Wilson v. Torres

Filing 20

FINDINGS and RECOMMENDATIONS Regarding Defendant's Motion for Summary Judgment for Failure to Exhaust the Administrative Remedies 16 , signed by Magistrate Judge Stanley A. Boone on 10/27/17: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TERRANCE WILSON,

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Plaintiff,

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v.
TORRES,

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Defendant.

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Case No.: 1:17-cv-00375-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST THE ADMINISTRATIVE REMEDIES
[ECF No. 16]

Plaintiff Terrance Wilson is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction;

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therefore, this matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 302.

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Currently before the Court is Defendant’s motion for summary judgment based on Plaintiff’s

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alleged failure to exhaust the administrative remedies and failure to comply with the California Claims

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Act, filed September 14, 2017.

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I.

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RELEVANT BACKGROUND

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This action is proceeding against Defendant Torres for deliberate indifference to a serious
medical need and state negligence.
On July 20, 2017, Defendant filed an answer to the complaint.
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On July 25, 2017, the Court issued the discovery and scheduling order.

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As previously stated, on September 14, 2017, Defendant filed the instant motion for summary

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judgment for failure to exhaust the administrative remedies and failure to comply with the California

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Claims Act. Plaintiff did not file an opposition and the time to do has passed.

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II.

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LEGAL STANDARD

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A.

Statutory Exhaustion Requirement

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The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such

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administrative remedies as are available” before commencing a suit challenging prison conditions.”

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42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016) (“An inmate need

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exhaust only such administrative remedies that are ‘available.’”). Exhaustion is mandatory unless

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unavailable. “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains

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‘available.’ Once that is no longer the case, then there are no ‘remedies … available,’ and the prisoner

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need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis

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in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).

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This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v.

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Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the

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prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and

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unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing

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Porter, 534 U.S. at 524).

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The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising

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and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. “In the rare

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event that a failure to exhaust is clear from the face of the complaint, a defendant may move for

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dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce

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evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only

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if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to

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exhaust. Id.

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B.

Summary Judgment Standard

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Any party may move for summary judgment, and the Court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at

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1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,

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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of

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materials in the record, including but not limited to depositions, documents, declarations, or discovery;

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or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or

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that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.

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56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to

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by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco

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Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609

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F.3d 1011, 1017 (9th Cir. 2010).

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Defendant bears the burden of proof in moving for summary judgment for failure to exhaust,

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Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy, and

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that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendants carry their

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burden, the burden of production shifts to the plaintiff “to come forward with evidence showing that

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there is something in his particular case that made the existing and generally available administrative

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remedies effectively unavailable to him.” Id. “If the undisputed evidence viewed in the light most

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favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment

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under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment should be

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denied, and the district judge rather than a jury should determine the facts.” Id.

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III.

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DISCUSSION
Description of CDCR’s Administrative Remedy Process

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A.

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Plaintiff is a former state prisoner who was at the time of filing the instant complaint in the

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custody of the California Department of Corrections and Rehabilitation (“CDCR”). CDCR has an

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administrative remedy process for inmate grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014).
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Compliance with section 1997e(a) is mandatory and state prisoners are required to exhaust CDCR’s

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administrative remedy process prior to filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 85-

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86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). CDCR’s administrative grievance

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process for non-medical appeals consists of three levels of review: (1) first level formal written

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appeals; (2) second level appeal to the Warden or designees; and (3) third level appeal to the Office of

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Appeals (OOA). Inmates are required to submit appeals on a standardized form (CDCR Form 602),

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attach necessary supporting documentation, and submit the appeal within thirty days of the disputed

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event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b).
B.

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Summary of Allegations Underlying Plaintiff’s Constitutional Claims

On September 23, 2015 or September 30, 2015, Plaintiff reported to his job assignment at the

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facility E kitchen third watch shift. Plaintiff informed Defendant Torres that because of his amputated

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leg he could not lift water buckets over fifteen pounds. Defendant Torres nonetheless ordered Plaintiff

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to repeatedly carry buckets of water weighing over fifteen pounds. While carrying a bucket weighting

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more than fifteen pounds, Plaintiff fell and was rendered unconscious. Defendant Torres failed to

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activate his alarm, thus failing to provide Plaintiff with immediate medical care resulting in further

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injury to Plaintiff. Plaintiff previously discussed a job change with Defendant Torres, but Torres

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failed to document such discussion which resulted in Plaintiff remaining assigned to the kitchen.

