Opinion
2:08-cv-00442-GEG-KJM.
May 1, 2008
ORDER
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
On March 25, 2008, Defendants State of California and Edmund G. Brown Jr. ("Attorney General Brown") (collectively "Defendants") filed a motion in which they seek to dismiss Plaintiff's First Amended Complaint against them with prejudice. Plaintiff filed an opposition to the motion in which he "admits . . . that as presently worded and construed, the Complaint is defective in some respects and cannot be maintained in its present form against defendants State of California and Attorney General Brown" (Opp'n at 1:12-15) and he seeks leave to file a second amended complaint "to allege additional facts . . . with respect to [Attorney General Brown] to maintain a claim for declaratory and injunctive relief against Attorney General Brown in his official capacity and to maintain a Section 1983 claim for damages against Attorney General Brown in his individual capacity." (Id. at 12:16-21.) Plaintiff also seeks leave to add the California District Attorney's Association as a new defendant to this action; to increase his prayer for damages from $2,000,000.00 to $5,000,000.00; to add 28 U.S.C. § 1343(a)(3) as an additional jurisdictional basis; and "to make additional and other amendments to the Complaint as appropriate." (Id. at 12:12-22.)
Plaintiff's request to file an amended complaint is not properly noticed and is therefore disregarded. See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1222 (11th Cir. 1999) ("Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.").
Since Plaintiff concedes that his First Amended Complaint cannot survive Defendants' motion to dismiss, the motion to dismiss is granted and Plaintiff's First Amended Complaint is dismissed against Attorney General Brown and the State of California. Defendants argue the Complaint should be dismissed with prejudice. (Mot. at 1:14-16.) "Dismissal [with prejudice] is improper unless it is clear . . . that the complaint could not be saved by any amendment." Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). Since Plaintiff concedes that an amended complaint cannot save his claims against the State of California or his pending 42 U.S.C. § 1983 claim for damages against Attorney General Brown in his official capacity, (Opp'n at 1:15-17, 2:13-15), those claims are dismissed with prejudice. Defendants, however, have not shown that Plaintiff's claim for injunctive and declaratory relief against Attorney General Brown "could not be saved by any amendment." Therefore, those claims are dismissed without prejudice. Thinket Ink Info. Res., Inc., 368 F.3d at 1061 (emphasis added).
Whether Plaintiff's proposed amendment, proffered in opposition to the motion, is sufficient to save these claims is not decided herein.
SUMMARY
For the stated reasons, Plaintiff's First Amended Complaint against the State of California is dismissed with prejudice; Plaintiff's 42 U.S.C. § 1983 claim for damages against Attorney General Brown in his official capacity is dismissed with prejudice; and Plaintiff's claims for injunctive and declaratory relief against Attorney General Brown in his official capacity are dismissed without prejudice. Plaintiff's request to file a second amended complaint is disregarded since it has not been properly noticed.
IT IS SO ORDERED.