Flourney v. Does 1-15

• Court: District Court, S.D. California
• Decided: August 3, 2023
• Docket: 3:21-cv-01767
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN FLOURNEY, Case No.: 3:21-cv-01767-RBM-BGS

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO FILE SECOND AMENDED COMPLAINT1 14 FORMER CDCR SECRETARY DIAZ,

ET AL., 15 Defendants. [ECF 34] 16

17 On September 27, 2022, after Plaintiff’s proposed FAC was screened under 28 18 U.S.C. § 1915(e)(2), Plaintiff’s Eighth Amendment claims against Defendants Diaz, 19 Miranda, Kilough, and Mosely were dismissed, and Plaintiff was ordered to serve 20 Defendants Pollard and Kies. (ECF 17 at 5.) Plaintiff has now filed a Motion for Leave 21 to File a SAC.2 (ECF 34.) On July 18, 2023, in accordance with the Court’s directive, 22 23 24 1 Plaintiff captions the filing as an “Amended 3rd Complaint.” (ECF 34 at 1.) The filing 25 is actually a proposed Second Amended Complaint (SAC); Plaintiff filed a Complaint on October 13, 2021 (ECF 1), and a First Amended Complaint (FAC) on June 30, 2022 26 (ECF 15). Throughout this Order, Plaintiff’s Motion (ECF 34) will be referred to as the 27 proposed SAC. 2 A motion for leave to amend pleadings is a nondispositive matter that may be ruled on 28 1 Defendants filed a response in opposition. (ECF 37.) For the following reasons, Plaintiff’s 2 motion is DENIED. 3 Plaintiff’s proposed SAC seeks to “assert his claims against the State of California,” 4 including “the California State Prison at Richard J. Donovan, the Prison Warden M. 5 Pollard,” and several other prison personnel. (ECF 34 at 4.) The proposed SAC also 6 includes allegations against Defendants Pollard and Kies that were alleged in Plaintiff’s 7 FAC. (Compare id. at 6-7, with ECF 15 at 11-13). 8 In determining whether to allow a party to amended a pleading, a court considers 9 whether the motion is made in bad faith, would cause undue delay, would prejudice the 10 opposing party, and would be futile. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th 11 Cir. 1996). “‘[T]he State and arms of the State . . . are not subject to suit under [42 U.S.C. 12 § 1983] in either federal court or state court.’” Palmieri v. Super. Ct., No. 13cv0550 MMA 13 (DHB), 2013 WL 2089867, *1 (S.D. Cal. May 14, 2013) (quoting Howlett v. Rose, 496 14 U.S. 356, 365 (1990)). “The State of California . . . sued in [its] official capacity [is] 15 entitled to absolute immunity from monetary damages actions under the Eleventh 16 Amendment.” Id. It cannot be sued for damages under section 1983. Id. (citing Will v. 17 Mich. Dep’t of State Police, 491 U.S. 58, 63-64, 71 n. 10 (1989)). The State of California 18 is entitled to absolute immunity from monetary damages actions under the Eleventh 19 Amendment. Id. (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996)). 20 Because the State of California and arms of the State cannot be sued for damages 21 under Section 1983, granting Plaintiff leave to file a SAC that asserts claims against the 22 State of California and arms of the State would be futile. See Cahill, 80 F.3d at 339. 23 Furthermore, to the extent that Plaintiff seeks to assert additional claims against individual 24 defendants, Defendants Pollard and Kies, the allegations in the proposed SAC are no 25 different than allegations in Plaintiff’s FAC. Plaintiff’s motion is, therefore, DENIED. 26

27 Ltd., 351 F.3d 911, 917 (9th Cir. 2003) (deeming a motion for leave to amend a 28 1 IT IS SO ORDERED. 2 ||Dated: August 3, 2023 2 i. 2 p ( / 3 on. Bernard G. Skomal 4 United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28