Hamilton v. California Department of Corrections Rehabilitation

Opinion

1 2 3 4 5 6 7 10 11 ELVIN JOHN HAMILTON, Case No.: 3:19-cv-01949-AJB-DEB Plaintiff, 12 ORDER: 13 v. (1) ADOPTING MAGISTRATE 14 CALIFORNIA DEPARTMENT OF JUDGE’S REPORT AND 15 CORRECTIONS AND RECOMMENDATION; and REHABILITATION, et al., 16 Defendants. (2) GRANTING IN PART AND 17 DENYING IN PART DEFENDANTS’ PARTIAL MOTION TO DISMISS 18

19 (Doc. Nos. 10, 23) 20 21 Before the Court is Defendants’ partial motion to dismiss pro se prisoner Plaintiff’s 22 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).1 (Doc. No. 10.) Plaintiff 23 alleges that prison staff violated his civil rights by failing to respond appropriately to his 24 medical emergency in October 2017. (Doc. No. 1.) Among other things, Plaintiff’s 25 Complaint asserts state law and official capacity claims. The Court referred the matter to 26 United States Magistrate Judge Daniel E. Butcher for a Report and Recommendation 27

28 1 “Defendants” are R. Rodriguez, E. Corleone, S. Ramirez, D. Hampton, and C. Legge. Plaintiff 1 (“R&R”). The R&R advises the Court to grant Defendants’ motion to dismiss Plaintiff’s 2 state law claims for medical malpractice, fraud, and professional and medical negligence, 3 and deny as moot Defendant’s motion to dismiss the official capacity claims. (Doc. No. 23 4 at 7, 8.)2 Plaintiff filed a timely objection to the R&R. (Doc. No. 24.) For the reasons set 5 forth below, the Court OVERRULES Plaintiff’s objection, ADOPTS the R&R in its 6 entirety, and accordingly, GRANTS IN PART AND DENIES IN PART Defendants’ 7 partial motion to dismiss. 9 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 10 judge’s duties in connection with a magistrate judge’s R&R. The district judge must “make 11 a de novo determination of those portions of the report . . . to which objection is made[,]” 12 and “may accept, reject, or modify, in whole or in part, the findings or recommendations 13 made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also United States v. 14 Remsing, 874 F.2d 614, 617 (9th Cir. 1989). “The statute [§ 636(b)(1)(C)] makes it clear 15 that the district judge must review the magistrate judge’s findings and recommendations 16 de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 17 1114, 1121 (9th Cir. 2003) (emphasis in original). Thus, in the absence of timely 18 objection(s), the court “need only satisfy itself that there is no clear error on the face of the 19 record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee’s 20 note to 1983 amendment; Reyna-Tapia, 328 F.3d at 1123. 21 Additionally pertinent, a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss 22 tests the legal sufficiency of a complaint, i.e. whether the complaint lacks either a 23 cognizable legal theory or facts sufficient to support such a theory. Navarro v. Block, 250 24 F.3d 729, 732 (9th Cir. 2001) (citations omitted). For a complaint to survive a Rule 12(b)(6) 25 motion to dismiss, it must contain “sufficient factual matter, accepted as true, to ‘state a 26 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 27

