Hamilton v. California Department of Corrections Rehabilitation

• Court: District Court, S.D. California
• Decided: February 2, 2021
• Docket: 3:19-cv-01949
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELVIN JOHN HAMILTON, Case No.: 19-cv-1949-AJB (DEB)

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON DEFENDANTS’ PARTIAL MOTION 14 CALIFORNIA DEPARTMENT OF TO DISMISS CORRECTIONS AND 15 REHABILITATION, et al., [DKT. NO. 10] 16 Defendants. 17

18 This Report and Recommendation is submitted to United States District Judge 19 Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(e) and 20 72.3(e). 21 Plaintiff Elvin John Hamilton is an inmate at R.J. Donovan Correctional Facility 22 (“RJD”). On October 7, 2019, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 23 claiming that RJD staff violated his civil rights by failing to respond appropriately to his 24 medical emergency. Dkt. No. 1. 25 26 27 28 1 On October 9, 2020, Defendants R. Rodriguez, E. Corleone, S. Ramirez, 2 D. Hampton, and C. Legge filed a Partial Motion to Dismiss. Dkt. No. 10.2 On 3 October 23, 2020, Plaintiff filed an Opposition. Dkt. No. 15. On November 24, 2020, 4 Defendants filed a Reply. Dkt. No. 16. For the following reasons, the Court recommends 5 GRANTING in part and DENYING in part Defendants’ Motion. 6 I. PLAINTIFF’S FACTUAL ALLEGATIONS 7 The following facts are taken from Plaintiff’s Complaint and are limited to the 8 claims relating to the pending Motion.3 9 On October 26, 2017, Plaintiff told Defendant Shepard, an RJD correctional officer, 10 that he was experiencing chest pains. Dkt. No. 1 at 5. Shepard referred Plaintiff to 11 Defendant Ramirez, a psychologist technician, who was not available to help. Id. Three 12 hours later, Plaintiff went to the prison medical area where Defendant Corleone refused 13 Plaintiff’s requests for pain medications, but instead gave Plaintiff a single pain pill and an 14 inhaler. Id. 15 On October 27, 2017, while on “C” yard, Plaintiff again experienced chest pains and 16 shortness of breath. Id. Plaintiff reported his chest pains to Defendant Ramirez and 17 requested that Ramirez call medical. Id. Ramirez refused. Id. at 5–6. This prompted 18 Plaintiff to “go man down” in an effort to get medical aid. Id. at 6. Defendants Legge and 19 Rodriguez witnessed Plaintiff’s “man down,” but did not summon assistance, even after 20

21 1 Plaintiff erroneously named E. Corleone as Erica Gayle in the Complaint. See 22 Dkt. No. 10 at 2. 23 2 The Court presumes Defendant S. Shepard was inadvertently excluded from being 24 named as a moving party in Defendants’ Motion. This Report and Recommendation, 25 therefore, also applies to Plaintiff’s claims against Defendant Shepard.

