2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 JANELLE HARNESS; ZIONNAH SMARR, 1:19-cv-01451-LJO-EPG THROUGH HER GUARDIAN AD LITEM; 6 AND BRAYDEN SMARR, THROUGH HIS MEMORANDUM DECISION AND GUARDIAN AD LITEM, ORDER GRANTING UNOPPOSED 7 MOTION TO DISMISS, VACATING Plaintiffs, HEARING, AND REMANDING CASE 8 TO KERN COUNTY SUPERIOR v. COURT (ECF No. 8) 9 CALIFORNIA HIGHWAY PATROL; 10 UNKNOWN OFFICER DOE 1; UNKNOWN OFFICER DOE 2; AND DOES 3 THROUGH 11 25, INCLUSIVE, 12 Defendants. 13 14 On July 23, 2019, plaintiffs Janelle Harness, Brayden Smarr, and Zionnah Smarr (“Plaintiffs”) 15 filed a civil rights and wrongful death action in the Superior Court of California, County of Kern. ECF 16 No. 1 at ¶ 1. Plaintiffs filed an amended complaint on July 31, 2019. ECF No. 1, Ex. A (“FAC”). The 17 case was removed to this Court on October 14, 2019. ECF No. 1. 18 The claims concern an officer-involved shooting that occurred on February 8, 2019 in an 19 unincorporated area of Kern County. See generally FAC. Plaintiffs allege decedent, Aaron Przkeop, was 20 shot and killed by an unknown California Highway Patrol (“CHP”) Officer or Officers. Id. at ¶ 9. The 21 FAC contains a single state law wrongful death claim and a single claim arising under 42 U.S.C § 1983 22 (“Section 1983”). See generally FAC. The only named defendant at this time is the CHP, although 23 allegations are leveled at various “Doe” CHP officers as well. Id. 24 On November 13, 2019, the CHP moved to dismiss the Section 1983 claim in its entirety on the 25 2 CHP also moved to dismiss the wrongful death claim as to Plaintiff Janelle Harness on the ground that 3 she lacks standing to sue. Id. On November 29, 2019, Plaintiffs filed a statement of non-opposition, 4 indicating that they do not oppose any aspect of the Motion. ECF No. 9. 5 Having reviewed the Motion in light of the entire record, including Plaintiffs’ non-opposition, 6 the Court finds the Motion suitable for decision on the papers pursuant to Local Rule 230(g) and 7 GRANTS the Motion in its entirety. 8 It is well established that CHP is an arm of the State of California and therefore cannot be sued 9 for monetary damages under Section 1983. See Herrera v. Cal. Highway Patrol, No. 1:15-CV-01882 10 TLN SAB, 2017 WL 590244, at *1 (E.D. Cal. Feb. 14, 2017); Quilici v. Cal. Highway Patrol, No. 2:16- 11 CV-1523 MCE AC (PS), 2016 WL 3906691, at *2 (E.D. Cal. July 18, 2016). Likewise, the Court agrees 12 that, as a parent of decedent, Plaintiff Harness has not pled eligibility to recover under California Code 13 of Civil Procedure § 377.0(a). 14 Plaintiffs have not requested leave to amend the federal claim, nor does it appear possible to 15 amend to state a Section 1983 claim for damages against the individual “Doe” CHP Officers. Actions 16 against state officials in their official capacities are treated as suits against the State and are therefore 17 generally barred by the Eleventh Amendment. Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. 18 Dep’t. of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010). 19 “[D]istrict courts may decline to exercise supplemental jurisdiction over a claim . . . if the 20 district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). 21 “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to 22 be considered under the pendent jurisdiction doctrine – judicial economy, convenience, fairness, and 23 comity – will point toward declining to exercise jurisdiction over the remaining state-law claims.” 24 Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (quoting Carnegie-Mellon Univ. v. 25 Cohill, 484 U.S. 343, 350 n. 7 (1988)). Under 28 U.S.C. § 1447(c), the court must remand an action sua 2 Innoventions Int’l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016) (“No motion, timely or otherwise, is 3 necessary: ultimate responsibility to ensure jurisdiction lies with the district court.”). 4 CONCLUSION AND ORDER 5 For the reasons set forth above: 6 (1) The CHP’s Motion is GRANTED in its entirety; 7 (2) The hearing on the Motion, currently set for December 16, 2019, is VACATED; and 8 (3) This case is REMANDED to the Superior Court for the County of Kern. 9 10 IT IS SO ORDERED. 11 Dated: December 3, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25