# Ashmus v. Calderon

> Court of Appeals for the Ninth Circuit · August 18, 1997 · 123 F.3d 1199

URL: https://www.frixlaw.com/law-library/cases/6955916

## Case

- **Full name:** Troy A. ASHMUS, of himself as an individual and on behalf of himself and all others similarly situated v. Arthur CALDERON, Warden Teena Farmon, Warden of the Central California Women's Facility James H. Gomez, Director, California Department of Corrections Daniel E. Lungren, Attorney General
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** August 18, 1997
- **Citations:** 123 F.3d 1199; 97 Daily Journal DAR 10687; 97 Cal. Daily Op. Serv. 6530; 1997 U.S. App. LEXIS 21732; 1997 WL 469527
- **Precedential status:** Published
- **Opinion:** Dissent by Beezer
- **Judges:** Beezer, Gillmor, Thompson
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Calderon v. Ashmus, 523 U.S. 740 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6955916

## How later opinions describe it (automated extraction)

- concluding that “a state’s competency standards need not require previous experience in habeas corpus litigation” because “[m]any lawyers who could competently represent a condemned prisoner would not qualify under such a standard”

## Opinion text

BEEZER, Circuit Judge,
dissenting:
Among the defenses pleaded in the district court by Calderon, as warden, and his co-defendants is the “seventh defense,” which asserts: “Defendants allege that the relief sought in the complaint is barred by the Eleventh Amendment to the United States Constitution.”
No court is free to address the merits of a cause until it is satisfied that it has jurisdiction over the subject matter of the case and the parties to the litigation. The district court here claimed jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the Constitution, laws or treaties of the United States) and under 28 U.S.C. § 1343 (a)(3) (action under 42 U.S.C. § 1983 ). The district court did not claim to exercise habeas corpus jurisdiction under 28 U.S.C. § 2254 .
In lengthy findings of fact, conclusions of law and order filed June 14,1996, the district court does not address the defendants’ seventh defense. I will.
The complaint alleges that this action is brought against defendants in their official capacity. Be the action against a prison warden, the Director of the Department of Corrections or the Attorney General of California, these officers act in their official capacity and in furtherance of sovereign powers of the State of California. Each official claims Eleventh Amendment immunity.
The court’s opinion filed today (Discussion, part C) tells us that the immunity defense will not lie because the prisoners’ class action claims fall within the Ex Parte Young exception. The exception, we are told, arises from the fact that the prisoners have identified “a continuing or impending violation of federal law.”
The Fourth Circuit in Booth v. State of Maryland, 112 F.3d 139 (4th Cir.1997), considered a prisoner complaint which made claims that the prisoners mimic here. I am persuaded by the opinion in Booth that the *1210 prisoners here have wholly failed to defeat California’s immunity defense. After engaging in an exacting analysis, the Booth court concluded:
In sum, this action fails to satisfy the requirements of Ex Parte Young. Neither the invocation of a chapter 154 defense, nor the announced intention to assert such a defense, nor the failure to comply with chapter 154 constitutes a continuing violation of federal law. Under these circumstances, we find no authorization in Ex Parte Young for abrogating Maryland’s Eleventh Amendment immunity. Since in-junctive relief is not available in this case under Ex Parte Young, declaratory relief is not available either. Green, 474 U.S. at 74, 106 S.Ct. at 429. Id. at 144.
I would direct the district court to quash its preliminary injunction, vacate its order of June 14,1996 and dismiss the plaintiffs’ complaint. This would grant the state officials the Eleventh Amendment immunity to which they are entitled. I would avoid the inter-circuit conflict of decision in a matter of national concern that is created by the rejection of the Booth holding in our court’s opinion filed today.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6955916. Public record. Not legal advice.