26 3 For purposes of this Motion, the Court assumes the truth of the allegations in 27 Plaintiff’s Complaint. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (“On a motion to dismiss for failure to state a claim, the court must presume all factual 28 1 Plaintiff informed them that he was in medical distress. Id. Legge and Rodriguez instead 2 ordered Plaintiff to get off the floor. Id. Plaintiff stood up and informed Defendant 3 Hampton about his chest pains and that he intended to wait for medical attention in the day 4 room. Id. at 7. Hampton placed Plaintiff in handcuffs and escorted him to the “C” Section 5 shower where he threatened to throw Plaintiff “into the hole on a fake lock up order.” Id. 6 at 7. 7 Approximately one hour later, Rodriguez escorted Plaintiff to medical where a 8 doctor diagnosed Plaintiff with bronchitis, prescribed cough medicine, and stated that 9 Plaintiff “could’ve died” if he had not received medical attention. Id. at 8. 10 On October 29, 2019, Plaintiff was prescribed pain medication, but only after he laid 11 down in the “chow hall,” which prompted an officer to take him to medical. Dkt. No. 1 at 12 9. 13 Plaintiff alleges that Defendants’ delays in responding to his complaints violated his 14 right to medical care, constituted cruel and unusual punishment, and were fraudulent and 15 negligent. Id. at 5. 16 II. PROCEDURAL BACKGROUND 17 On October 7, 2019, Plaintiff filed the instant Complaint. Dkt. No. 1. On 18 January 16, 2020, the Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. 19 §§ 1915(e)(2) and 1915A(b) and dismissed: (1) Plaintiff’s claims against Paramo, Kernan, 20 CDCR, RJD, Medical of Richard J. Donovan Prison, Jumba, and all Defendants in their 21 official capacity; (2) Count II of the Complaint alleging Equal Protection Clause violations; 22 and (3) Plaintiff’s request for injunctive relief. Dkt. No. 3. On October 9, 2020, Defendants 23 filed this Partial Motion to Dismiss Plaintiff’s state law and official capacity claims. 24 Dkt. No. 10. 25 III. LEGAL STANDARD 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief” to “give the defendant fair notice of what the . . . claim is and 28 the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 1 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient 2 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). “A claim has 4 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court 6 must “construe the pleadings in the light most favorable to the nonmoving party.” Knievel 7 v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). “A complaint may be dismissed as a matter 8 of law for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts 9 under a cognizable legal claim.” Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 10 534 (9th Cir. 1984). 11 The Court must liberally construe a pro se complaint. Erickson v. Pardus, 551 U.S. 12 89, 94 (2007). Before dismissing a pro se civil rights complaint for failure to state a claim, 13 the plaintiff should be given a statement of the complaint’s deficiencies and an opportunity 14 to cure them unless it is clear the deficiencies cannot be cured by amendment. Eldridge v. 15 Block, 832 F.2d 1132, 1135–36 (9th Cir. 1987). 16 IV. DISCUSSION 17 Defendants move to dismiss Plaintiff’s state law and official capacity claims. They 18 claim Plaintiff failed to exhaust his state tort claim procedures because he did not submit a 19 claim under the California Government Claims Act within six months of the incidents 20 alleged in the Complaint. Dkt. No. 10 at 5. In his Opposition, Plaintiff argues that he 21 exhausted his administrative remedies with CDCR, but there “is no way that a [CDCR] 22 inmate may file a state claim no more than six months from the date of incident.” 23 Dkt. No. 15 at 2. 24 For the reasons discussed below, the Court agrees that Plaintiff failed to exhaust his 25 state law claims, and, therefore, recommends their dismissal. Because Plaintiff’s claims 26 against Defendants in their official capacity were previously dismissed, Dkt. No. 3 at 8, 13, 27 the Court recommends denying Defendants’ second ground for dismissal as moot. 28 1 A. State Law Claims 2 Plaintiff’s Complaint alleges three California state common law claims against 3 Defendants: (1) medical malpractice, (2) fraud, and (3) professional and medical 4 negligence. Dkt. No. 1 at 5. Defendants argue these state law claims are barred for failure 5 to comply with California’s Government Claims Act (Cal. Gov. Code § 911.2) because 6 Plaintiff did not file a claim with the Department of General Services within six months of 7 accrual of the claims at issue. Dkt. No. 10 at 5. 