Payan v. Tate et al

Filing 149

ORDER Denying Plaintiff's Second 133 Motion to Amend First Amended Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 3/5/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. PAYAN,

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Plaintiff,
v.
TATE, et al.,

No. 1:13-cv-00807 LJO BAM PC
ORDER DENYING PLAINTIFF’S SECOND
MOTION TO AMEND FIRST AMENDED
COMPLAINT
(ECF No. 133)

Defendants.

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Plaintiff Michael J. Payan (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action. This action is proceeding on Plaintiff’s October 19, 2015, First

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Amended Complaint.

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On November 4, 2015, the Court screened Plaintiff’s FAC and found the following

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constitutional claims: (1) retaliation in violation of the First Amendment by Defendants

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Bingamon, Tate, Vu, Shiesha, V. Baniga, Joaquin, D. Longcrier, Does “for L.D. Zamora,” and

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Does “for J. Lewis;” (2) deliberate indifference to a serious medical need in violation of the

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Eighth Amendment against Defendants Bingamon, Tate, Vu, Shiesha, Joaquin, Does “for L.D.

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Zamora,” Baniga, Longcrier and Does for “J. Lewis.” (ECF No. (hereinafter “Doc.”) 84.) On

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April 19, 2016, the Court granted Defendants’ motion for summary judgment for failure to

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exhaust in part and dismissed certain claims. The motion related only to events prior to May 28,

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2013, and the following claims survived: (1) Plaintiff’s deliberate indifference claim against

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Defendant Tate related to the December 2, 2010, visit; (2) Plaintiff’s deliberate indifference
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claim against Defendant Vu related to his refusals (prior to May 28, 2013) to send Plaintiff for an

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MRI; and (3) Eighth Amendment deliberate indifference claim and First Amendment retaliation

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claim for events post May 28, 2013. Plaintiff also asserted state law negligence claims against

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Defendants Vu, Tate, Shiesha, Baniga, Joaquin, and DOES.

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On April 15, 2016, Defendants filed a motion to dismiss the claims in the First Amended

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Complaint related to events after May 28, 2013. The motion argues, among other things, that

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Plaintiff’s state law claims should be dismissed for failure to comply with California’s

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Government Claim Act. That motion is pending.

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On June 6, 2016, Plaintiff opposed the motion to dismiss and in conjunction with his

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opposition, Plaintiff filed a Motion to Amend his First Amended Prisoner Civil Rights Complaint.

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(Doc. 123.) Then on August 15, 2016, Plaintiff filed a Second Motion to Supplement the First

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Amended Complaint (“Second Motion”). (Doc. 133.) In the Second Motion, Plaintiff asked the

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Court to strike his previous Motion to Amend and substitute the Second Motion. The Court

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granted Plaintiff’s request to withdraw his first Motion to Amend.1

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Now pending is Plaintiff’s Second Motion to Supplement the First Amended Complaint.

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(Doc. 133.) Defendants filed an opposition to the Second Motion on August 31, 2016. (Doc.

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135) Plaintiff filed his reply (entitled “opposition”) on October 3, 2016. (Doc. 138.) The Second

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Motion is submitted on the papers. Local Rule 230(l).

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OVERVIEW

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A. Summary of the First Amended Complaint

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Plaintiff injured his left shoulder in a fall in the shower on or about July 21, 2010. He felt

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a painful tear in his left shoulder when he fell. He reported the pain to several treating physicians

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at California Correctional Institution (“CCI”) where Plaintiff was housed at the time. As relevant

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to the allegations, Plaintiff repeatedly attempted to get treatment for the ongoing pain and injury

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over a four year period. The treatments he received, if and when he was treated, were medically

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inadequate and exacerbated the injury and the resulting pain. Plaintiff also alleges that he was

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That order granting Plaintiff’s request to withdraw his first motion to amend is filed concurrently with this order.

