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5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES JOHNSON, No. 2: 19-cv-1752 MCE KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 E. HALL, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding through counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. On September 5, 2019, defendants removed this action from state court. 20 (ECF No. 1.) 21 Pending before the court is defendants’ motion to dismiss pursuant to Federal Rule of 22 Civil Procedure 12(b)(6). (ECF No. 16.) 23 Legal Standard for 12(b)(6) Motion 24 A complaint may be dismissed for “failure to state a claim upon which relief may be 25 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 26 plaintiff must allege “enough facts to state a claim for relief that is plausible on its face.” Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 28 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 1 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 2 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 3 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 4 Iqbal, 556 U.S. at 678. 5 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 6 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co. v. Space 7 Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Dismissal also is appropriate if the complaint 8 alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 9 (9th Cir. 1984). 10 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. 11 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the court need not accept as 12 true unreasonable inferences or conclusory legal allegations cast in the form of factual 13 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining 14 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). 15 In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally 16 consider only allegations contained in the pleadings, exhibits attached to the complaint, and 17 matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 18 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not 19 consider a memorandum in opposition to a defendant’s motion to dismiss to determine the 20 propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 21 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding 22 whether to grant leave to amend. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 23 2003). 24 Plaintiff’s Claims 25 This action proceeds on plaintiff’s second amended complaint filed June 16, 2020, as to 26 defendants Hall, California Department of Corrections and Rehabilitation (“CDCR”) and High 27 Desert State Prison (“HDSP”). (ECF No. 14.) 28 //// 1 In claim one, plaintiff alleges that defendant Hall used excessive force on June 27, 2017, 2 in violation of the Eighth Amendment, when he yanked plaintiff’s arm and caused plaintiff to 3 suffer a torn rotator cuff and other injuries. In claim two, plaintiff alleges that defendant Hall 4 committed battery on June 27, 2017, in violation of state law, when he yanked plaintiff’s arm and 5 caused plaintiff to suffer a torn rotator cuff and other injuries. 6 In claim three, plaintiff alleges that all defendants acted negligently, in violation of state 7 law. Plaintiff alleges that defendants CDCR and HDSP acted negligently by failing to properly 8 train defendant Hall in the use of force policies, which resulted in defendant Hall yanking 9 plaintiff’s arm and causing a torn rotator cuff and other injuries. Plaintiff alleges that defendant 10 Hall’s negligence caused plaintiff to suffer the torn rotator cuff and other injuries. 11 Discussion 12 Requests for Judicial Notice 13 In support of the motion to dismiss, defendants request that the court take judicial notice 14 of documents related to plaintiff’s California Government Claim and the court docket for Lassen 15 County Superior Court Case No. 62151. (ECF No. 17.) In the opposition, in relevant part, 16 plaintiff requests that the court take judicial notice of a docket for the California Court of Appeal. 17 (ECF No. 20.) 18 These documents are properly subject to judicial notice as public records whose 19 authenticity is not reasonably disputable. See Lawrence v. City of San Bernardino, 2005 WL 20 5950105, at *3 (C.D. Cal. July 27, 2005) (“Because a Government Claim is a public record, the 21 Court takes judicial notice of Plaintiffs’ filing of the Government Claim[.]”); Porter v. Ollison, 22 620 F.3d 952, 955 n.1 (9th Cir. 2010) (taking judicial notice of court dockets, including those 23 available on the Internet, from petitioner’s state court proceedings). 24 Did Plaintiff Fail to Comply with California Government Tort Claim Act? 25 In the motion to dismiss, defendants move to dismiss plaintiff’s state law claims against 26 defendant Hall for failure to comply with the Government Tort Claim Act. (ECF No. 16 at 7.) 27 However, defendants later indicate that they are moving to dismiss plaintiff’s state law claims 28 against all defendants. (Id. at 10.) 