Opinion
CIV. NO. S-08-1876 GEB GGH PS.
October 1, 2008
ORDER
Presently before the court are defendants State of California and California Highway Patrol's ("CHP") motion to dismiss, filed August 29, 2008, and plaintiff's motion to amend the pleadings, filed September 11, 2008. Both motions are calendared for hearing on October 9, 2008. Having reviewed the record, the court has determined that oral argument would not be of material assistance in determining the pending motions. Accordingly, the court will not entertain oral argument, and will determine the motion on the record, including the briefing in support of and in opposition to the pending motions. See E.D. Cal. L.R. 78-230(h).
Defendants State of California and the CHP seek dismissal under Fed.R.Civ.P. 12(b)(1) and (6) based on Eleventh Amendment immunity. As a state governmental entity, or "arm of the state," the CHP is not a person for purposes of 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 68, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989).
Thus, plaintiff's civil rights claims are barred against this state agency, and against the State of California, by the Eleventh Amendment to the U.S. Constitution. See, e.g., Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900 (1984) ("The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state").
Through his motion to amend the pleadings, plaintiff indicates that he does not oppose the motion to dismiss by the State of California and the CHP. Plaintiff's proposed amended complaint, filed September 11, 2008, entitled "amended pleadings," has eliminated these two defendants and will go forward as submitted against defendants Sheeran and Mangham only.
Defendants indicate that plaintiff has already served defendant Mangham and that he will respond to the amended complaint. Def.'s Non-Oppo., filed September 19, 2008, at 1 n. 1. This defendant is presumed to have waived service.
Accordingly, IT IS ORDERED that:
1. The October 9, 2008 hearing on the motion to dismiss, filed August 29, 2008, and the motion to amend the pleadings, filed September 11, 2008, is vacated.
2. The motion to dismiss by defendants State of California and the California Highway Patrol, filed August 29, 2008, is granted, and these defendants are dismissed with prejudice.
3. Plaintiff's motion to amend the complaint, filed September 11, 2008, is granted.
4. This action will proceed on the amended complaint, filed September 11, 2008.
5. Plaintiff shall effectuate service of the amended complaint on defendant Sheeran within thirty days of this order and in accordance with Fed.R.Civ.P. 4.