Fitzwater v. City of San Francisco

9 F. App'x 695

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2001
• Docket: No. 99-16114; D.C. No. CV-95-02098-WHO
• Status: Published

Opinion

ORDER

This case is resubmitted for decision effective May 22, 2001.

MEMORANDUM

*

Michael Fitzwater appeals the district court’s order dismissing his action against the City and County of San Francisco alleging that he was subjected to excessive use of force by sheriffs deputies while detained at the San Francisco County Jail. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.

The district court dismissed Fitzwater’s 42 U.S.C. § 1983 claim on the ground that “[sjheriffs in California are state actors” and therefore immune from liability under the Eleventh Amendment. See McMillian v. Monroe County, 520 U.S. 781, 793, 117 S.Ct. 1734,138 L.Ed.2d 1 (1997) (“Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties.”); Han v. United States Dep’t of Justice, 45 F.3d 333, 338 (9th Cir.1995) (per curiam) (Eleventh Amendment bars § 1983 damages claims against state actors sued in their official capacity). We recently decided, however, that when a sheriff in California performs the function of “oversight and management of the local jail,” the sheriff acts for the county, not the state. See Streit v. County of Los Angeles, 236 F.3d 552, 561 (9th Cir.2001). As a result, the City and County of San Francisco are not entitled to Eleventh Amendment immunity on Fitzwater’s § 1983 claim.

REVERSED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.