2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARDIK KEVIN MEKHTARIAN, Case No. 1:20-cv-00696-NODJ-CDB (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO GRANT DEFENDANT ORTEGA’S MOTION TO DISMISS 14 C. ORTEGA, et al., (Doc. 33) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 18 Plaintiff Mardik Kevin Mekhtarian is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action brought under 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s claims against Defendant Brosious and Does 1-101 for deliberate indifference in 21 violation of the Eighth Amendment and against Defendant Ortega for state law claims of gross 22 negligence and medical malpractice. (Doc. 24). 23 Presently before the Court is Defendant Ortega’s motion to dismiss all claims as to him 24 for Plaintiff’s failure to comply with the California Government Claims Act, filed August 11, 25
26 1 On June 1, 2023, the Court granted Plaintiff 90 days within which to discover the true names of the Doe Defendants and to move to substitute them as named parties. (Doc. 25). 27 Plaintiff has not moved to substitute the Doe Defendants. However, as discovery has not yet commenced, the undersigned will not recommend that the Doe Defendants be dismissed and will 28 permit Plaintiff additional time to discovery their identity. 1 2023. (Doc. 33). Plaintiff failed to timely oppose the motion and the Court ordered Plaintiff to 2 show cause why his failure to respond should not be construed as a non-opposition. (Doc. 35). 3 After requesting a 90-day extension of time, Plaintiff responded to the show cause order and 4 opposed the motion to dismiss. (Docs. 36-38). Thereafter, on December 14, 2023, Defendant 5 filed a reply. (Doc. 41). 6 I. PLAINTIFF’S ALLEGATIONS2 7 At all times relevant to this action, Plaintiff was a state inmate housed at California 8 Correctional Institution (“CCI”) in Tehachapi, California. On July 31, 2018, while performing a 9 root canal on Plaintiff, Dr. C. Ortega (Defendant) dropped a sharp tool bit down Plaintiff’s 10 throat. The bit was a metal, needle-like object 2.5 centimeters long, with a 1-centimeter plastic 11 handle. The object severely damaged Plaintiff’s esophagus and gastric wall of his stomach. 12 Plaintiff was transported to San Joaquin Hospital, where Dr. Rejeev R. Manu performed 13 emergency surgery to remove the dental tool. Plaintiff states that it took multiple attempts and 14 damaged his esophagus. For two or three days after the procedure, Plaintiff felt a constant pain 15 in his stomach, for which hospital staff gave him crushed ice. 16 From the time of his return to the prison on August 2, 2018, Plaintiff did not receive his 17 doctor-ordered Boost drinks, the only thing Plaintiff could consume. The nurse who first screened 18 Plaintiff, Stephanie Brosius (Defendant), told Plaintiff his pain would subside and refused to give him 19 medication. According to Plaintiff, Nurse Brosius went to ask the doctor on duty, who came and told 20 Plaintiff he would not get pain meds and “[he] should be a man and stop crying.” (Doc. 16 at 4.) 21 Plaintiff submitted several California Department of Corrections and Rehabilitation 22 (“CDCR”) 7362 Health Care Services Request forms and was seen on several dates by Does 1– 23 10, who were doctors, registered nurses, and nurse practitioners. Each told Plaintiff that they 24 knew he was going to sue CDCR or the dentist, so “[he] was going to suffer and would not be 25 given any pain meds other than ibuprofen or Tylenol, and if that doesn’t work, too bad.” (Doc. 26
27 2 As set forth below, in considering Defendant’s motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., the Court accepts Plaintiff’s allegations in the operative complaint as true in the light most 28 favorable to him. 1 16 at 4). Plaintiff alleges that the staff refused to give him their names, but he intends to obtain 2 their names through discovery. 3 II. DISCUSSION 4 A. Governing Legal Standard 5 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro 6 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is 7 generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint, 8 and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 9 519 F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks & citations omitted). Dismissal 10 is proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged 11 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 12 1988) (citation omitted). 13 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 14 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 15 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court 16 “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light 17 most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 18 (9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners 19 liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 20 2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s 21 factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). A 22 court’s liberal interpretation of a pro se complaint, however, may not supply essential elements of 23 the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th 24 Cir. 1982); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 25 B. California Government Claims Act 26 Both state and federal law require a prisoner to exhaust available administrative remedies 27 before seeking judicial relief. Wright v. California, 122 Cal. App.4th 659, 664 (2004). Under 28 California law, exhaustion of remedies is a jurisdictional requirement: “a court cannot hear a case 1 before a litigant exhausts administrative remedies.” Id. at 664-65 (citations omitted). 2 California’s Government Claims Act (“GCA”) requires a claim against the State or its 3 employees “relating to a cause of action for death or for injury to person” to be presented to the 4 Department of General Services’ Government Claims Program no more than six months after the 5 cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–50.2. Presentation of a 6 written claim, and action on or rejection of the claim, are conditions precedent to filing suit. State v. 7 Superior Ct. of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1244-45 (2004).