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retaliated against for submitting numerous grievances.
B. Parties’ Arguments on the Second Motion

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1. Plaintiff’s (Second) Motion to Supplement First Amended Complaint

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Plaintiff seeks to file a supplement to the first amended complaint to allege that he

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complied with the Government Claims Act and that he has exhausted his state law remedies.

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Plaintiff argues that the allegations in the first amended complaint have survived defendant’s

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motion for failure to exhaust administrative remedies. (Doc. 133 p.2.)2 The complaint alleges

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state law claims and federal claims. The court has exercised jurisdiction and there is no reason to

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change the court’s previous ruling. Id.

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Plaintiff asks pursuant to Fed.R.Civ.P. 15(d) that the Court permit the supplementation to

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correct a defect in the original pleading. Plaintiff argues that justice requires that the Court permit

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the supplementation to cure the deficiency in the first amended complaint.

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In conjunction with the Second Motion to Supplement, Plaintiff lodged a proposed

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supplemental pleading. (Proposed Supplemental Pleading, Doc. 134.) Plaintiff’s supplemental

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pleading alleges that the court has supplemental jurisdiction over Plaintiff’s state law claims.

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(Doc. 134 p. 2.) in the supplement, Plaintiff expands specific allegations as to each remaining

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defendants on the state law negligence claim and further alleges the breach of duties in caring for

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him. After each allegation, Plaintiff alleges, “Plaintiff filed government claim action and

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exhausted all the issues to this claim.” (e.g., Doc. 134, p. 4.) Plaintiff also attaches numerous, of

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what appears to be, articles from a website www.uptodate.com related to rotator cuff

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tendinopathy. (Doc. 134, p. 9-61.)

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2. Defendants’ Position on Compliance with the Government Claims Act

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In opposition to Plaintiff’s Second Motion to Supplement, Defendants argue that

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Plaintiff’s supplemental allegations are false and futile. Defendants argue that documents, which

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can be judicially noticed, from the Victim Compensation and Government Claims Board show

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Page references to filed documents reflect the court's electronic pagination when docketed in the court's Case
Management/Electronic Case Files (CM/ECF) system, not the original pagination of the filed documents.

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that Plaintiff did not timely present his claim and that the Board rejected his request to file a late

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claim. (Doc. 135.) Plaintiff’s failure to comply with the Government Claims Act unequivocally

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bars his state law negligence claims.

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Defendants argue that Plaintiff seeks relief from this Court to late file a tort claim, but this

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Court lacks jurisdiction to grant that relief. See Hernandez v. McClanahan, 996 F.Supp. 975, 978

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(N.D. Cal. 1998) (finding federal district courts lack jurisdiction over inmate’s petition for relief

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from Government Claims Act’s requirements).

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3.

Plaintiff’s Reply

Plaintiff argues that he presented his claim to the Board of Government Claim “clearly

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stating it was filed on the continual violation doctrine.” (Doc. 138 p. 2.) Plaintiff argues that the

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continuing doctrine applies because his injury is ongoing. He presented all his issues in his Claim

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to the Government Claims Board. Plaintiff contends that “What they [the Board] did, is not

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within my control, to my complaint I presented all issues.” (Doc. 138 p.2.)

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DISCUSSION
A. Government Claims Act

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Under the Government Claims Act, set forth in California Government Code sections 810

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et seq., a plaintiff may not bring a suit for monetary damages against a public employee or entity

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unless the plaintiff first presented the claim to the California Victim Compensation and

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Government Claims Board (“VCGCB” or “Board”), and the Board acted on the claim, or the time

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for doing so expired. “The Tort Claims Act requires that any civil complaint for money or

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damages first be presented to and rejected by the pertinent public entity.” Munoz v. California, 33

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Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this requirement is “to

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provide the public entity sufficient information to enable it to adequately investigate claims and to

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settle them, if appropriate, without the expense of litigation.” City of San Jose v. Superior Court,

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12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) (citations omitted). Compliance with

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this “claim presentation requirement” constitutes an element of a cause of action for damages

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against a public entity or official. State v. Superior Court (Bodde), 32 Cal.4th 1234, 1244, 13

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Cal.Rptr.3d 534, 90 P.3d 116 (2004). Failure to demonstrate such compliance constitutes a failure
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to state a cause of action and will result in the dismissal of state law claims. State of California v.

