“Dismissal without leave to amend is proper if it is clear 26 that the complaint could not be saved by amendment.”
How later courts described this case
- “Dismissal without leave to amend is proper if it is clear 26 that the complaint could not be saved by amendment.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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JUSTIN SALMEN, Case No.: 23-cv-2054-JLS-DEB
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Plaintiff,
12 REPORT AND
v. RECOMMENDATION ON
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DEFENDANT’S MOTION TO
L. TERRONEZ,
14 DISMISS OFFICIAL CAPACITY
Defendant. CLAIM
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16 [DKT. NO. 15]
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This Report and Recommendation on Defendant L. Terronez’s Motion to Dismiss
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Official Capacity Claim (“Motion”) is submitted to United States District Judge Janis L.
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Sammartino pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3(e). For
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the reasons discussed below, the Court recommends GRANTING Terronez’s Motion.
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I. BACKGROUND
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Pro se Plaintiff Justin Salmen is incarcerated at R.J. Donovan Correctional Facility
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(“RJD”). Salmen’s complaint alleges RJD correctional officer Terronez violated his civil
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rights by “spreading false rumors to the inmates on Alpha Yard” by claiming Salmen is a
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“snitch,” “child molester,” and “homosexual.” Dkt. No. 7 at 3. Another inmate then
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“knocked [Salmen] unconscious by a strike to [his] face” causing “head trauma, laceration,
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bleeding and bruising to the upper left of [his] face/head.” Id.
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1 The Court screened Salmen’s complaint and found it stated a plausible claim against
2 Terronez under 42 U.S.C. § 1983 for deliberate indifference to a substantial risk of harm
3 from another inmate. Dkt. No. 10 at 5.1
4 Terronez’s Motion seeks dismissal of Salmen’s “official capacity” claim because it
5 is barred by the Eleventh Amendment. Dkt. No. 15.2 Salmen did not file a response.
6 II. LEGAL STANDARD
7 A complaint must contain “a short and plain statement of the claim showing that the
8 pleader is entitled to relief” to “give the defendant fair notice of what the . . . claim is and
9 the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550
10 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient
11 factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). “A claim has
13 facial plausibility when the plaintiff pleads factual content that allows the court to draw the
14 reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court
15 must “construe the pleadings in the light most favorable to the nonmoving party.” Knievel
16 v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). “A complaint may be dismissed as a matter
17 of law for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts
18 under a cognizable legal claim.” Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,
19 534 (9th Cir. 1984).
20 The Court must liberally construe a pro se complaint. Erickson v. Pardus, 551 U.S.
21 89, 94 (2007). Before dismissing a pro se civil rights complaint for failure to state a claim,
22 the plaintiff should be given a statement of the complaint’s deficiencies and an opportunity
23 to cure them unless it is clear the deficiencies cannot be cured by amendment. Eldridge v.
24 Block, 832 F.2d 1132, 1135–36 (9th Cir. 1987).
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27 1 The Court dismissed Salmen’s claim against Defendant Blanding. Dkt. No. 10 at 6.
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1 III. DISCUSSION
2 “[A] suit against a state official in his or her official capacity is not a suit against the
3 official but rather is a suit against the official’s office. As such, it is no different from a suit
4 against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
5 “[N]either a State nor its officials acting in their official capacities are ‘persons’ under
6 § 1983.” Id. The Eleventh Amendment bars suits for money damages against states and
7 their agencies under § 1983. Howlett v. Rose, 496 U.S. 356, 365 (1990). It does not,
8 however, bar a plaintiff from seeking prospective injunctive relief against the state official.
9 Will, 491 U.S. at 71 n. 10 (“Of course a state official in his or her official capacity, when
10 sued for injunctive relief, would be a person under § 1983 because ‘official-capacity
11 actions for prospective relief are not treated as actions against the State.’”) (quoting
12 Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) and citing Ex Parte Young, 209 U.S.
13 123, 159–60 (1908)).
14 Salmen sues Terronez in her official and individual capacities. Dkt. No. 7 at 2.
15 Salmen seeks $8,500,000 in compensatory damages; he does not seek injunctive relief.
16 Salmen’s official capacity claim is barred by the Eleventh Amendment, which
17 precludes federal courts from hearing suits by private citizens against states unless a state
18 has waived its immunity. Will, 491 U.S. at 66. “The State of California has not waived its
19 Eleventh Amendment immunity with respect to claims brought under § 1983 in federal
20 court, and the Supreme Court has held that § 1983 was not intended to abrogate a State’s
21 Eleventh Amendment immunity[.]” Brown v. California Dep’t of Corr., 554 F.3d 747, 752
22 (9th Cir. 2009) (quoting Dittman v. California, 191 F. 3d 1020, 1025–26 (9th Cir. 1999)).
23 Because amendment cannot cure this jurisdictional bar, the Court recommends dismissal
24 of Salmen’s official capacity claim without leave to amend. See Zixiang Li v. Kerry, 710
25 F.3d 995, 999 (9th Cir. 2013) (“Dismissal without leave to amend is proper if it is clear
26 that the complaint could not be saved by amendment.”); Cahill v. Liberty Mut. Ins. Co., 80
27 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion
28 where further amendment would be futile).
1 IV. CONCLUSION
2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue
3 Order: (1) approving and adopting this Report and Recommendation; and (2) dismissing
4 ||Salmen’s official capacity claim against Terronez with prejudice.
5 IT IS ORDERED that no later than July 16, 2024, any party to this action may file
6 || written objections with the Court and serve a copy on all parties. The document should be
7 || captioned “Objections to Report and Recommendation.”
8 IT IS FURTHER ORDERED that any reply to the objections shall be filed with
9 || the Court and served on all parties by August 13, 2024.
10 The parties are advised that failure to file objections within the specified time may
11 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan,
12 |} 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991).
13 IT IS SO ORDERED.
14 || Dated: June 18, 2024.
i Dando oa
16 Honorable Daniel E. Butcher
United States Magistrate Judge
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