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARDIK KEVIN MEKHTARIAN, Case No. 1:20-cv-00696-NODJ-CDB (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO GRANT DEFENDANT ORTEGA’S MOTION TO DISMISS 14 C. ORTEGA, et al., (Doc. 33) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 18 Plaintiff Mardik Kevin Mekhtarian is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action brought under 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s claims against Defendant Brosious and Does 1-101 for deliberate indifference in 21 violation of the Eighth Amendment and against Defendant Ortega for state law claims of gross 22 negligence and medical malpractice. (Doc. 24). 23 Presently before the Court is Defendant Ortega’s motion to dismiss all claims as to him 24 for Plaintiff’s failure to comply with the California Government Claims Act, filed August 11, 25
26 1 On June 1, 2023, the Court granted Plaintiff 90 days within which to discover the true names of the Doe Defendants and to move to substitute them as named parties. (Doc. 25). 27 Plaintiff has not moved to substitute the Doe Defendants. However, as discovery has not yet commenced, the undersigned will not recommend that the Doe Defendants be dismissed and will 28 permit Plaintiff additional time to discovery their identity. 1 2023. (Doc. 33). Plaintiff failed to timely oppose the motion and the Court ordered Plaintiff to 2 show cause why his failure to respond should not be construed as a non-opposition. (Doc. 35). 3 After requesting a 90-day extension of time, Plaintiff responded to the show cause order and 4 opposed the motion to dismiss. (Docs. 36-38). Thereafter, on December 14, 2023, Defendant 5 filed a reply. (Doc. 41). 6 I. PLAINTIFF’S ALLEGATIONS2 7 At all times relevant to this action, Plaintiff was a state inmate housed at California 8 Correctional Institution (“CCI”) in Tehachapi, California. On July 31, 2018, while performing a 9 root canal on Plaintiff, Dr. C. Ortega (Defendant) dropped a sharp tool bit down Plaintiff’s 10 throat. The bit was a metal, needle-like object 2.5 centimeters long, with a 1-centimeter plastic 11 handle. The object severely damaged Plaintiff’s esophagus and gastric wall of his stomach. 12 Plaintiff was transported to San Joaquin Hospital, where Dr. Rejeev R. Manu performed 13 emergency surgery to remove the dental tool. Plaintiff states that it took multiple attempts and 14 damaged his esophagus. For two or three days after the procedure, Plaintiff felt a constant pain 15 in his stomach, for which hospital staff gave him crushed ice. 16 From the time of his return to the prison on August 2, 2018, Plaintiff did not receive his 17 doctor-ordered Boost drinks, the only thing Plaintiff could consume. The nurse who first screened 18 Plaintiff, Stephanie Brosius (Defendant), told Plaintiff his pain would subside and refused to give him 19 medication. According to Plaintiff, Nurse Brosius went to ask the doctor on duty, who came and told 20 Plaintiff he would not get pain meds and “[he] should be a man and stop crying.” (Doc. 16 at 4.) 21 Plaintiff submitted several California Department of Corrections and Rehabilitation 22 (“CDCR”) 7362 Health Care Services Request forms and was seen on several dates by Does 1– 23 10, who were doctors, registered nurses, and nurse practitioners. Each told Plaintiff that they 24 knew he was going to sue CDCR or the dentist, so “[he] was going to suffer and would not be 25 given any pain meds other than ibuprofen or Tylenol, and if that doesn’t work, too bad.” (Doc. 26
27 2 As set forth below, in considering Defendant’s motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., the Court accepts Plaintiff’s allegations in the operative complaint as true in the light most 28 favorable to him. 1 16 at 4). Plaintiff alleges that the staff refused to give him their names, but he intends to obtain 2 their names through discovery. 3 II. DISCUSSION 4 A. Governing Legal Standard 5 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro 6 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is 7 generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint, 8 and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 9 519 F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks & citations omitted). Dismissal 10 is proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged 11 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 12 1988) (citation omitted). 13 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 14 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 15 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court 16 “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light 17 most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 18 (9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners 19 liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 20 2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s 21 factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). A 22 court’s liberal interpretation of a pro se complaint, however, may not supply essential elements of 23 the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th 24 Cir. 1982); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 25 B. California Government Claims Act 26 Both state and federal law require a prisoner to exhaust available administrative remedies 27 before seeking judicial relief. Wright v. California, 122 Cal. App.4th 659, 664 (2004). Under 28 California law, exhaustion of remedies is a jurisdictional requirement: “a court cannot hear a case 1 before a litigant exhausts administrative remedies.” Id. at 664-65 (citations omitted). 