Janelle A. Smith v. State of Washington

24 F.3d 249, 1994 U.S. App. LEXIS 18857, 1994 WL 184691

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 1994
• Docket: 93-36140
• Status: Published

Opinion

24 F.3d 249
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Janelle A. SMITH, Plaintiff-Appellant,
v.
STATE OF WASHINGTON, Defendant-Appellee.

No. 93-36140.

United States Court of Appeals, Ninth Circuit.

Submitted May 11, 1994.*
Decided May 13, 1994.

Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges.

MEMORANDUM**

Janelle A. Smith appeals pro se the district court's summary judgment for the State of Washington in Smith's 42 U.S.C. Sec. 1983 action alleging that the state judiciary violated her right to due process by refusing to award her custody over her daughter. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

We review the district court's grant of summary judgment de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992).

Under the Eleventh Amendment, a state is immune from suit brought in federal court by her own citizens as well as by citizens of another state. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The Eleventh Amendment does not, however, bar section 1983 actions against state officials sued in their individual capacities. Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir.1988). Although a state may waive its sovereign immunity by consenting to suit in federal court, such waiver must be unequivocally expressed. Pennhurst, 465 U.S. at 99. The State of Washington has waived its sovereign immunity to section 1983 actions in its own courts, but not in federal courts. McConnell v. Critchlow, 661 F.2d 116, 117 (9th Cir.1981).

Here, Smith did not name any state officials as defendants. Rather, Smith named only the State of Washington alleging that state courts issued orders that unconstitutionally deprived her of custody of her daughter. Thus, because there is no genuine issue of material fact and the State of Washington clearly is immune from suit, the district court did not err by granting summary judgment for the state. See Pennhurst, 465 U.S. at 100.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Smith's request for oral argument is denied

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1 Pursuant to 28 U.S.C. Sec. 636(c), the parties consented to have Magistrate Judge Sweigert decide the case