(PC) McCoy v. Torres ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON D. MCCOY, Case No. 1:19-cv-01023-NONE-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ PARTIAL 13 v. MOTION TO DISMISS 14 D. TORRES, et al., (Doc. 28) 15 Defendants. 21-DAY DEADLINE 16 17 Before the Court is Defendants’ partial motion to dismiss Plaintiff’s complaint pursuant to 18 Federal Rule of Civil Procedure 12(b)(6). (Doc. 28.) For the reasons set forth below, the Court 19 recommends that the motion be granted. 20 I. BACKGROUND 21 Plaintiff’s operative claims are for excessive force and deliberate indifference to serious 22 medical needs pursuant to 42 U.S.C. § 1983, and negligence and intentional infliction of 23 emotional distress under state law. (Doc. 17; see also Docs. 11, 19.) Defendants filed their partial 24 motion to dismiss on the grounds that Plaintiff failed to submit an administrative claim with the 25 California Government Claims Board for his state-law claims. (Doc. 28.) Though Defendants’ 26 served the motion to dismiss on Plaintiff (see id. at 3; Doc. 28-1 at 6), Plaintiff failed to file an 27 opposition or a statement of non-opposition to the motion within 21 days. The Court finds that Plaintiff has waived any opposition and deems the motion submitted. See Local Rule 230(l). 1 II. LEGAL STANDARD 2 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro 3 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a 12(b)(6) motion, the Court’s review is 4 generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint, 5 and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 6 F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks and citations omitted). Dismissal is 7 proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged 8 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 9 1988) (citation omitted). 10 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 11 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 12 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court 13 “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light 14 most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 15 (9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners 16 liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 17 2010) (citation omitted). However, “the liberal pleading standard … applies only to a plaintiff’s 18 factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). 19 III. DISCUSSION 20 “California’s Government Claims Act requires that a tort claim against a [state] public 21 entity or its employees for money or damages be presented to the California Victim 22 Compensation and Government Claims Board … no more than six months after the cause of 23 action accrues.” Lopez v. Cate, No. 1:10-cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 24 2015) (citing Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950-950.2). “Timely claim 25 presentation is not merely a procedural requirement, but is … a condition precedent to plaintiff’s 26 maintaining an action against defendant and thus an element of the plaintiff’s cause of action.” Id. 27 (internal quotation marks and citations omitted). The “obligation to comply with the Government 1 Prison Litigation Reform Act. McPherson v. Alamo, No. 3:15-cv-03145-EMC, 2016 WL 2 7157634, at *6 (N.D. Cal. 2016) (citing Parthemore v. Col, 221 Cal. App. 4th 1372, 1376 3 (2013)). 4 Defendants request that the Court take judicial notice of the following records from the 5 Government Claims Program (“GCP”) within the California Department of General Services 6 (formerly the Victim Compensation and Government Claims Board), pursuant to Federal Rule of 7 Evidence 201(b)(2): a declaration from a legal analyst within the California Attorney General’s 8 Office attesting to a search of the GCP’s Standardized Insurance Management System (“SIMS”) 9 computer database for claims from Plaintiff, as well as a declaration from a staff services 10 manager within the GCP confirming that the Attorney General’s Office has read-only access to 11 the GCP’s SIMS computer database. (Doc. 29.) The records, attached to Defendants’ request for 12 judicial notice, indicate that Plaintiff has not filed a claim with the GCP regarding the July 2, 13 2017 incident that is the subject of this action. (See id. at 5, 7.) 14 Based on the above records, the Court takes judicial notice of the fact that Plaintiff has not 15 filed a claim with the Government Claims Program regarding the incident underlying this action. 16 See Fed. R. Evid. 201(b)(2), (c)(2). Accordingly, the Court finds that Plaintiff has not complied 17 with the Government Claims Act. The Court notes that Plaintiff also fails to allege compliance 18 with the Government Claims Act in his complaint. 19 IV. CONCLUSION AND RECOMMENDATION 20 Based on the foregoing, the Court RECOMMENDS that Defendants’ partial motion to 21 dismiss (Doc. 28) be GRANTED and that Plaintiff’s claims of negligence and intentional 22 infliction of emotional distress be DISMISSED. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 25 of the date of service of these Findings and Recommendations, Plaintiff may file written 26 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Failure to file objections within the specified time may result in 1 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 IT IS SO ORDERED. 3 4 Dated: September 2, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27