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C.

Statement of Undisputed Facts1

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1.

Plaintiff Terrance Wilson (CDCR No. F-00421) is an inmate in the custody of the

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California Department of Corrections and Rehabilitation (“CDCR”). (Compl., ECF No. 1, at 1;2

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Corral Decl. ¶ 3; Voong Decl. ¶ 5.)
2.

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California Substance Abuse and Treatment Facility (“SATF”). (Compl. at 1.)
3.

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Plaintiff filed this action on March 15, 2017, while Plaintiff was incarcerated at the

Plaintiff’s complaint alleges, among other things, the following: On either September

23, 2015, or September 30, 2015, Plaintiff, who is a leg amputee, was working in the Facility E

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Hereinafter referred to as “UDF”.

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Unless otherwise indicated, references herein to page numbers are to the Court’s ECF pagination headers.

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Kitchen when Defendant Torres repeatedly ordered him to pick up and carry buckets of water over

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fifteen pounds. As an amputee, Plaintiff had a medical chrono stating that he could not safely pick up

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or carry anything over fifteen pounds. Plaintiff informed Defendant Torres of this but Defendant

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Torres continued to order Plaintiff to perform actions that were outside his physical limitations. While

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carrying a bucket weighing more than fifteen pounds, Plaintiff fell to the ground in Facility E dining

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hall and was knocked unconscious. Defendant Torres failed to activate his alarm, thus failing to

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provide Plaintiff with immediate medical care and causing further injury to Plaintiff. Plaintiff

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previously discussed a job change with Defendant Torres, but Defendant Torres failed to document

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this, causing Plaintiff to remain assigned to the kitchen. (Compl. at 7.)
4.

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In screening the complaint, the Court found that Plaintiff stated cognizable Eighth

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Amendment deliberate indifference and state negligence claims against Correctional Officer Torres.

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The remaining claims were dismissed. (Screening Order, ECF No. 8, at 1.)
5.

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CDCR had an administrative grievance process for inmates at all times relevant to this

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lawsuit, which allows them to appeal any departmental decision, action, policy, omission, or condition

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that has an adverse material effect on the inmate’s welfare. (Corral Decl. ¶ 3.)
6.

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An inmate appeal is initiated by submitting a CDCR Form 602 (“Form 602”). (Corral

Decl. ¶ 5; Cal. Code Regs. tit. 15, § 3084.2(a).3
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Inmates must follow the procedures set forth in Cal. Code Regs. tit. 15, section 3084.1

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through 3085, which includes describing the problem and action requested in the appeal form. (Corral

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Decl. ¶ 5.)
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To properly exhaust an administrative grievance, an inmate must pursue his appeals

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through all levels of the administrative exhaustion process, unless the inmate is excused from one of

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the levels under Title 15. (Corral Decl. ¶ 6; Cal. Code Regs. tit. 15, §§ 3084.1, 3084.7.)
9.

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A final decision at the third level of review generally exhausts an inmate grievance.

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Rejection or cancellation of an appeal does not exhaust administrative remedies. (Corral Decl. ¶¶ 6, 7;

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Cal. Code Regs. tit. 15, § 3084.1.)

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All citations to Title 15 refer to the version in effect in 2015.

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When an inmate submits an appeal that does not comply with regulations governing the

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appeal process, an appeals coordinator will reject or “screen out” and return the appeal with the reason

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for the rejection and provide instructions to correct the defect, if correction is possible. An appeal may

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be rejected, cancelled, or accepted for the reasons outlined in California Code of Regulations, Title 15,

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sections 3084.6(b) and (c), including expiration of time limits. (Corral Decl. ¶ 7; Cal. Code Regs. tit.

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15, § 3084.6(b), (c).)

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11.

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Decl. ¶ 7.)

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The appeals coordinator’s office does not keep copies of rejected appeal forms. (Corral

Plaintiff knew about and used the administrative grievance process between September

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2015 and March 2017. (Corral Decl. ¶¶ 3, 9, Ex. A; ¶ 10, Ex. B; ¶ 11, Ex. C; ¶ 12, Ex. D; ¶ 13, Ex. E;

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¶ 14, Ex. F; ¶ 15, Ex. G; ¶ 16, Ex. D; ¶ 17, Ex. H; ¶ 18, Ex. I.)

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Between September 2015 and March 2017, Plaintiff submitted seven non-medical

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appeals at SATF, five of which were accepted for review at the first or second level of formal review.