8 i. Judicial Notice 9 In support of their Motion, Defendants request the Court take judicial notice of the 10 following records from the California Department of General Services Government Claims 11 Program (“GCP”): (1) a declaration from a legal analyst attesting that a search of the GPC’s 12 Standardized Insurance Management System computer database reflects that Plaintiff did 13 not file a claim regarding the incidents alleged in his Complaint; and (2) a certification 14 from a GPC staff services manager confirming the Attorney General’s Office has read- 15 only access to the GPC’s computer database. Dkt. No. 10-1 at 4–5. 16 A court may take judicial notice of facts “not subject to reasonable dispute.” Fed. R. 17 Evid. 201(b). Whether a tort claim has been presented to a public entity is subject to judicial 18 notice. See Duke Energy Trading and Marketing, L.L.C. v. Davis, 267 F.3d 1042, 1048 n.3 19 (9th Cir. 2001) (taking judicial notice of statement of claim filed with the California Victim 20 Compensation and Government Claims Board); see also Elliott v. Amador Cnty. Unified 21 Sch. Dist., No. 12-cv-117-MCE-DAD, 2012 WL 5013288, at *7 (E.D. Cal. Oct. 17, 2012) 22 (collecting cases). Accordingly, the Court recommends GRANTING Defendants’ Request 23 for Judicial Notice (Dkt. No. 10-1). 24 ii. California’s Government Claims Act 25 A claimant must present a tort claim against a public entity or its employees to the 26 California Department of General Services no more than six months after the cause of 27 action accrues. Cal. Gov’t Code § 911.2. A claimant may not file suit against the entity or 28 its employees until the claimant has presented a claim and the entity has either acted on the 1 claim or is deemed to have rejected it. Cal. Gov’t Code § 945.4; State of California v. 2 Superior Court (Bodde), 90 P.3d 116, 119 (Cal. 2004) (“Under [the Government Claims 3 Act], failure to timely present a claim for money or damages to a public entity bars a 4 plaintiff from filing a lawsuit against that entity.”). Compliance with the claims 5 presentation requirement is an element of the cause of action that a plaintiff must plead. 6 Bodde, 90 P.3d at 122. Failure to allege facts demonstrating or excusing compliance 7 subjects a complaint to dismissal for failure to state a claim. Id. This pleading requirement 8 applies in federal court. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 9 (9th Cir. 1988) (“The amended complaint fails to allege compliance with California tort 10 claim procedures. The district court properly dismissed the state law tort claims.”). 11 Plaintiff’s Complaint does not allege that he submitted a timely claim pursuant to 12 the Government Claims Act. Despite this, Plaintiff argues that he timely exhausted his 13 administrative remedies through the inmate appeals process. Dkt. No. 15 at 2. Plaintiff 14 further argues that by following the inmate appeals process, there is not enough time to 15 also file a state claim “no more th[a]n six months from the date of the incident.” Id. 16 Plaintiff appears to be combining two separate and distinct exhaustion requirements. 17 The Prison Litigation Reform Act (“PLRA”) requires Plaintiff to use the inmate appeals 18 process provided by the prison and exhaust those administrative remedies prior to filing an 19 action under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a) (“No action shall be brought with 20 respect to prison conditions under section 1983 of this title, or any other Federal law, by a 21 prisoner confined in any jail, prison, or other correctional facility until such administrative 22 remedies as are available are exhausted.”). Defendants do not dispute that Plaintiff has met 23 this requirement. Dkt. No. 16 at 1–2. However, the PLRA does not affect Plaintiff’s state 24 law claims; these claims are subject to a separate exhaustion requirement under the 25 Government Claims Act. Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999) (“[W]e hold 26 that California Tort Claims Act procedures — including the requirement that a state tort 27 claim first be presented to the California State Board of Control — are not ‘available 28 administrative remedies’ that a prisoner must exhaust for purposes of section 1997e(a).”) 