1 The filing of a timely claim with the public entity is a condition precedent to the filing of a 2 lawsuit against a public entity or its employees. Le Mere v. L.A. Unified School Dist., 35 3 Cal.App. 5th 237, 246 (Cal. App. 2019) (The Government Claims Act “establishes certain 4 conditions precedent to the filing of a lawsuit against a public entity...a plaintiff must timely file a 5 claim for money or damages with the public entity...[and] [t]he failure to do so bars the plaintiff 6 from bringing suit against that entity.”) (internal citations omitted). “Timely claim presentation is 7 not merely a procedural requirement, but is a condition precedent to the claimant’s ability to 8 maintain an action against the public entity, and “[o]nly after the public entity’s board has acted 9 upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a 10 cause of action in tort against the public entity.” Id. (internal citations omitted); Mangold v. 11 California Pub. Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir.
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5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES JOHNSON, No. 2: 19-cv-1752 MCE KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 E. HALL, et al., 15 Defendants. 16 17 Introduction 18 Plaintiff is a state prisoner, proceeding through counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. On September 5, 2019, defendants removed this action from state court. 20 (ECF No. 1.) 21 Pending before the court is defendants’ motion to dismiss pursuant to Federal Rule of 22 Civil Procedure 12(b)(6). (ECF No. 16.) 23 Legal Standard for 12(b)(6) Motion 24 A complaint may be dismissed for “failure to state a claim upon which relief may be 25 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 26 plaintiff must allege “enough facts to state a claim for relief that is plausible on its face.” Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 28 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 1 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 2 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 3 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 4 Iqbal, 556 U.S. at 678. 5 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 6 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co. v. Space 7 Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Dismissal also is appropriate if the complaint 8 alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 9 (9th Cir. 1984). 10 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. 11 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the court need not accept as 12 true unreasonable inferences or conclusory legal allegations cast in the form of factual 13 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining 14 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). 15 In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally 16 consider only allegations contained in the pleadings, exhibits attached to the complaint, and 17 matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 18 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not 19 consider a memorandum in opposition to a defendant’s motion to dismiss to determine the 20 propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 21 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding 22 whether to grant leave to amend. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 23 2003). 24 Plaintiff’s Claims 25 This action proceeds on plaintiff’s second amended complaint filed June 16, 2020, as to 26 defendants Hall, California Department of Corrections and Rehabilitation (“CDCR”) and High 27 Desert State Prison (“HDSP”). (ECF No. 14.) 28 //// 1 In claim one, plaintiff alleges that defendant Hall used excessive force on June 27, 2017, 2 in violation of the Eighth Amendment, when he yanked plaintiff’s arm and caused plaintiff to 3 suffer a torn rotator cuff and other injuries. In claim two, plaintiff alleges that defendant Hall 4 committed battery on June 27, 2017, in violation of state law, when he yanked plaintiff’s arm and 5 caused plaintiff to suffer a torn rotator cuff and other injuries. 6 In claim three, plaintiff alleges that all defendants acted negligently, in violation of state 7 law. Plaintiff alleges that defendants CDCR and HDSP acted negligently by failing to properly 8 train defendant Hall in the use of force policies, which resulted in defendant Hall yanking 9 plaintiff’s arm and causing a torn rotator cuff and other injuries. Plaintiff alleges that defendant 10 Hall’s negligence caused plaintiff to suffer the torn rotator cuff and other injuries. 11 Discussion 12 Requests for Judicial Notice 13 In support of the motion to dismiss, defendants request that the court take judicial notice 14 of documents related to plaintiff’s California Government Claim and the court docket for Lassen 15 County Superior Court Case No. 62151. (ECF No. 17.) In the opposition, in relevant part, 16 plaintiff requests that the court take judicial notice of a docket for the California Court of Appeal. 