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Superior Court (Bodde), 32 Cal.4th at 1240.

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Federal courts likewise require compliance with the Government Claims Act for pendant

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state law claims that seek damages against state public employees or entities. Willis v. Reddin,

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418 F.2d 702, 704 (9th Cir. 1969); Mangold v. California Public Utilities Commission, 67 F.3d

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1470, 1477 (9th Cir. 1995). State tort claims included in a federal action, filed pursuant to 42

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U.S.C. § 1983, may proceed only if the claims were first presented to the state in compliance with

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the claim presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d

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621, 627 (9th Cir. 1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D. Cal.

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2008).
B. Request for Judicial Notice

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The Defendants filed on April 15, 2016 a request that the Court take judicial notice under

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Federal Rule of Evidence 201 of the VCGCB records for Claim No. G–624711 filed by Plaintiff

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Michael Payan. (Doc. 110.) Defendants attached to the request for judicial notice a certification

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from Katrina DeCaro, Custodian of Records for the Government Claims Program, that certifies

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that the documents attached to her certification are true and correct copies of the documents

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constituting the record of the claim of Plaintiff Michael Payan. (ECF No. 110 p.4.) Therefore, as

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it is not in dispute that these are the records of Plaintiff Michael Payan for Claim Number G-

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624711, the Court will take judicial notice of these documents.

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The documents consist of the following. A Government Claim Form, stamped received

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by the State of California Government Claims Program, on May 19, 2015. The claim form was

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given number 624711 and bears a signature, with a printed name adjacent, of “Michael J. Payan.”

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(Doc. 110, p.12-13.) A letter from the Victim Compensation and Government Claims Board

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dated June 2, 2015 stating that the “Claim G624711 for Michael J. Payan, T08858” is untimely.

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(Doc. 110 p. 10.) A letter from VCGCB dated July 21, 2015 rejecting Michael Payan’s

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application for leave to present a late claim. (Doc. 110, p.7.) That rejection was affirmed at

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Board meeting on August 20, 2015 and Michael Payan was notified by letter dated August 28,

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2015. (Doc. 110 p.6.)
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C. Leave to Amend

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Plaintiff’s motion seeks leave to “supplement” the first amended complaint with expanded

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state law allegations against the defendants and an allegation of compliance with the Government

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Claims Act. Plaintiff’s proposed “supplement,” however, is not a proper supplement under

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Fed.R.Civ. P. 15(d).

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A court “may, on just terms, permit a party to serve a supplemental pleading setting out

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any transaction, occurrence, or event that happened after the date of the pleading to be

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supplemented.” Fed.R.Civ.P. 15(d). A supplemental pleading is used to allege relevant facts

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occurring after the original pleading was filed. Fed.R.Civ.P, 15(d); Keith v. Volpe, 858 F2d 467,

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473-474 (9th Cir. 1988).
Here, Plaintiff’s proposed supplement does not relate to events occurring after the original

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complaint or the first amended complaint was filed. Rather, the supplement seeks to allege in

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more specificity the state law negligence claim against the defendants. Further, it seeks to allege

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compliance with state law exhaustion requirements. These events occurred contemporaneously

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with the underlying medical treatment and are not events which occurred after the first amended

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complaint was filed. Therefore, these allegations are not a proper supplement to the first

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amended complaint under Rule 15(d).

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Plaintiff is really asking that the Court to permit him to amend the first amended

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complaint to cure alleged deficiencies. Such an amendment may be permitted under Fed.R.Civ.P.