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(Corral Decl. ¶ 9, Ex. A.)

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Appeal Log Nos. SATF-E-15-05336, SATF-E-16-01636, SATF-F-E-16-04402 are

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relevant to Plaintiff’s complaint. (Compl. at 8-9; Corral Decl. ¶ 12, Ex. D; ¶ 13, Ex. E; ¶ 14, Ex. F; ¶

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15, Ex. G, ¶ 16.)

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Plaintiff originally submitted Appeal Log No. SATF-E-15-05336, the appeal relevant to

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this lawsuit, on or around October 13, 2015. The appeal was received and accepted for review on or

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about November 17, 2015. Plaintiff was interviewed on November 28, 2015. The appeal was granted

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in part at the first level of review in that an appeal inquiry was conducted. Plaintiff appealed to the

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second level of formal review where his appeal was cancelled on March 25, 2016, for Plaintiff’s

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failure to timely appeal to the second level. (Compl. at 8-9; Corral Decl. ¶ 12, Ex. D.)

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Plaintiff then filed Appeal Log No. SATF-E-16-01636 where he appealed the

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cancellation of Appeal Log No. SATF-E-15-05336. The appeal was received and accepted for review

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at the second level of formal review on April 7, 2016. After a review of Plaintiff’s appeal, it was

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determined Appeal Log No. SATF-E-15-05336 was incorrectly cancelled. Despite the first level

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decision being mailed on February 9, 2016, Plaintiff did not receive it until March 15, 2016, because
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he transferred institutions. Upon receipt, Plaintiff immediately submitted the appeal to the second

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level on March 15, 2016. Plaintiff’s appeal was granted, allowing Appeal Log SATF-E-15-05336 to

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be processed at the second level of formal review on or about, May 17, 2016. (Compl. at 8-9; Corral

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Decl. ¶ 13, Ex. E.)

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Plaintiff then resent Appeal Log No. SATF-E_15-05336 to the second level of formal

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review where it was received on September 6, 2016. As this was outside the 30-day time limit,

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Plaintiff’s appeal was again cancelled on September 12, 2016. (Compl. at 8-9; Corral Decl. ¶ 14, Ex.

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F.)
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Plaintiff filed Appeal Log No. SATF-E-16-04402 on or about October 26, 2016,

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whereby he challenged the second cancellation of Appeal Log No. SATF-E-15-05336. Plaintiff’s

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appeal bypassed the first level and was accepted at the second level of formal review on October 26,

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2016. After a review of Plaintiff’s appeal, the appeals coordinator confirmed Plaintiff was out to

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Court from June 28, 2016 through August 2, 2016, contributing to the delay in him receiving or filing

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his appeal. Plaintiff’s appeal was granted, allowing Appeal Log No. SATF-E-15-05336 to be

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processed at the second level of review on December 9, 2016. (Compl. at 8-9; Corral Decl. ¶ 15, Ex.

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G.)

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Plaintiff then resent Appeal Log No. SATF-E-15-05336 to the second level of formal

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review where it was received and accepted for review. The appeal was assigned for review on March

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28, 2017. On May 23, 2017, Plaintiff’s appeal was granted at the second level of formal review in that

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a staff inquiry was conducted and all staff are required to ensure the safety and security of the

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institution. The second level decision was mailed to Plaintiff on May 31, 2017. (Compl. at 8-9;

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Corral Decl. ¶ 16, Ex. D.)

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20.

The Office of Appeals (“OOA”) receives, reviews, and maintains all non-medical

inmate grievances at the third and final level of review. (Voong Decl. ¶ 2.)
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Plaintiff has not submitted any appeals to the third level of formal review that were

received and accepted for review. (Voong Decl. ¶ 5, Ex. A.)
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On or about July 31, 2017, Plaintiff submitted Appeal Log No. SATF-E-15-05336,

along with a CDCR form 22 to OOA. The appeal was cancelled and returned to Plaintiff on August 8,
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2017, because Plaintiff failed to timely submit the appeal to the third level of formal review. The

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cancellation letter informed Plaintiff how to appeal the cancellation. (Voong Decl. ¶ 6, Ex. B.)
23.

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Plaintiff was required to file a claim with the Victims Compensation and Government

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Claims Board (Board) in accordance with Government Claims Act for any state claims. (Cal. Gov’t

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Code, § 900 et seq.; Cal. Gov’t Code, §§ 910, 912.4, 912.8, 945.4.)
24.