28 2 The page citations refer to the ECF-generated page numbers at the top of each filing. 1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing the 2 motion, the court “must accept as true all of the allegations contained in a complaint,” but 3 it need not accept legal conclusions. Id. “Threadbare recitals of the elements of a cause of 4 action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 5 U.S. at 555). “If the Court finds that the plaintiff did not allege sufficient facts ‘to raise a 6 right to relief above the speculative level’ and support a cognizable legal theory, it may 7 dismiss the complaint as a matter of law.” Great Minds v. Office Depot, Inc., 945 F.3d 8 1106, 1109 (9th Cir. 2019) (quoting Twombly, 550 U.S. at 555). 9 II. DISCUSSION3 10 Magistrate Judge Butcher recommended that the Court grant Defendant’s motion to 11 dismiss Plaintiff’s state law claims because Plaintiff failed to plead facts demonstrating or 12 excusing his compliance with California’s Government Claims Act—an element necessary 13 to pursue his state law claims. (Doc. No. 23 at 5–6.) See Karim-Panahi v. Los Angeles 14 Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988) (“The amended complaint fails to allege 15 compliance with California tort claim procedures. The district court properly dismissed the 16 state law tort claims.”). According to the Government Claims Act, a claimant must present 17 a tort claim against a public entity or its employees to the California Department of General 18 Services no more than six months after the cause of action accrues. Cal. Gov’t Code 19 § 911.2. A claimant may not file suit against the entity or its employees until the claimant 20 has presented a claim, and the entity has either acted on the claim or is deemed to have 21 rejected it. Cal. Gov’t Code § 945.4. Because Plaintiff did not plead compliance with the 22 Government Claims Act and the judicially noticeable California government records 23 established that he did not present his state law claims to the California Department of 24 General Services, the Magistrate Judge recommended dismissal of Plaintiff’s state law 25 claims. (Doc. No. 23 at 5–7.) The Magistrate Judge further recommended that dismissal be 26 27 3 The R&R provides a thoroug h and unobjected to recitation of the procedural and factual background of 28 this case. (Doc. No. 23 at 2–3.) The Court therefore finds it unnecessary to repeat them here. Instead, the 1 without leave to amend, finding that “[b]ecause Plaintiff’s claims accrued in October 2017, 2 the statutory time frame for presenting a claim (six months after claim accrual) has lapsed,” 3 and the statutory exception that would permit him to file a late claim did not apply to him. 4 (Id. at 7.) 5 Although unclear, it appears that Plaintiff objects to the Magistrate Judge’s finding 6 that his state law claims must be dismissed without leave to amend because he is unable to 7 avail himself of the statutory exception for compliance with California’s Government 8 Claims Act. (Doc. No. 24 at 1.) In his objection, Plaintiff asserts that due to “C.D.C.R. state 9 prison policies of lockdowns,” he could not obtain a tort claim form from the prison 10 libraries. (Id.) The Federal Rules of Civil Procedure require that a party “file specific 11 written objections to the proposed findings and recommendations” and that “[t]he district 12 judge must determine de novo any part of the magistrate judge’s disposition that has been 13 properly objected to.” Fed. R. Civ. P. 72(b) (emphasis added). Even in granting due 14 leniency given Petitioner’s pro se status, the objections “must be specific and clearly aimed 15 at particular findings in the magistrate’s proposal, such that no party be allowed a second 16 bite at the apple by simply relitigating a prior argument.” DiPilato v. 7-Eleven, Inc., 662 F. 17 Supp. 2d 333, 340 (S.D.N.Y. 2009) (citation and internal quotations omitted). Plaintiff’s 18 reference to “several lockdowns,” is not specific enough for the Court to evaluate the merits 19 of his objection. The Court therefore finds his objection unavailing. 20 To the extent that Plaintiff is referring to prison lockdowns related to preventing the 21 spread of COVID-19, such lockdowns took place in 2020—well after Plaintiff’s claims 22 accrued in 2017. Thus, the lockdowns could not have prevented him from filing within six 23 months of October 2017, when his claims accrued. Notably, on November 9, 2017, Plaintiff 24 was able to file a grievance form about the October 2017 incidents with the prison. (Doc. 25 No. 1 at 16.) This indicates to the Court that Plaintiff could have, but failed to, file a tort 26 claim against the prison staff to the California Department of General Services. As such, 27 even when construed liberally, Plaintiff’s vague assertion about lockdowns is insufficient. 28 Accordingly, the Court will overrule Plaintiff’s objection and adopt the Magistrate Judge’s 1 || findings on his state law claims. There being no other objections to the Magistrate Judge’s 2 ||R&R and having reviewed it in its entirety, the Court finds it well-reasoned and contains 3 clear error. Accordingly, the Court will adopt the R&R in its entirety. 4 Hit. CONCLUSION 5 Based on the foregoing, the Court OVERRULES Plaintiff's Objections (Doc. No. 6 ||24), ADOPTS the R&R in its entirety (Doc. No. 23), and GRANTS IN PART AND 7 || DENIES IN PART Defendants’ partial motion to dismiss (Doc. No. 10). 9 10 1 |[Pated: June 29, 2021 Gg tte i

Hon. Anthony J attaglia United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28