884 F2d 1395 Luna v. State of California

884 F.2d 1395

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Richard Joseph LUNA, Plaintiff-Appellant,
STATE OF CALIFORNIA, Defendant-Appellee.

No. 86-2310.

United States Court of Appeals, Ninth Circuit.

Submitted June 26, 1989.*
Decided Aug. 31, 1989.

Before TANG, NELSON and REINHARDT, Circuit Judges.

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Richard Joseph Luna, a former California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. Sec. 1983 complaint with prejudice on the ground that he sought only to enforce state laws and regulations and thus, the suit was not cognizable in federal court.



On April 18, 1986, Richard Joseph Luna, pro se, filed this 42 U.S.C. Sec. 1983 civil rights action against the State of California, Governor Deukmejian, individually and in his official capacity, and numerous state and county agencies and officials, individually and in their official capacities1. Luna's complaint sought redress for the alleged imposition of cruel and unusual punishment on the inmates at Tehachapi, in violation of the eighth amendment. Specifically, Luna alleged that the prison facility at Tehachapi failed to comply with federal law regarding the operation of prison facilities, as well as State of California Building Codes, Health and Safety Codes, Fire Codes and the California Administrative Code. Luna's complaint sought money damages, punitive damages and injunctive relief, as well as attorney fees and costs, all in an amount to be determined by the court.


The district court allowed Luna's complaint to be filed but, prior to service, dismissed the complaint with prejudice.2 Luna timely appeals.3


We affirm the district court's dismissal of Luna's request for injunctive relief because Luna is no longer an inmate at Tehachapi and thus, an injunction would not provide an effective remedy for the wrongs alleged by Luna. See Reimers v. State of Oregon, 863 F.2d 630, 632 (9th Cir.1989). We discuss his remaining claims for damages and other relief.

Merits of Sec. 1983 Complaint


Luna contends that the conditions of confinement at Tehachapi prison pose serious health, fire, and safety risks constituting cruel and unusual punishment in violation of the eighth and fourteenth amendments. Luna further contends that the State of California, Governor Deukmejian, and numerous other agencies and officials named as defendants, are directly responsible for the violation of Luna's constitutional rights. To make out a cause of action under 42 U.S.C. Sec. 1983, a plaintiff must plead that the defendants (1) were acting under color of state law, and (2) deprived the plaintiff of rights secured by the Constitution. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054 (1987). To establish a cognizable claim under the eighth amendment, a defendant's conduct must be "incompatible with 'the evolving standards of decency that mark the progress of a maturing society.' " Estelle v. Gamble, 429 U.S. 97, 102 (1976). Rhodes v. Chapman, 452 U.S. 337, 347 (1981). "[A]n institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981) (citation omitted). Courts may not find eighth amendment violations based on the totality of conditions at a prison. Wright, 642 F.2d at 1132. If a challenged condition does not deprive inmates of one of the basic eighth amendment requirements, it is immune from eighth amendment attack. Hoptowit v. Ray, 682 F.2d 1237, 1245 (9th Cir.1982).


The eleventh amendment serves as a jurisdictional bar to suits brought in federal court against a state by its own citizens or citizens of another state, unless the state has consented to suit. Welch v. State Dept. of Highways and Public Transportation, 107 S.Ct. 2941, 2945 (1987). A suit against a state agency is considered a suit against the state and therefore is barred by the eleventh amendment. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984); Shaw v. California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir.1986). The jurisdictional bar applies regardless of the nature of the relief sought. Pennhurst State School, 465 U.S. at 100-01.

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The eleventh amendment also bars suits against state officials when the state is the real, substantial party in interest. Pennhurst State School, 465 U.S. at 101. It does not, however, bar suits seeking to impose personal liability against state officers sued in their individual capacities for alleged violations of federal constitutional or statutory rights. Schuer v. Rhodes, 416 U.S. 232, 238 (1974); Draper v. Coombs, 792 F.2d 915, 919 (9th Cir.1986).


Local government units which are not considered part of the state for eleventh amendment purposes are not wholly immune from suit under section 1983. Monnell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 54 (1978); Leer v. Murphy, 844 F.2d 628, 632 (9th Cir.1988). They can be sued for monetary, declaratory, or injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Monnell, 436 U.S. at 690. To prevail, a plaintiff must demonstrate an affirmative link between his deprivation and the adoption of a plan or policy showing the officials' authorization or approval of such misconduct. Bergquist v. County of Cochise, 806 F.2d 1364, 1369-70 (9th Cir.1986).


The district court determined that because Luna sought to enforce only state laws and regulations by way of the Federal Civil Rights Act, his claim was impermissible under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984).