17 (ECF No. 20.) 18 These documents are properly subject to judicial notice as public records whose 19 authenticity is not reasonably disputable. See Lawrence v. City of San Bernardino, 2005 WL 20 5950105, at *3 (C.D. Cal. July 27, 2005) (“Because a Government Claim is a public record, the 21 Court takes judicial notice of Plaintiffs’ filing of the Government Claim[.]”); Porter v. Ollison, 22 620 F.3d 952, 955 n.1 (9th Cir. 2010) (taking judicial notice of court dockets, including those 23 available on the Internet, from petitioner’s state court proceedings). 24 Did Plaintiff Fail to Comply with California Government Tort Claim Act? 25 In the motion to dismiss, defendants move to dismiss plaintiff’s state law claims against 26 defendant Hall for failure to comply with the Government Tort Claim Act. (ECF No. 16 at 7.) 27 However, defendants later indicate that they are moving to dismiss plaintiff’s state law claims 28 against all defendants. (Id. at 10.) 1 The filing of a timely claim with the public entity is a condition precedent to the filing of a 2 lawsuit against a public entity or its employees. Le Mere v. L.A. Unified School Dist., 35 3 Cal.App. 5th 237, 246 (Cal. App. 2019) (The Government Claims Act “establishes certain 4 conditions precedent to the filing of a lawsuit against a public entity...a plaintiff must timely file a 5 claim for money or damages with the public entity...[and] [t]he failure to do so bars the plaintiff 6 from bringing suit against that entity.”) (internal citations omitted). “Timely claim presentation is 7 not merely a procedural requirement, but is a condition precedent to the claimant’s ability to 8 maintain an action against the public entity, and “[o]nly after the public entity’s board has acted 9 upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a 10 cause of action in tort against the public entity.” Id. (internal citations omitted); Mangold v. 11 California Pub. Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) (“The California Tort 12 Claims Act requires, as a condition precedent to suit against a public entity, the timely 13 presentation of a written claim and the rejection of the claim in whole or in part [and] [w]here 14 compliance with the Tort Claims Act is required, the plaintiff must allege compliance or 15 circumstances excusing compliance, or the complaint is subject to general demurrer.”) (internal 16 citations and quotation marks omitted). 17 Defendants move to dismiss plaintiff’s state law claims on the grounds that plaintiff failed 18 to file a timely claim with the California Victim Compensation and Government Claims Board 19 (“Board”). Defendants argue that the Board denied plaintiff’s application for leave to file a late 20 claim when it failed to respond to the application within 45 days. Defendants also observe that 21 the Lassen County Superior Court denied plaintiff’s petition for relief in which he argued that his 22 claim filed with the Board was timely. 23 In his opposition, plaintiff alleges that he has appealed the order by the Lassen County 24 Superior court denying his petition. (ECF No. 19 at 7.) Plaintiff alleges that the appeal is 25 pending in the California Court of Appeal. (Id.) 26 On December 29, 2020, the undersigned ordered plaintiff to inform the court of the status 27 of his appeal. (ECF No. 22.) On January 7, 2021, plaintiff informed the court that his appeal is 28 still pending in the California Court of Appeal. (ECF No. 23.) 1 Based on plaintiff’s pending appeal, the undersigned finds that consideration of the merits 2 of defendants’ motion to dismiss plaintiff’s state law claims may be premature. The undersigned 3 orders the parties to file further briefing addressing whether plaintiff’s state law claims should be 4 stayed pending the outcome of plaintiff’s appeal.1 Accordingly, defendants’ motion to dismiss 5 plaintiff’s state law claims on the grounds that plaintiff’s tort claim was denied as untimely is 6 vacated. 7 While the issue of whether plaintiff’s state law claims may proceed is undecided, 8 defendant Hall is ordered to file a response to plaintiff’s Eighth Amendment claim. 9 Are Defendants CDCR and HDSP Entitled to Eleventh Amendment Immunity? 10 Defendants argue that even if the court finds that plaintiff may proceed on his state law 11 claims against defendants CDCR and HDSP, these agencies are immune from suit pursuant to the 12 Eleventh Amendment. In the opposition, plaintiff appears to agree with defendants’ argument 13 that defendants CDCR and HDSP are immune from suit pursuant to the Eleventh Amendment. 