Alarcon v. Davey et al

Filing 18

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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 LOUIS A. ALARCON, 9 Plaintiff, 10 v. 11 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) 12 Defendants. 13 14 Plaintiff, Louis A. Alarcon, is a state prisoner proceeding pro se and in forma pauperis in 15 this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States 16 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 17 On March 14, 2018, the Magistrate Judge filed a Findings and Recommendation which 18 was served on Plaintiff and contained notice that objections were due within twenty-one days. 19 (Doc. 16.) Plaintiff filed his objections on April 6, 2018. While Plaintiff does not object to 20 dismissal of Warden Dave Davey and all claims against him from this action, he challenges the 21 recommended dismissal of his state law claims. (Doc. 17.) 22 Plaintiff argues that the Victim Compensation and Government Claims Board should not 23 have found the claim he filed with them untimely. However, as correctly stated in the F&R, to be 24 timely, a claim must be presented to the Board “not later than six months after the accrual of the 25 cause of action.” Cal. Govt.Code § 911.2. Thereafter, “any suit brought against a public entity” 26 must be commenced no more than six months after the public entity denies the claim. Cal. Gov. 27 Code, § 945.6, subd. (a)(1). State tort claims included in a federal action, filed pursuant to 42 28 U.S.C. § 1983, may proceed only if the claims were first presented to the state in compliance with 1 1 the applicable requirements. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 2 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). 3 California’s Government Claims Act (“CGCA”), set forth in California Government Code 4 sections 810 et seq., provides that, if a claimant misses a deadline, he or she may file a written 5 application for leave to file a late claim, within a year after the accrual of the cause of action. Cal. 6 Govt. Code § 911.4. If the Board denies the application, as happened here (see Doc. 17, p. 17), 7 no court action may be brought on the claim unless the claimant first files a petition with the 8 superior court requesting relief from the claim presentation requirement and obtains a court order 9 granting such relief. Id., §§ 911.8, 946.6(a). Plaintiff’s failure to obtain such relief bars his suit 10 11 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 12 de novo review of this case. Having carefully reviewed the entire file, the Court finds the 13 Findings and Recommendations to be supported by the record and by proper analysis. 14 15 Accordingly, IT IS HEREBY ORDERED that: 1. 16 17 The Findings and Recommendations, that issued on March 14, 2018, is adopted in full; and 2. 18 Plaintiff may proceed on the following cognizable Eighth Amendment claims as stated in the First Amended Complaint: 19 a. 20 Against C/O Caldwell, Lt. Gonzales, C/O H. Flores, and C/O S. Longoria for use of excessive force; 21 b. Against C/Os L. Cahlander, R. Roque, K. Cowart, T. Harris, A. Fernandez, 22 R. Adame, A. Casas, M. Garin, D. Nora, and A. Rocha for failing to 23 intervene and protect Plaintiff; and 24 c. Against C/Os Longoria, R. Guerra, Lt. J. Gonzales, LVN S. Branson, Sgt. 25 Magallanes and C/Os A. Casas, R. Roque, and D. Nora for deliberate 26 indifference to Plaintiff’s serious medical needs. 27 28 3. Warden Dave Davey, all claims against him, and all of Plaintiff’s claims under California law are dismissed with prejudice. 2 1 4. The action is referred to the Magistrate Judge for service of process. 2 3 4 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ April 11, 2018 UNITED STATES CHIEF DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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