California Government Code Sec. 11000 (West 1980) defines "state agency" to include "every state office, officer, department, division, bureau, board, and commission." The Department of Corrections (which includes the California Correctional Institution Facility at Tehachapi), the State Health and Welfare Agency, the State Mental Health Department, the State Fire Marshal, the State Building and Safety Department, the State Public Works Department, and the Medical Quality Assurance Board, are therefore all state agencies and because the State of California has not consented to suit, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985), the State and these agencies enjoy sovereign immunity and cannot be sued under section 1983. See Welch, 107 S.Ct. at 2945; Pennhurst State School, 465 U.S. at 100. The district court's dismissal of Luna's complaint as to these defendants is therefore affirmed.


Luna seeks injunctive and monetary relief against Governor Deukmejian and the director or head of each named agency defendant for violation of his constitutional rights. Luna is suing each officer named in the original complaint in his individual and official capacity.


Damage actions brought under section 1983 seeking to impose individual and personal liability on state officials are not barred by the eleventh amendment. See Schuer, 416 U.S. at 238. Because Luna seeks damages from all named state officials personally and has sued them in their individual capacities, his action is not barred by the eleventh amendment.


It is unclear, however, whether Luna has stated a valid section 1983 claim. While Luna's complaint is clouded by his lengthy reproduction of state laws and regulations, he has alleged facts which may constitute a violation of his constitutional rights.4 It is not absolutely clear that the deficiencies in Luna's complaint could not be cured by amendment, see Noll, 809 F.2d at 1448, and Luna's claims against the individual defendants should not therefore, have been dismissed pursuant to Pennhurst.


It is unclear whether the Kern County agencies and officials, sued in their individual and official capacities, are considered part of the State of California for eleventh amendment purposes. In addition, Luna fails to allege any custom or policy of these defendants which caused a violation of his constitutional rights. Luna's section 1983 claim cannot be based solely on the violation of local codes and regulations. However it is not entirely clear that Luna cannot amend his complaint to allege constitutional violations by these defendants and therefore, Luna's complaint against these defendants was improperly dismissed.


Luna should be allowed to file an amended complaint as to the remaining defendants and he must (1) provide a short and plain statement of his claims as required by Fed.R.Civ.P. 8, see Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir.1981), and (2) state the injuries which he has suffered as a result of the claimed constitutional violations.5

Attorney Fees and Costs


Luna requests attorney fees and costs on appeal pursuant to 42 U.S.C. Sec. 1988.


The request for attorney fees is denied. This court has held that a pro se prisoner, who is not an attorney, is not entitled to an award of attorney fees. See Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir.1987). Luna is entitled to recover costs for this appeal, pursuant to Fed.R.App.P. 39(a), but must file an itemized verified bill of costs pursuant to Fed.R.App.P. 39(a) and Ninth Circuit Rules 39-1.


The judgment of the district court is AFFIRMED in part, REVERSED in part and the cause is REMANDED.


The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In his complaint, Luna named as defendants: the State of California; Governor Deukmejian; Cal. Dept. of Corrections, Daniel McCarthy as Director; Cal. State Health and Welfare Agency, David Swoape as Director; Cal. State Mental Health Department, Dr. Michael O'Connor as Director; Cal. State Fire Marshal, John Duff as Head Fire Marshal; Cal. State Bldg. & Safety Dept., John Worsley as Director; Cal. State Public Works Dept., John Doe as Director; Cal. Medical Quality Assurance Bd., Kenneth Wagstaff as Director; Cal. Correctional Institution (C.C.I.) Minimum Yard Facility at Tehachapi, Superintendent's Office, B.J. Bunnell as Superintendent, Deputy Superintendent's Office, C. Stowell as Deputy Superintendent, Cal. Medical Dept. at C.C.I, Dr. Rhodes as Chief Medical Officer and Psychiatrist, and the Fire Dept. at C.C.I., M. Linden Boom as Fire Chief; Kern County Bd. of Supervisors, John Does I-IV; Kern County Health Dept., John Does I-V as Administrators; Kern County Fire Dept., John Does I-III as Fire Marshals; Kern County Bldg. & Safety Dept., John Does I-III; and the United States of America as the real party in interest


An order dismissing a complaint with prejudice is a final and appealable judgment under 28 U.S.C. Sec. 1291. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988)


Luna mistakenly filed his notice of appeal in this court on June 20, 1986, from the district court's order of June 2, 1986. The notice of appeal was filed in the district court on July 16, 1986 (CR 5). Because Luna's notice of appeal is deemed filed on the date noted by this court, his appeal is timely. See Fed.R.App.P. 4(a)(1)


For example, Luna claimed that overcrowding at Tehachapi caused serious health and safety risks (CR 3 at 2-3, 17-19). Luna also claimed that there were an inadequate number of prison guards employed at Tehachapi to handle the large number of inmates housed there (CR 3 at 19). This court has held that overcrowding combined with other factors such as violence or inadequate staffing does give rise to an eighth amendment violation. See Balla v. Idaho Bd. of Corrections, 869 F.2d 461, 471 (9th Cir.1989) (citing Hoptowit, 682 F.2d at 1246-49)


Although Luna names the United States as real party in interest, he fails to allege either in his complaint or his brief, how the United States would be affected by the outcome of this litigation