Livingston v. Sanchez et al
Filing
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ORDER ADOPTING 43 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER GRANTING 28 Defendants' Motion to Dismiss; and ORDER DISMISSING Plaintiff's State Law Claims signed by District Judge Lawrence J. O'Neill on 11/27/2012. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WARNER LIVINGSTON,
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CASE NO. 1:10-cv–01152-LJO-BAM PC
Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS; MOTION TO DISMISS
STATE LAW CLAIMS
v.
J. SANCHEZ, et al.,
(ECF Nos. 28, 36, 37, 43, 48)
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Defendants.
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Plaintiff Warner Livingston is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant
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to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 10, 2012, the Magistrate Judge filed a Findings and Recommendations which was
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served on the parties and which contained notice to the parties that any objections to the Findings
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and Recommendations were to be filed within thirty days. After receiving several extensions of
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time, Plaintiff filed an Objection on November 26, 2012.
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Plaintiff argues that the Government Tort Claims Act and the California Department of
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Corrections policies conflict because he is required to first pursue the prison grievance process
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before filing suit. Plaintiff does not cite any authority for his contention that he was required to
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pursue his administrative remedies prior to filing a claim with the Victim Compensation and
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Government Claims Board. See Walker v. California Dep’t Corr., No. 2:09-cv-00569-WBS KJN
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P, 2012 WL 591954, at *8 (E.D.Cal. Feb. 22, 2012) (finding no requirement that prisoner exhaust
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his administrative remedies prior to filing suit with the Government Claims Board). Further, the
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California Code of Regulations state that “an inmate or parolee who intends to submit a claim with
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the Victim Compensation and Government Claims Board shall adhere to the rules and time frames
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governing those claims, which may be more restrictive than those of the CDCR appeals process.”
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Calif. Code of Regs., tit. 15 § 3084.9(f)(9).
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Plaintiff argues he is required to provide proof of his claim and he must generate evidence
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by filing his administrative appeal. However, a review of the claim refutes this argument. The claim
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form does not request any information regarding administrative remedies and the only
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documentation Plaintiff attached to the claim was the Medical Report of Injury or Unusual
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Occurrence which was created on the date of the incident. (Request for Judicial Notice, Exhibit A,
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ECF No. 29-1.) Plaintiff was able to submit the Government Tort Claims Act while he pursued his
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administrative remedies and the Regulations informed Plaintiff that he was required to adhere to the
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time frames established to file a claim with the Victim Compensation and Government Claims
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Board.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings
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and Recommendations to be supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The Findings and Recommendations, filed August 10, 2012, is adopted in full;
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Defendants’ Motion to Dismiss, filed April 12, 2012, is GRANTED;
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3.
Plaintiff’s state law claims are dismissed from this action for failure to state a claim;
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4.
This action is proceeding on the complaint, filed June 25, 2010, against Defendants
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Sanchez and Ayon for excessive force in violation of the Eighth Amendment; and
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5.
This action is referred back to the Magistrate Judge for further proceedings.
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IT IS SO ORDERED.
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Dated:
b9ed48
November 27, 2012
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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