Ashker

Ashker v. California Department of Corrections

Good Law
112 F.3d 392·97 Daily Journal DAR 5045·1997 U.S. App. LEXIS 7647·97 Cal. Daily Op. Serv. 2846
United States Court of Appeals for the Ninth CircuitApril 18, 1997No. 96-15135California1,871 words

Opinion

Lead Opinion

Thompson, J.

Todd Lewis Ashker, an inmate at Pelican Bay State Prison in California, sued prison officials Steve Brodeur and Dr. Alex Astorga (1) under 42 U.S.C. § 1983 , alleging the officials violated the Eighth Amendment’s cruel and unusual punishment clause, and (2) under California state tort law for assault and battery and medical malpractice. 1 A jury found against Ashker on his federal section 1983 claims, but in favor of him on his supplemental state tort claims. Brodeur and Astorga appeal. They contend the Eleventh Amendment bars Ashker’s state tort claims.

We have jurisdiction under 28 U.S.C. § 1291 and we affirm. We conclude that Ashker sued Brodeur and Astorga in their individual capacities, and as a result the Eleventh Amendment does not bar Ashker’s state law claims.

FACTS

In October 1990, Ashker got into a fist fight with another inmate. To stop the fight, Correctional Officer Brodeur shot Ashker in the arm with an assault rifle. The surgeon who treated Ashker recommended that he be shipped out to a non-prison hospital for immediate treatment. Nevertheless, the prison infirmary doctors, under Dr. Astorga’s supervision, placed a cast on Ashker’s arm, but did not otherwise…

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