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15(a). The Court previously noted, in ruling on defendants’ motion for summary judgment, that

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“Plaintiff does not appear to have alleged compliance with the California [Government] Claims

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Act in the FAC.” (Doc. 93, Order Adopting F&R p. 13 n.3.) Plaintiff now seeks to amend the

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first amended complaint to cure that deficiency.

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Under Rule 15(a), a party may amend the party's pleading once as a matter of course at

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any time before a responsive pleading is served. Otherwise, a party may amend only by leave of

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the court or by written consent of the adverse party, and leave shall be freely given when justice

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so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) is very liberal and leave to amend ‘shall be freely

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given when justice so requires.’ ” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946,
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951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to

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amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3)

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produces an undue delay in the litigation; or (4) is futile.” Id. Futility alone can justify the denial

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of leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see Miller v. Rykoff-

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Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citation omitted) (“[A] proposed amendment is

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futile only if no set of facts can be proved under the amendment ... that would constitute a valid

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and sufficient claim or defense.”).

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D. The Amendment Would be Futile
Here, the amendment to the first amended complaint will be denied as futile. Defendants

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are correct that failure to file a claim within the statute of limitations provided by the Government

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Claims Act is grounds for dismissal, and would render any amendment of Plaintiff’s complaint

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futile. Gov't. Code § 945.6. Courts have consistently found claims filed beyond the six-month

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period to be time-barred, even when the plaintiff never received the written notice. Dowell v.

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Cnty. of Contra Costa, 173 Cal. App. 3d 896, 901 (1985). Amendment here would be futile

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because Plaintiff's state law claims are untimely.

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Plaintiff’s conclusory allegation in the proposed supplemental complaint that “Plaintiff

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filed government claim action and exhausted all the issues to this claim” does not warrant

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amendment. Plaintiff failed to allege any facts that he complied with the California Government

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Claims Act. Indeed, Plaintiff cannot allege that he has done so. The judicially noticed

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documents, provided by the Government Claims Program, show that Plaintiff failed to file a

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timely claim. The Board also rejected Plaintiff’s request to late file a claim. Submitting an

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untimely claim to the Government Claims Program which is rejected because it is untimely does

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not properly exhaust the government claim procedures. Plaintiff cannot allege compliance with

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California’s Government Claims Act, and it would therefore be futile to grant Plaintiff leave to

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file his proposed second amended complaint.

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E. Petition for Relief from the Government Claim Filing

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To the extent that Plaintiff seeks leave from this Court for late filing a government claim

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form, this is not a proper forum to grant such relief. Cal.Govt. Code §946.6 permits a plaintiff to
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petition for relief from claim presentment. A federal court, however, is not the not the proper

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forum for such a petition. See Hernandez v. McClanahan, 996 F. Supp. 975, 978 (N.D. Cal.

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1998) (This court is not the “proper court” to hear Hernandez's section 946.6 petition.); accord

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Oliver v. Ybarra, 2015 WL 2381349, at *3 (E.D. Cal. May 18, 2015), report and recommendation

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adopted, 2015 WL 4112310 (E.D. Cal. July 8, 2015) (Because this Court does not have authority

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to grant relief under § 946(a), any argument regarding excusable neglect is unavailing) and Garza

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v. Alvara, 2016 WL 4921542, at *11 (E.D. Cal. July 8, 2016), report and recommendation

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adopted, 2016 WL 4899676 (E.D. Cal. Sept. 14, 2016) (Because this Court is not the proper court

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for obtaining relief from the Board's determination, the Court has no jurisdiction to hear Plaintiff's

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appeal from the Board's denial of his claim, either as untimely or on the merits). Accordingly, the

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Court denies Plaintiff’s request to file a late claim form as this Court does not have jurisdiction.

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CONCLUSION
For the foregoing reasons, Plaintiff Motion to Supplement and/or Amend is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 5, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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