Opinion
No. C 08-5748 CW.
March 10, 2009
ORDER GRANTING DEFENDANT REGENTS' MOTION TO DISMISS
Defendant Board of Regents of the University of California (Regents), relying on Federal Rule of Civil Procedure 12(b)(6), moves to dismiss all claims against it in this action based on absolute immunity under the Eleventh Amendment. Plaintiff Kerry Arthur Herbert, pro se, opposes the motion. Having considered all the papers filed by the parties, the Court GRANTS Defendant Regents' motion to dismiss.
BACKGROUND
Plaintiff alleges that, on August 2, 2007, he was on temporary release from the San Francisco County jail to attend his grandmother's funeral. On August 3, 2007, while on release, Plaintiff went to San Francisco General Hospital (SFGH) for pain in his left knee. Doctors examined and treated him for a "sprang knee." Plaintiff returned to jail on August 4, 2007 and then went back to SFGH in custody on August 5, 2007. This time, doctors diagnosed Plaintiff with Methicillin-Resistant Staphylococcus Aureus and Plaintiff underwent seven surgeries to his left leg. All of the physicians at SFGH are faculty at the University of California, San Francisco (UCSF).
Plaintiff claims he received inadequate medical care on August 3, 2007 and alleges four causes of action under both state and federal laws.
Plaintiff alleges general negligence, medical malpractice, and intentional infliction of emotional distress under state law; under federal law, he alleges a violation of 42 U.S.C. § 1983.
The City and County of San Francisco (CCSF) and Regents are co-defendants in this action. CCSF removed the action to federal court. Regents did not join CCSF's removal petition, nor has it expressly waived any immunities which it now asserts under the Eleventh Amendment.
LEGAL STANDARD
A motion to dismiss for failure to state a claim will be denied unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile.Cook, Perkiss Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
DISCUSSION
I. Eleventh Amendment
Regents' assertion that it is entitled to Eleventh Amendment immunity is supported by controlling case law. The Eleventh Amendment generally renders states immune from private damages claims brought in federal court. Stanley v. Trustees of California State University, 433 F.3d 1129, 1133 (9th Cir. 2006). This "sovereign immunity" bars private citizens from suing the state in federal court under either federal- or state-law claims.Pennhurst State Sch. Hosp. v. Halderman, 465 U.S 89, 106 (1984). The bar is generally absolute and covers states as well as their "instrumentalities." Regents of the University of California v. Doe, 519 U.S. 425, 429 (1997). The University of California and Regents are considered instrumentalities of the state and therefore, absent waiver, enjoy Eleventh Amendment immunity. BV Engineering v. University of California, Los Angeles, 858 F.2d 1394, 1395 (9th Cir. 1988).
II. Waiver
In general, there are two ways that a state can waive its Eleventh Amendment immunity: voluntary consent or affirmative litigation in federal court.
A. Voluntary Consent
A state waives Eleventh Amendment immunity if it voluntarily consents to be sued in federal court. Stanley, 433 F.3d. at 1133. The test for voluntary consent is a stringent one that requires an unequivocal expression of intent, such as a statute or constitutional amendment that clearly sets forth the state's intention to subject itself to suit in federal court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (superseded by statute on other grounds). Here, Plaintiff cites no such statute, constitutional provision, or any other unequivocal expression of intent.
B. Affirmative Litigation In Federal Court (Removal)
Regents contends that co-defendant CCSF's removal of this case to federal court is not a waiver of Regents' Eleventh Amendment immunity. Under controlling case law, a state waives Eleventh Amendment immunity if it engages in certain affirmative "conduct that is incompatible with an intent to preserve that immunity."Hill v. Blind Indus. Services, 179 F.3d 754, 758 (9th Cir. 1999). Under certain circumstances, a court may find that removal of state- or federal-law claims is conduct that constitutes waiver. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004).
In Lapides, the plaintiff, a former employee of the Georgia State University, sued the University's Board of Regents in state court asserting both state- and federal-law claims. Lapides, 535 U.S. at 616. The Board of Regents removed the case to federal court, and then moved to dismiss on grounds of Eleventh Amendment immunity. Id. The Court held that the state waived its Eleventh Amendment immunity on the state-law claims when it voluntarily removed the case to federal court. Id. at 622. In Embury, the Ninth Circuit Court of Appeals extended the ruling in Lapides when it held that, upon removal, the state also waives Eleventh Amendment immunity for federal-law claims. 361 F.3d at 566.
The circumstances in the present case differ significantly from those in Lapides and Embury. Here, unlike in Lapides and Embury, Regents played no part in removing the case to federal court. On the contrary, Regents did not join co-defendant's removal petition, nor did it consent to removal.
In Riley v. Oregon, 2004 WL 2360511 (D. Or.), the plaintiff sued the co-defendants, the state of Oregon and Washington County, in state court asserting state- and federal-law claims. The county removed the case to federal court and then the state moved to dismiss on grounds of sovereign immunity. Id. The court in Riley explained that the state neither voluntarily removed the action nor engaged in significant litigation before asserting its right to immunity. Id. Furthermore, the state raised its sovereign immunity defense in the first motion it filed in federal court. Id. Lastly, the parties in Riley did not cite, nor did the court find, any controlling decisions holding that a state waives its Eleventh Amendment immunity by simply failing to seek remand of an action that it did not remove. Id. For these reasons, the court granted the state's motion to dismiss. Id.
Here, Regents has not engaged in any conduct that could be deemed incompatible with an intent to preserve its Eleventh Amendment immunity. See Hill, 179 F.3d at 758. Instead, Regents' only contact with the Court has been to assert its Eleventh Amendment immunity and state that it has not participated in the removal to federal court of this case. Therefore, under the circumstances presented here, the Court finds that Regents has not waived its Eleventh Amendment immunity.
III. Qualified Immunity
In his response brief, Plaintiff provides a number of cases purportedly standing for the proposition that Regents is entitled only to qualified immunity. In addition, Plaintiff has appended a complaint filed on March 4, 2003 by the United States Department of Justice in United States of America v. The Regents of the University of California (Exhibit 2 to Plaintiff's response brief), which he claims also supports his argument that Regents enjoys only qualified immunity. However, Regents correctly states in its reply brief that none of the cases cited nor Exhibit 2 is on point. Plaintiff alleges no facts, nor does he provide any controlling authority, to undermine the motion to dismiss.
CONCLUSION
For the foregoing reasons, Defendant Regents' Motion to Dismiss is GRANTED. The Court dismisses all claims against Defendant Regents. This dismissal is without leave to amend in this Court because amendment would be futile. However, this dismissal is without prejudice to refiling in state court.
IT IS SO ORDERED.