2 California’s Government Claims Act (“GCA”) requires a claim against the State or its 3 employees “relating to a cause of action for death or for injury to person” to be presented to the 4 Department of General Services’ Government Claims Program no more than six months after the 5 cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–50.2. Presentation of a 6 written claim, and action on or rejection of the claim, are conditions precedent to filing suit. State v. 7 Superior Ct. of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1244-45 (2004). Pendant state law claims 8 included in a federal civil rights action are also subject to this claim presentation requirement. Karim– 9 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988) (“The amended complaint fails 10 to allege compliance with California tort claim procedures. The district court properly dismissed the 11 state law tort claims.”); Butler v. Los Angeles Cnty., 617 F. Supp.2d 994, 1001 (C.D. Cal. 2008) 12 (“Although a plaintiff may include supplemental state law claims in a civil rights action brought in 13 federal court pursuant to 42 U.S.C. § 1983, the state law claims are subject to dismissal for failure to 14 allege compliance with the claim-filing requirement of the [GCA].”). A civil complaint must be 15 dismissed if it does not allege compliance with the claim presentation requirements or allege facts 16 showing the applicability of a recognized exception or excuse for noncompliance. Bodde, 32 Cal.4th 17 at 1245. 18 Here, Plaintiff fails to state any allegations which show he properly complied with the GCA 19 upon which to be allowed to pursue claims under California law. Nor does the operative complaint 20 allege any facts suggesting any reason why Plaintiff should be excused from the claim presentation 21 requirement. In his opposition (Doc. 38), Plaintiff merely argues that “Mrs. C. Ortegas motion to 22 dismiss should be denied” because there purportedly is an “admission of guilt” and because 23 Defendant “should be held accountable.” Id. at 1. However, Plaintiff does not challenge 24 Defendant’s argument that Plaintiff’s amended complaint fails to allege compliance with the 25 GCA. 26 Under Rule 15 of the Federal Rules of Civil Procedure, a plaintiff may amend his pleading 27 with the court’s leave. Fed. R. Civ. P. 15(a)(2). The Rule provides that “[t]he court should freely 28 give leave when justice so requires.” Id. The United States Supreme Court has stated that “this 1 mandate is to be heeded.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting Foman v. 2 Davis, 371 U.S. 178, 182 (1962)). The intent of the rule is to “facilitate decision on the merits, 3 rather than on the pleadings or technicalities.” Chudacoff v. Univ. Med. Center of S. Nev., 649 4 F.3d 1143, 1152 (9th Cir. 2011). Consequently, the “policy of favoring amendments to pleadings 5 should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 6 1981). 7 A pro se litigant must be given leave to amend his complaint unless it is “absolutely clear 8 that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 9 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th 10 Cir. 1988) (per curiam) (internal quotation marks omitted)). However, the district court may 11 exercise its discretion to deny amendment for reasons “such as undue delay, bad faith or dilatory 12 motive on the part of the movant, repeated failure to cure deficiencies by amendments previously 13 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] 14 futility of amendment.” Foman, 371 U.S. at 182. 15 Here, the undersigned finds leave to amend would be futile given Plaintiff’s failure to 16 state or even suggest in his opposition brief that he did, in fact, comply with the GCA. 17 Accordingly, the Court will recommend that Plaintiff’s claims in the operative complaint (doc. 18 16) against Defendant Ortega be dismissed without leave to amend. 19 III. CONCLUSION 20 Accordingly, it is HEREBY RECOMMENDED: 21 1. Defendant Ortega’s motion to dismiss (Doc. 33) be GRANTED; and 22 2. Plaintiff’s state law claims of gross negligence and medical malpractice against 23 Defendant Ortega be DISMISSED and Defendant Ortega be TERMINATED from 24 this action. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 27 after being served with these Findings and Recommendations, the parties may file written 28 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” The parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 3 | 839 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 | IT IS SO ORDERED. > | Dated: _ January 2, 2024 | Word 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28