Silva v. Worth et al

Filing 52

FINDINGS and RECOMMENDATIONS to Strike Plaintiff's First Amended Complaint, signed by Magistrate Judge Sheila K. Oberto on 3/6/19. Objections to F&R Due Within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY SILVA,
Plaintiff,

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v.

FINDINGS AND RECOMMENDATIONS TO
STRIKE PLAINTIFF’S FIRST AMENDED
COMPLAINT
(Docs. 43, 46, 51)

WORTH, et al.,
Defendants.

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Case No. 1:16-cv-01131-AWI-SKO (PC)

TWENTY-ONE (21) DAY DEADLINE

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A.

Background

Plaintiff, Anthony Silva, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. In Plaintiff’s original Complaint, he stated a

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cognizable claim under the Eighth Amendment for failure to protect against J. Worth, on which

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he elected to proceed. (Docs. 24, 27, 28.) On May 15, 2018, Plaintiff filed an unopposed motion

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to file a first amended complaint, which was granted. (Docs. 37, 41, 42.) A screening of

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Plaintiff’s First Amended Complaint (“FAC”) (Doc. 43) revealed that the only substantive

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difference between the allegations on which Plaintiff currently proceeds and the FAC is the

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addition of a negligence claim, Claim II, against three new defendants. Plaintiff’s allegations in

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the FAC, however, fail to show compliance with the California Government Claims Act

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(“CGCA”).

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On January 14, 2019, the Court ordered Plaintiff to show cause why the FAC should not

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be stricken and he be allowed to proceed on the claims previously found cognizable in the

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original Complaint. (Doc. 46, “OSC.”) Plaintiff filed a response stating that it was a mistake for

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him to represent himself in this case, that he receives assistance from various jailhouse lawyers,
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and that he did not know about the CGCA to comply with its requirements. (Doc. 51.) Plaintiff

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requested that an attorney be appointed to assist with holding the alleged offending officers

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accountable. (Id.) As discussed below, the FAC should be stricken from the record and Plaintiff

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should be permitted to proceed on the claims found cognizable in the original Complaint.

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B.

Screening Requirement

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As stated in the OSC, the Court is required to screen complaints brought by prisoners

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seeking relief against a governmental entity or officer or employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally frivolous, malicious, fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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C.

Summary of the First Amended Complaint

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Plaintiff is currently housed at Pleasant Valley State Prison in Coalinga, California, where

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the acts of which he complains occurred. Claim I, (Doc. 43, pp. 3-6), is nearly a verbatim

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duplicate of the allegations set forth in Plaintiff’s original Complaint (Doc. 1, pp. 3-7). Claim I

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pertains to the events that culminated in a riot on the yard where Plaintiff was located; this claim

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was previously found to state a cognizable claim against Defendant Worth. (Doc. 28.) Claim II is

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for negligence against L.C. Lomber, B. Elenes, and A. Cano—who Plaintiff seeks to add as

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defendants (“the New Defendants”). The negligence claim is based on the use of a “40mm” and

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“Launcher-XM 1006, Exact Impact Sponge Rounds” to control the riot. (Id., pp. 4, 7.)

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Plaintiff does not demonstrate compliance with the California Government Claims Act to

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be allowed to proceed on Claim II which is based on California law. Since Plaintiff is unable to

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establish compliance with the CGCA, he should not be allowed to proceed on the FAC and it

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should be stricken from the record. This would result in proceeding only against Defendant

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Worth on Plaintiff’s Eighth Amendment claim that was found cognizable in the original

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Complaint (Doc. 1).

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D.

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State Law Claims
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California Government Claims Act

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Under the California Government Claims Act (CGCA),1 set forth in California

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Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages

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against a public employee or entity unless the plaintiff first presented the claim to the California

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Victim Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board

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acted on the claim, or the time for doing so has expired. “The Tort Claims Act requires that any

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civil complaint for money or damages first be presented to and rejected by the pertinent public

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entity.” Munoz v. California, 33 Cal.App.4th 1767, 1776 (1995). The purpose of this

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requirement is “to provide the public entity sufficient information to enable it to adequately

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investigate claims and to settle them, if appropriate, without the expense of litigation,” City of San

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Jose v. Superior Court, 12 Cal.3d 447, 455 (1974) (citations omitted), and “to confine potential

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governmental liability to rigidly delineated circumstances: immunity is waived only if the various

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requirements of the Act are satisfied,” Nuveen Mun. High Income Opportunity Fund v. City of

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Alameda, Cal., 730 F.3d 1111, 1125 (9th Cir. 2013). Compliance with this “claim presentation

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requirement” constitutes an element of a cause of action for damages against a public entity or

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official. State v. Superior Court (Bodde), 32 Cal.4th 1234, 1244 (2004). Thus, in the state courts,

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“failure to allege facts demonstrating or excusing compliance with the claim presentation

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requirement subjects a claim against a public entity to a demurrer for failure to state a cause of

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action.” Id. at 1239 (fn. omitted).
Federal courts similarly require compliance with the CGCA for pendant state law claims

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that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 702, 704

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(9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th

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Cir.1995). State tort claims included in a federal action filed pursuant to 42 U.S.C. § 1983, may

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proceed only if the claims were first presented to the state in compliance with the claim

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The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior
Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using “Government Claims Act” rather than
“California Tort Claims Act”).

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presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627

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(9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Plaintiff

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must show he complied with the CGCA to be allowed to pursue Claim II in this action since it is

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a cause of action for negligence under California law. In response to the OSC, Plaintiff indicates

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that he was unaware of the CGCA or that compliance with the CGCA was required to proceed on

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Claim II, was not told by anyone about it and, as a result, did not know what actions to undertake

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to comply with the CGCA. As compliance with the CGCA is a jurisdictional requirement,

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Plaintiff’s lack of knowledge is not a proper defense. See Hunter v. Los Angeles County, 262

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Cal.App.2d 820, 822 (1968)

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E.

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Since the only new allegations in the FAC are contained in Claim II for negligence under

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California law and Plaintiff did not comply with the CGCA, the FAC should be stricken and this

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action should proceed on the claims found cognizable in Plaintiff’s original Complaint. As

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compliance with the CGCA is a jurisdictional requirement, the deficiencies pertaining to Claim II

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in the FAC are not capable of being cured through amendment which makes leave to amend

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futile. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012).

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Recommendations

Accordingly, it is HEREBY RECOMMENDED that the First Amended Complaint be

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stricken from the docket and Plaintiff be permitted to proceed on the claims found cognizable in

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the original Complaint.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge=s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,

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1394 (9th Cir. 1991)).

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F.

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Plaintiff requested appointment of counsel in his response to the OSC. (See Doc. 51.)

Appointment of Counsel

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However, Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional circumstances the

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Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success of

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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Here, the Court does not find the required exceptional circumstances. Even assuming

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Plaintiff is not well versed in the law and has made serious allegations which, if proven, would

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entitle him to relief, his case is not exceptional. This Court is faced with similar cases almost

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daily. Further, at this early stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits and based on a review of the record in this case, the

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Court does not find that Plaintiff cannot adequately articulate his claims. Id. For the foregoing

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reasons, Plaintiff’s motion for the appointment of counsel in his response to the OSC, is

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HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

March 6, 2019

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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