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Plaintiff did not file a claim with the Board in relation to his September 2015 claims in

this lawsuit. (Earls Decl.; Cal. Gov’t Code, §§ 911.2, 945.4.)
Findings on Defendant’s Motion

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D.

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Defendant argues that: (1) Plaintiff failed to administratively exhaust his Eighth Amendment

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deliberate indifference and state negligence claims against him through the third and final level of

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review before filing suit; (2) Plaintiff was not excused from the PLRA’s exhaustion requirement; and

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(3) Plaintiff failed to comply with the Government Claims Act when he failed to timely file a claim

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with the Victim Compensation Government Claims Board, prohibiting him from pursing any state

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claims.

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1.

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Plaintiff failed to exhaust the relevant appeal, Appeal Log No. SATF-E-15-05336, prior to

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Exhaustion Prior to Filing Suit

filing the instant action as required by the PLRA.

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It is undisputed that Plaintiff originally submitted Appeal Log No. SATF-E-15-05336, on or

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around October 13, 2015. (UDF 15.) The appeal was received and accepted for review on or about

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November 17, 2015. (Id.) Plaintiff was interviewed on November 28, 2015. (Id.) The appeal was

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granted in part at the first level of review in that an appeal inquiry was conducted. (Id.) Plaintiff

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appealed to the second level of review which was cancelled on March 25, 2016, as untimely. (Id.)

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Plaintiff then filed Appeal Log No. SATF-E-16-01636 in which he appealed the cancellation of

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Appeal Log No. SATF-E-15-05336. (UDF 16.) The appeal was received and accepted for review at

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the second level on April 7, 2016. (Id.) It was determined that Appeal Log No. SATF-E-05336 had

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been improperly cancelled at the first level of review. (Id.) Although the first level decision was

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mailed on February 9, 2016, it was determined that Plaintiff did not receive it until March 15, 2016,

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because he transferred institutions. (Id.) Plaintiff thereafter immediately submitted the appeal to the
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second level on March 15, 2016. (Id.) Plaintiff’s appeal was granted, and Appeal Log No. SATF-E-

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15-05336 was processed at the second level of review on or about, May 17, 2016. (Id.)

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Plaintiff then resent Appeal Log No. SATF-E-15-05336 to the second level of review which

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was received on September 6, 2016. (UDF 17.) The appeal was cancelled on September 12, 2016, as

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untimely because it was beyond the 30-day time limit.

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Plaintiff filed Appeal Log No. SATF-E-16-04402 on or about October 26, 2016, which

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challenged the second cancellation of Appeal Log No. SATF-E-05336. (UDF 18.) The appeal

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bypassed the first level of review and was accepted at the second level on October 26, 2016. (Id.)

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After review of the appeal, the appeals coordinator confirmed Plaintiff was out to Court from June 28,

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2016 through August 2, 2016, contributing to the delay in him receiving or filing his appeal. (Id.)

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Plaintiff’s appeal was thereafter granted, which allowed Appeal Log No. SATF-E-15-05336 to be

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processed at the second level of review on December 9, 2016. (Id.)

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Plaintiff resent Appeal Log No. SATF-E-15-05336 to the second level of review which was

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received and accepted for review. (UDF 19.) The appeal was assigned for review on March 28, 2017.

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(Id.) On May 23, 2017, Plaintiff’s appeal was granted at the second level in that a staff inquiry was

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conducted and all staff are required to ensure the safety and security of the institution. (Id.) The

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second level decision was mailed to Plaintiff on May 31, 2017. (Id.) On or about July 31, 2017,

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Plaintiff submitted Appeal Log No. SATF-E-15-05336, and a CDCR Form 22 to the third level of

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review. (UDF 22.) The appeal was cancelled and returned to Plaintiff on August 8, 2017, as

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untimely. (Id.) The cancellation letter specifically informed Plaintiff how to appeal the cancellation.

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(Id.) Plaintiff did not exhaust this appeal through the third and final level of review. In addition,

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Plaintiff filed this action over two months before the institution mailed the second level decision.

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(UDF 2, 19.)

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Even if the inmate fully exhausts the administrative remedies during the pendency of suit,

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dismissal, without prejudice, is still warranted because he failed to exhaust his administrative remedies

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prior to filing. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002 (an inmate must exhaust

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the available administrative remedies before he filed suit, even if the inmate fully exhausts while the

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suit is pending); Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (same).
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2.

