(PC) McCoy v. Torres ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON D. MCCOY, No. 1:19-cv-01023-NONE-JLT (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS AND GRANTING 14 D. TORRES, et al., MOTION TO DISMISS 15 Defendants. (Doc. Nos. 28, 30) 16 17 Plaintiff Aaron D. McCoy is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 This case proceeds on plaintiff’s claims of excessive force and deliberate indifference to 21 serious medical needs in violation of his rights under the Eighth Amendment, as well as 22 negligence and intentional infliction of emotional stress under state law, based on an incident that 23 occurred on July 2, 2017. (Doc. Nos. 11, 17.) On July 14, 2020, defendants filed a motion to 24 dismiss plaintiff’s state-law claims on the grounds that plaintiff failed to submit an administrative 25 claim within six months of the accrual of the causes of action, as required by the California 26 Government Claims Act. (Doc. No. 28.) Plaintiff failed to file an opposition or a statement of 27 non-opposition to defendants’ motion. 1 On September 3, 2020, the assigned magistrate judge filed findings and recommendations, 2 recommending that defendants’ motion to dismiss be granted and that plaintiff’s state-law claims 3 be dismissed from this action. (Doc. No. 30.) The magistrate judge took judicial notice of 4 records from the California Government Claims Program (“GCP”), which indicate that plaintiff 5 has never filed a claim with the GCP regarding the incident at issue in this action. (Id. at 3.) 6 Based on these records, the magistrate judge found that plaintiff failed to comply with the 7 Government Claims Act. (Id.) Because plaintiff had failed to file a response to defendants’ 8 motion to dismiss, the magistrate judge deemed any opposition waived, pursuant to Local Rule 9 230(l). (Id. at 1.) 10 The magistrate judge provided plaintiff 21 days to file objections to the findings and 11 recommendations. (Id. at 3.) After receiving an extension of time, plaintiff filed objections on 12 November 2, 2020. (Doc. No. 36.) Therein, plaintiff contends that he “sent a government claim 13 to that Claim Board shortly after he filed the now exhausted grievance . . . but apparently, the 14 documents were never mailed by staff.” (Id. at 1.) 15 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 16 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 17 objections, the court finds the findings and recommendations to be supported by the record and 18 proper analysis. 19 As an initial matter, the magistrate judge deemed plaintiff’s failure to respond to 20 defendants’ motion to dismiss as a waiver of any opposition, which is permitted by Local Rule 21 230(l). The court may grant defendants’ motion on this ground alone. 22 Even considering plaintiff’s objections as a belated opposition to the pending motion to 23 dismiss, the court finds that defendants’ motion should be granted. It is undisputed that the GCP 24 never received an administrative claim from plaintiff regarding the incident underlying this 25 action. Although plaintiff contends that he submitted a claim to prison officials but that it was 26 “apparently . . . never mailed,” (Doc. No. 36 at 1), he provides no evidence or details to support 27 this contention, such as a declaration signed under penalty of perjury, a copy of the claim he 1 | mailing. Furthermore, plaintiff does not contend that he ever contacted the GCP to inquire as to 2 | why he never received a response to his administrative claim, despite having allegedly submitted 3 | it more than three years ago. Lastly, the allegation that prison officials purposefully failed to mail 4 | plaintiffs claim to the GCP is belied by the fact that they did, apparently, submit his inmate 5 || grievance as required by the Prison Litigation Reform Act. (See id.) A plaintiff is “only deemed 6 | to have substantially complied [with the Government Claims Act] if they are actually received by 7 | the entity.” Hoffmann vy. Oliveros, No. 18-CV-06577-JD, 2020 WL 3060745, at *5 (N.D. Cal. 8 | June 9, 2020). For these reasons, the court finds that plaintiff's contention is a self-serving 9 | assertion without support to meaningfully challenge defendants’ showing that he failed to comply 10 | with the Government Claims Act. 11 Accordingly, 12 1. The findings and recommendations issued on September 3, 2020 (Doc. No. 30) are 13 adopted in full; 14 2. Defendants’ motion to dismiss (Doc. No. 28) is granted; 15 3. Plaintiffs state-law claims are dismissed from this action; and, 16 4. This action is referred back to the assigned magistrate judge for further proceedings. 17 | IT IS SO ORDERED. me □ Dated: _ January 11,2021 Vila A Drag 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28