Alarcon v. Davey et al
Filing
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ORDER Adopting 16 FINDINGS AND RECOMMENDATION DISMISSING Defendant Warden Davey and all State Law Claims signed by Chief Judge Lawrence J. O'Neill on 4/11/2018. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LOUIS A. ALARCON,
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Plaintiff,
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v.
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Case No. 1:16-cv-01461-LJO-JLT (PC)
ORDER ADOPTING FINDINGS
AND RECOMMENDATION DISMISSING
DEFENDANT WARDEN DAVEY AND ALL
STATE LAW CLAIMS
DAVEY, et al.,
(Doc. 16)
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Defendants.
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Plaintiff, Louis A. Alarcon, is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On March 14, 2018, the Magistrate Judge filed a Findings and Recommendation which
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was served on Plaintiff and contained notice that objections were due within twenty-one days.
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(Doc. 16.) Plaintiff filed his objections on April 6, 2018. While Plaintiff does not object to
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dismissal of Warden Dave Davey and all claims against him from this action, he challenges the
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recommended dismissal of his state law claims. (Doc. 17.)
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Plaintiff argues that the Victim Compensation and Government Claims Board should not
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have found the claim he filed with them untimely. However, as correctly stated in the F&R, to be
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timely, a claim must be presented to the Board “not later than six months after the accrual of the
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cause of action.” Cal. Govt.Code § 911.2. Thereafter, “any suit brought against a public entity”
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must be commenced no more than six months after the public entity denies the claim. Cal. Gov.
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Code, § 945.6, subd. (a)(1). 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 applicable requirements. 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).
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California’s Government Claims Act (“CGCA”), set forth in California Government Code
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sections 810 et seq., provides that, if a claimant misses a deadline, he or she may file a written
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application for leave to file a late claim, within a year after the accrual of the cause of action. Cal.
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Govt. Code § 911.4. If the Board denies the application, as happened here (see Doc. 17, p. 17),
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no court action may be brought on the claim unless the claimant first files a petition with the
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superior court requesting relief from the claim presentation requirement and obtains a court order
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granting such relief. Id., §§ 911.8, 946.6(a). Plaintiff’s failure to obtain such relief bars his suit
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on his claims under state law in this action.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the
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Findings 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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The Findings and Recommendations, that issued on March 14, 2018, is adopted in
full; and
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Plaintiff may proceed on the following cognizable Eighth Amendment claims as
stated in the First Amended Complaint:
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a.
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Against C/O Caldwell, Lt. Gonzales, C/O H. Flores, and C/O S. Longoria
for use of excessive force;
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b.
Against C/Os L. Cahlander, R. Roque, K. Cowart, T. Harris, A. Fernandez,
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R. Adame, A. Casas, M. Garin, D. Nora, and A. Rocha for failing to
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intervene and protect Plaintiff; and
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c.
Against C/Os Longoria, R. Guerra, Lt. J. Gonzales, LVN S. Branson, Sgt.
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Magallanes and C/Os A. Casas, R. Roque, and D. Nora for deliberate
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indifference to Plaintiff’s serious medical needs.
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3.
Warden Dave Davey, all claims against him, and all of Plaintiff’s claims under
California law are dismissed with prejudice.
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4.
The action is referred to the Magistrate Judge for service of process.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
April 11, 2018
UNITED STATES CHIEF DISTRICT JUDGE
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