taking judicial notice of statement of claim filed with the California Victim 20 Compensation and Government Claims Board
How later courts described this case
- taking judicial notice of statement of claim filed with the California Victim 20 Compensation and Government Claims Board
- 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.”
- “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.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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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
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REHABILITATION, et al.,
[DKT. NO. 10]
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Defendants.
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This Report and Recommendation is submitted to United States District Judge
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Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(e) and
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72.3(e).
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Plaintiff Elvin John Hamilton is an inmate at R.J. Donovan Correctional Facility
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(“RJD”). On October 7, 2019, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983
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claiming that RJD staff violated his civil rights by failing to respond appropriately to his
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medical emergency. Dkt. No. 1.
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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
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1 Plaintiff erroneously named E. Corleone as Erica Gayle in the Complaint. See
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Dkt. No. 10 at 2.
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2 The Court presumes Defendant S. Shepard was inadvertently excluded from being
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named as a moving party in Defendants’ Motion. This Report and Recommendation,
25 therefore, also applies to Plaintiff’s claims against Defendant Shepard.
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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
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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.
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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
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