Excuse From Exhaustion Requirement

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“An inmate is required to exhaust only available remedies.” Albino, 747 F.3d at 1171 (citing

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Booth v. Churner, 532 U.S. 731, 736 (2001)). “To be available, a remedy must be available ‘as a

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practical matter’; it must be ‘capable of use; at hand.’” Albino, 747 F.3d at 1171 (quoting Brown v.

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Valoff, 422 F.3d 926, 937 (9th Cir. 2005)). In Ross v. Blake, the Court set forth the following three

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examples of when the administrative remedies are not available: (1) the “administrative procedure …

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operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to

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aggrieved inmates;” (2) the “administrative scheme … [is] so opaque that it becomes, practically

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speaking, incapable of use … to that no ordinary prisoner can make sense of what it demands; and (3)

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“prison administrators thwart inmates from taking advantage of a grievance process through

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machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2006)

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(citations omitted). In addition, when an inmate’s administrative grievance is improperly rejected on

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procedural grounds, exhaustion may be excused as effectively unavailable. Sapp v. Kimbrell, 623

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F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224-1226 (9th Cir. 2010)

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(warden’s mistake rendered prisoner’s administrative remedies “effectively unavailable”); Brown v.

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Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where appeal

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granted at second level and no further relief was available).

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In this instance, Plaintiff filed Appeal Log No. SATF-E-15-05336, regarding the allegations in

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his complaint. Although the appeal was cancelled twice as untimely, the appeals coordinator

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subsequently processed the appeal after Plaintiff challenged the cancellations finding that Plaintiff

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presented valid excuses for his untimeliness, i.e. delay in the mail due to transfer and out-to-court

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status. Thus, the appeals were not improperly cancelled as untimely, rather, Plaintiff submitted a valid

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excuse for such untimeliness. However, Plaintiff subsequently failed to timely submit his appeal to

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the third level of review prior to filing the instant action. In addition, Plaintiff filed multiple appeals

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during the relevant time frame. (UDF 12, 13.) Although Plaintiff failed to fully exhaust the appeals,

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his repeated efforts at attempting to exhaust demonstrate that he was not thwarted by prison staff, and

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Plaintiff offers no evidence to find to the contrary. Plaintiff has failed to meet his burden in

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demonstrating that there is something in his particular case that made the existing and generally
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available administrative remedies effectively unavailable to him. Albino, 747 F.3d at 1172.

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Accordingly, Defendant Torres’s motion for summary judgment should be granted and the instant

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action should be dismissed, without prejudice, for failure to exhaust the administrative remedies.

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3.

California Government Claims Act

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The Government Claims Act requires that a tort claim against a public entity or its employees

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be presented to the California Victim Compensation and Government Claims Board no more than six

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months after the cause of action accrues.1 Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950, 950.2

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(West 2011). Presentation of a written claim, and action on or rejection of the claim are conditions

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precedent to suit. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal. 2007); State v.

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Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Mabe v. San Bernardino

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Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); Mangold v. California Pub.

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Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public employee, a

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plaintiff must allege compliance with the Government Claims Act. Shirk, 42 Cal.4th at 209; Bodde,

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32 Cal.4th at 1239; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d

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621, 627 (9th Cir. 1988).
Although in his complaint, Plaintiff indicates that he complied with the California Government

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Claims Act by filing an application to the State Board of Control, Defendant has submitted evidence

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that no such claim was filed or reviewed. More specifically, Defendant submits the declaration of

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Earls, Senior Legal Analyst at the Government Claims Unit who declares that after a diligent search of

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the records maintained by the Government Claims Program he was unable to locate any claims that

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were filed or presented by Plaintiff, Terrence Willie Wilson regarding an injury in September 2015.

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(Earls Decl., ECF No. 16-6.) Here, the evidence submitted by Defendant demonstrates that Plaintiff

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has failed to comply with the California Government Claims Act nor does Plaintiff provide a

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justification to excuse his noncompliance. Accordingly, Plaintiff’s state law claim of negligence must

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be dismissed.

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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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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

Defendant Torres’s motion for summary judgment be granted; and

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2.

The instant action be dismissed, without prejudice, for failure to exhaust the

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administrative remedies and failure to comply with the California Government Claims Act.
These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with these Findings and Recommendations, the parties may file written objections with

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the 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 time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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October 27, 2017
UNITED STATES MAGISTRATE JUDGE

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