Hackett v. Fisher et al

Filing 28

FINDINGS and RECOMMENDATIONS Regarding Defendants' 22 MOTION to DISMISS signed by Magistrate Judge Barbara A. McAuliffe on 7/24/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN HACKETT,

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Case No. 1:15-cv-00670-DAD-BAM (PC)

Plaintiff,

FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION TO
DISMISS

v.
FISHER, et al.

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(ECF No. 22)
Defendants.

FOURTEEN (14) DAY DEADLINE

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Findings and Recommendations

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I.

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Plaintiff Steven Hackett (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action under 42 U.S.C. § 1983. On September 21, 2016, the Court found that Plaintiff’s

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second amended complaint stated cognizable claims against Defendant Dr. Toor for deliberate

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indifference in violation of the Eighth Amendment regarding conduct in May-June 2016 and state

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law negligence and against Defendants Stolfus and Sisodia for state law negligence. (ECF No.

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15.) The Court dismissed Defendant Stolfus from this action on December 20, 2016, (ECF No.

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20), and this action currently proceeds only against Defendants Toor and Sisodia.

Introduction

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On January 9, 2017, Defendants Toor and Sisodia filed a motion to dismiss under Federal

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Rule of Civil Procedure 12(b)(6). By their motion, Defendants seek to dismiss Plaintiff’s state

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law negligence claim against Defendant Toor and dismiss Defendant Sisodia from this action on
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the ground that Plaintiff failed to plead compliance with the California Government Claims Act.

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(ECF No. 22.) On February 3, 2017, Plaintiff opposed the motion, and Defendants replied on

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February 10, 2017. (ECF Nos. 23, 24.) The motion is deemed submitted. Local Rule 230(l).
For the reasons discussed below, the Court recommends that Defendants’ motion to

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dismiss be granted.

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II.

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Motion to Dismiss
A. Legal Standard

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A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and

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dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts

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alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42

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(9th Cir. 2011) (quotation marks and citations omitted). To survive a motion to dismiss, a

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complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible

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on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242;

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-

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pled factual allegations as true and draw all reasonable inferences in favor of the non-moving

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party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown,

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504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996-97 (9th

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Cir. 2006); Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Further,

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prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010) (citations omitted).

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B. California Government Claims Act

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The California Government Claims Act (“GCA”)1 requires that a party seeking to recover

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money damages from a public entity or its employees must present a claim to the California

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The Government Claims Act was formerly known as the California Tort Claims Act. See
City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42, 68 Cal.Rptr.3d 295, 171 P.3d 20
(2007) (adopting practice of referring to California Government Code §§ 810 et seq. as the
Government Claims Act).
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Victim Compensation and Government Claims Board (“Board”) before filing suit in court,

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generally no later than six months after the cause of action accrues. See Cal. Gov’t Code §§

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905.2, 910, 911.2, 945.4, 950-950.2. Timely claim presentation is not merely a procedural

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requirement of the GCA, but is an element of a plaintiff’s cause of action. Shirk v. Vista Unified

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Sch. Dist., 42 Cal.4th 201, 209, 64 Cal.Rptr.3d 210, 164 P.3d 630 (2007); State v. Superior Court

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(Bodde), 32 Cal.4th 1234, 1243, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, when a plaintiff

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asserts a claim subject to the GCA, he must affirmatively allege compliance with the claim

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presentation procedure, or circumstances excusing such compliance, in his complaint. Id. This

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requirement applies to state law tort claims included in a federal action filed pursuant to 42

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U.S.C. § 1983. Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988).
C. Analysis

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Plaintiff alleges a state law claim of negligence against Defendant Toor and Sisodia. In

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order to proceed on this claim, Plaintiff must affirmatively allege either compliance with the

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claim presentation requirement of the GCA or circumstances excusing such compliance. Shirk,

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42 Cal.4th at 209.

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In their moving papers, Defendants contend that Plaintiff failed to allege facts

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demonstrating that a claim was timely presented to the GCA or that his compliance was excused.

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(ECF No. 22-1 at p. 3.) By his opposition, Plaintiff appears to concede that the operative

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complaint does not include allegations of compliance with the GCA or circumstances excusing

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compliance. Instead, Plaintiff reasserts his allegations regarding the actions or omissions of

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Defendants Toor and Sisodia related to Plaintiff’s medical care. (ECF No. 23 at pp. 2-3.) These

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allegations are not sufficient to demonstrate compliance with the GCA, nor are Plaintiff’s

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assertions that he utilized the administrative procedures available to him through the California

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Department of Corrections and Rehabilitation. (ECF No. 23 at p. 3.)

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Nevertheless, Plaintiff also asserts that he has “complied with all administrative

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requirements up to and including criteria as set forth in Government Code Section 945.4 (Claims

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presentation requirement).” (ECF No. 23 at p. 5.) Plaintiff further asserts that his “Board claim

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was received on March 16, 2015 with the Board decision being rendered on April 7, 2015.” (ECF
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No. 23 at p. 7.) Plaintiff does not provide a copy of his claim, and it is not entirely clear if he is

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referring to submission of a claim to the Victim Compensation and Government Claims Board.

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Assuming, without deciding, that Plaintiff submitted a claim to the GCA, the Court finds

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that this 2015 claim does not satisfy the claim presentation procedure. According the operative

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claims of the second amended complaint, Plaintiff’s allegations involving Defendants Toor and

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Sisodia concerned events occurring after he submitted an inmate grievance, Appeal Log # VSP

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HC 16006222, on May 16, 2016. (ECF No. 14 at p. 13.) Specifically, Plaintiff alleged that

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Defendant Sisodia interviewed him on May 31, 2016, in connection with the appeal, and that

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Defendant Toor granted the appeal on June 16, 2016. (ECF No. 14 at pp. 13-14.) Because the

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events associated with and alleged against Defendants Toor and Sisodia occurred after Plaintiff’s

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purported submission of a claim to the Board in March 2015, Plaintiff has failed to demonstrate

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compliance with the claim presentation requirement of the GCA. He also has not alleged any

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circumstances excusing such compliance.

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III.

Conclusion and Recommendation

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As Plaintiff has failed to affirmatively allege either compliance with the claim

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presentation requirement of the GCA or circumstances excusing his compliance, the Court finds

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that Plaintiff’s state law negligence claim against Defendant Toor should be dismissed and that

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Defendant Sisodia should be dismissed from this action.

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Accordingly, IT IS HEREBY RECOMMENDED as follows:

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1. Defendants’ motion to dismiss be GRANTED based on Plaintiff’s failure to comply

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with the claim presentation requirement of the California Government Claims Act;

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2. Plaintiff’s state law negligence claim against Defendant Toor be dismissed;

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3. Defendant Sisodia be dismissed from this action; and

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4. This action proceeds only against Defendant Dr. Toor for deliberate indifference in

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violation of the Eighth Amendment.
These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, under 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being

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served with these Findings and Recommendations, the parties may file written objections with the
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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified

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time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 24, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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