Ellawendy Fatah v. Steve Bernal ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLAWENDY ABDEL FATAH, No. 19-17395
Plaintiff-Appellant, D.C. No. 3:19-cv-05475-WHA
v.
MEMORANDUM*
STEVE BERNAL; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted October 26, 2020**
Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.
Ellawendy Abdel Fatah appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging that defendants interfered with the
practice of his religion while he was incarcerated at Monterey County Jail. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(dismissal under 28 U.S.C. § 1915A). We may affirm on any basis supported by
the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm
in part, vacate in part, and remand.
Because Fatah requested damages in addition to injunctive relief, the district
court should not have dismissed his entire action as moot. However, dismissal of
Fatah’s action was nevertheless proper as barred by the Eleventh Amendment. See
Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (state officials sued in their
official capacities for damages are entitled to Eleventh Amendment immunity);
Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982) (“Eleventh
Amendment immunity extends to actions against state officers sued in their official
capacities because such actions are, in essence, actions against the governmental
entity[.]”).
Because the district court dismissed the entire action as moot, it did not
consider whether Fatah was entitled to leave to amend. While we conclude that
amendment would be futile as to Fatah’s requests for injunctive relief and his
requests for damages against defendants in their official capacities, it is not entirely
clear that amendment would be futile as to claims for damages against defendants
in their individual or personal capacities. See Cato v. United States, 70 F.3d 1103,
2 19-17395
1106 (9th Cir. 1995) (“A pro se litigant must be given leave to amend his or her
complaint, and some notice of its deficiencies, unless it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment.”). We therefore
vacate the judgment and remand to the district court to provide Fatah with leave to
amend and instructions on amendment, but only as to claims against defendants in
their individual or personal capacities.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions and requests are denied.
AFFIRMED in part, VACATED in part, and REMANDED.
3 19-17395