defend Affirmative Action v. 15 Brown, 674 F.3d 1128, 1134 (9th Cir. 2012). Such a connection to overcome Eleventh 16 Amendment immunity “must be fairly direct[.]” Coalition to Defend Affirmative Action, 674 17 F.3d at 1134 (quoting Los Angeles Cty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)). “[A] 18 generalized duty to enforce state law or general supervisory power over the persons responsible 19 for enforcing the challenged provision will not subject an official to suit.” Id. 20 For the foregoing reasons, plaintiff fails to state a cognizable claim against Governor 21 Newsom in his official or individual capacity. Otherwise, the court orders service of the 22 complaint on the defendants as set forth. This order directing service does not preclude any 23 defendant from challenging plaintiff’s complaint through a timely motion pursuant to Rule 12 of 24 the Federal Rules of Civil Procedure, or any other appropriate method. 25 In accordance with the above, IT IS HEREBY ORDERED: 26 1. Service of the complaint is appropriate for the following named defendants: 27 a. Dr. Mark Ghaly, Secretary, Health and Human Services Agency; 28 b. Kim Johnson, Director of the California Department of Social Services; 1 c. Ann Edwards, Previous Director of the Sacramento County Department of 2 Human Assistance; 3 d. Ethan Dye, Acting Director of the Sacramento County Department of Human 4 Assistance; and 5 e. Eloy Ortiz Oakley, Chancellor and CEO of the Board of Governors of 6 California Community Colleges. 7 2. The Clerk of Court shall issue all process pursuant to Federal Rule of Civil 8 Procedure 4. The Clerk shall send to plaintiff (i) one copy of this order, (ii) one 9 summons and one USM-285 form (with related documents) for each defendant; 10 (iii) one copy of the Consent/Decline form for each named party; and (iv) a copy 11 of the court’s order setting status conference; 12 3. Within 30 days from the date of this order, plaintiff shall supply the U.S. Marshal 13 (501 I Street, 5th Floor, Sacramento, CA 95814) all information needed to 14 effectuate service of process. To do so, the U.S. Marshal will require: 15 a. For each defendant to be served: (i) a copy of this order, (ii) a completed 16 summons and completed USM-285 form, (iii) a Consent/Decline form, and 17 (iv) a copy of the complaint and court’s order setting status conference; 18 b. For the U.S. Marshal: an extra copy of the complaint; 19 4. Within 10 days of submitting the documents to the U.S. Marshal, plaintiff shall file 20 a statement with the court indicating the Marshal has the documents; 21 5. The U.S. Marshal shall serve process––including copies of this court’s scheduling 22 order and Consent/Decline forms for each defendant––within 90 days of receipt of 23 the required information from plaintiff, without prepayment of costs; 24 6. If defendant waives service, the defendant is required to return the signed waiver 25 to the U.S. Marshal. The filing of an answer or a responsive motion does not 26 relieve defendant of this requirement, and the failure to return the signed waiver 27 may subject defendant to an order to pay the costs of service by the U.S. Marshal; 28 //// 1 7. Failure to comply with this order may result in any appropriate sanctions, 2 including monetary sanctions and/or dismissal of the action pursuant to Federal 3 Rule of Civil Procedure 41(b). 4 In addition, IT IS RECOMMENDED that: 5 1. Plaintiff's claims against Governor Gavin Newsom in his individual and official 6 capacity be dismissed. 7 The findings contained herein and the recommendation to dismiss plaintiffs claims 8 | against defendant Newsom are submitted to the United States District Judge assigned to the case 9 || pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with 10 || these findings and recommendations, plaintiff may file written objections with the court. Such a 11 || document should be captioned “Objections to Magistrate Judge’s Findings and 12 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time 13 || may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 14 | 1991). 15 | Dated: August 18, 2021 / ae □□ / a Ly a 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 19 || 8.Reedy.21cv223.serve2AC 20 21 22 23 24 25 26 27 28