14 In the September 13, 2019 order screening plaintiff’s complaint, at defendants’ request, 15 the undersigned found that defendants waived their Eleventh Amendment immunity by removing 16 this action to state court: 17 At the outset, the undersigned finds that a state waives Eleventh Amendment immunity by removing a case to federal court. See 18 Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 619-24 (2002). That is so because “removal is a form of 19 voluntary invocation of a federal court’s jurisdiction sufficient to waive the State’s otherwise valid objection to litigation of a 20 matter…in a federal forum.” Id. at 624. The waiver applies to both state law and federal claims, regardless of the motive for removal, 21 and irrespective of any amendments to the complaint made in federal court following removal. Embury v. King, 361 F.3d 562564-66 (9th 22 Cir. 2004) (“hold[ing] to a straightforward, easy-to-administer rule in accord with Lapides: Removal waives Eleventh Amendment 23 immunity.”) 24 Because defendants removed this action, plaintiff’s state and federal claims against defendants CDCR, HDSP and CCHCS are not barred 25
1 In the further briefing, the parties may address whether plaintiff’s state law claims should be 26 stayed pursuant to the Younger abstention doctrine, if appropriate. See Younger v. Harris, 401 27 U.S. 37 (1971). The parties may address any other legal doctrine they deem applicable to consideration of whether plaintiff’s state law claims should be stayed pending the outcome of 28 plaintiff’s appeal. 1 by Eleventh Amendment immunity. 2 (ECF No. 3 at 4.) 3 Defendants did not object to the September 13, 2019 order finding that they waived 4 Eleventh Amendment immunity. By failing to object to the September 13, 2019 order, the 5 undersigned finds that defendants waived Eleventh Amendment immunity. See Aholelei v. 6 Department of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (“Express waiver is not 7 required; a state ‘waive[s] its Eleventh Amendment immunity by conduct that is incompatible 8 with an intent to preserve that immunity.’”) (citations omitted). 9 In the alternative, the undersigned finds that defendants are not entitled to Eleventh 10 Amendment immunity for the reasons stated in the September 13, 2019 order. 11 Accordingly, for the reasons set forth above, defendants’ motion to dismiss plaintiff’s 12 state law claims against defendants CDCR and HDSP on the grounds that they are entitled to 13 Eleventh Amendment immunity should be denied. 14 Claims Against Defendants CCHCS, Hollandsworth, Wentz, Smith, Anderson, Speiker, 15 David, Shannon and Phillips 16 Defendants CCHCS, Hollandsworth, Wentz, Smith, Anderson, Speiker, David, Shannon 17 and Phillips were named as defendants in plaintiff’s first amended complaint, but not as 18 defendants in the operative second amended complaint. Because it appears that plaintiff has 19 abandoned his claims against these defendants, defendants now request that these defendants be 20 dismissed. 21 In his opposition, plaintiff states that he agrees that defendants CCHCS, Hollandsworth, 22 Wentz, Smith, Anderson, Speiker, David, Shannon and Phillips should be dismissed. Good cause 23 appearing, the undersigned construes plaintiff’s opposition to contain a request to voluntarily 24 dismiss these defendants. Pursuant to Fed. R. Civ. P. 41(a), plaintiff’s request shall be honored. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. Defendants’ motion to dismiss plaintiff’s state law claims for failing to comply with 27 the Government Claims Act (ECF No. 16) is vacated; 28 2. Within thirty days of the date of this order, defendants shall file further briefing (or a 1 motion to stay, if appropriate), addressing whether plaintiffs state law claims should 2 be stayed, as discussed above; plaintiff shall file a reply brief/opposition within 3 twenty-one days thereafter; 4 3. Defendants CCHCS, Hollandsworth, Wentz, Smith, Anderson, Speiker, David, 5 Shannon and Phillips are dismissed; the Clerk of the Court shall amend the court 6 docket to reflect the dismissal of these defendants; 7 4. Within thirty days of the date of this order, defendant Hall shall file a response to 8 plaintiff's Eighth Amendment claim; and 9 IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss plaintiff's state 10 | law claims against defendants CDCR and HDSP on the grounds that they are entitled to Eleventh 11 | Amendment immunity (ECF No. 16) be denied. 12 These findings and recommendations are submitted to the United States District Judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 | objections with the court and serve a copy on all parties. Such a document should be captioned 16 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 | objections shall be filed and served within fourteen days after service of the objections. The 18 | parties are advised that failure to file objections within the specified time may waive the right to 19 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 | Dated: January 11, 2021 2H Fensbl A Abar 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 24 25 26 John1752.mtd(2) 27 28