1 (overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001)); see also Martinez 2 v. Tilton, No. 10-cv-01501-SKO-PC, 2013 WL 5670869, *3 (E.D. Cal. Oct. 16, 2013) 3 (“[T]he prison’s inmate appeals process and the Government Claims Act process are 4 separate processes and there is no support for a finding that the allegedly improper 5 cancellation of Plaintiff’s inmate appeal had any effect whatsoever on his ability to timely 6 present his Government Claims Act claim. . . .”); Bagdasaryan v. City of Los Angeles, No. 7 15-cv-01008-JLS-KES, 2019 WL 7985185, at *7 (C.D. Cal. Nov. 26, 2019) (“California 8 courts ‘exclude the time during which a litigant reasonably pursues his administrative 9 remedy from the six-month time limit for filing a court action after the Board of Control 10 rejects a government tort claim’” however, “this tolling applies after a person presents a 11 claim under the [Government Claims Act]; it does not toll the time for filing a claim in the 12 first instance.”) (emphasis in original) (internal citation omitted). Because Plaintiff has not 13 pleaded compliance with the Government Claims Act and the judicially noticeable facts 14 establish that he did not present his state law claims, the Court recommends dismissing 15 Plaintiff’s state law claims. 16 iii. Leave to Amend 17 Because Plaintiff’s claims accrued in October 2017, the statutory time frame for 18 presenting a claim (six months after claim accrual) has lapsed. Cal. Gov. Code § 911.2. 19 The statutory exception that would enable Plaintiff to present a late claim requires Plaintiff 20 to plead and prove “that he did not know or have reason to know” within the statutory time 21 frame that “the injury he alleges was caused by the act or omission of a public entity or 22 employee.” Cal. Gov. Code § 950.4. Plaintiff’s Complaint, however, demonstrates that he 23 knew about the relevant facts on, if not before, November 10, 2017, when he submitted his 24 initial grievance with RJD. See Dkt. No. 1 at 16. That grievance for “staff misconduct on 25 a ‘man down,’” alleged that Plaintiff informed Defendants: “I’m in pain, I’m having chest 26 pains, trouble breathing, and I have heart problems,” and “[o]n 10-27-17[,] I went man 27 down in C-Section of my building . . . c.o. C. Legge and c.o. R. Rodriguez didn’t activate 28 the CDCR alarm button,” and “Sgt. Mr. Hampton said ‘he was putting me AO-Seg’ on 1 false security concerns. . . .” Id. at 16, 18. In that same grievance, Plaintiff further alleges 2 that he was later diagnosed with bronchitis and that Defendants’ failure to follow “CDCR 3 policy, procedures, [and] protocol . . . put [his] life span at risk.” Id. at 18. On or about 4 November 27, 2017, Plaintiff also filed a “Health Care Grievance” with the California 5 Correctional Health Care Services complaining about the primary care provider’s 6 treatment. See id. at 40 (“Health Care Grievance, received on November 27, 2017”). These 7 allegations establish that Plaintiff knew that Defendants caused the injuries that give rise 8 to the state law claims before the claim presentation deadline expired. The Court, therefore, 9 recommends that Plaintiff’s medical malpractice, fraud, and professional and medical 10 negligence claims for relief be DISMISSED without leave to amend. See Telesaurus VPC, 11 LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (A district court may deny a plaintiff 12 leave to amend “if it determines that the allegation of other facts consistent with the 13 challenged pleading could not possibly cure the deficiency.”). 14 B. Claims Against Defendants in Their Official Capacity 15 Defendants’ argument that “they are immune from liability in their official capacity” 16 is moot because the Court already dismissed these allegations. Dkt. No. 3 at 8, 13. 17 Accordingly, the Court recommends DENYING Defendants’ Motion to Dismiss the 18 official capacity claims as moot. 19 V. CONCLUSION 20 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue 21 an Order: (1) approving and adopting this Report and Recommendation; and (2) dismissing 22 without leave to amend Plaintiff’s claims for medical malpractice, medical fraud, and 23 professional and medical negligence. 24 IT IS ORDERED that no later than February 23, 2021, any party to this action 25 may file written objections with the Court and serve a copy on all parties. The document 26 should be captioned “Objections to Report and Recommendation.” 27 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 28 the Court and served on all parties by March 9, 2021. 1 The parties are advised that failure to file objections within the specified time may 2 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 3 |] 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 1991). 4 IT IS SO ORDERED. 5 Dated: February 2, 2021 PTT 4 Honorable Daniel E. Butcher United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28