Gann v. Kokor et al
Filing
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ORDER ADOPTING 25 Findings and Recommendations Regarding Dismissal of Certain Claims and Defendants; ORDER DIRECTING Plaintiff to Submit Information Identifying Defendants Doe 1, Doe 2, and Doe 3, signed by District Judge Anthony W. Ishii on 7/1/2020. Notice due within ninety (90) days. (Rivera, O)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NATHANIEL MARCUS GANN,
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Plaintiff,
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v.
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Case No. 1:18-cv-00084-AWI-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF CERTAIN CLAIMS AND
DEFENDANTS
KOKOR, et al.,
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(ECF No. 25)
Defendants.
ORDER DIRECTING PLAINTIFF TO
SUBMIT INFORMATION IDENTIFYING
DEFENDANTS DOE 1, DOE 2, AND DOE 3
NINETY (90) DAY DEADLINE
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Plaintiff Nathaniel Marcus Gann (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred
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to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On July 15, 2019, the Magistrate Judge issued findings that Plaintiff’s first amended
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complaint stated cognizable claims against Defendants Doe 1 and Doe 3 for deliberate
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indifference to serious medical needs in violation of the Eighth Amendment, but failed to state
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any other cognizable claims for relief against the remaining defendants. (ECF No. 25.) The
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Magistrate Judge recommended that this action proceed on Plaintiff’s first amended complaint
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against Defendants Doe 1 and Doe 3 for deliberate indifference to serious medical needs and that
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all other claims and defendants, including any claim for injunctive relief, be dismissed from this
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action based on Plaintiff’s failure to state claims upon which relief may be granted. Those
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findings and recommendations were served on Plaintiff and contained notice that any objections
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thereto were to be filed within fourteen (14) days after service. (Id. at 18.) Plaintiff timely filed
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objections on July 31, 2019. (ECF No. 26.)
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In his objections, Plaintiff argues that the Magistrate Judge erred in overly simplifying his
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factual allegations, and Plaintiff claims that he can include additional detailed factual allegations
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as well as documentation and declaration in further amendments. Plaintiff next contends that all
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of the claims alleged in his complaint are appropriate for joinder, as they all relate to treatment (or
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lack of treatment) for the same medical condition, and similarly argues that injunctive relief is
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appropriate regardless of what institution he is housed at because he will always require treatment
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for this medical condition. Plaintiff objects to the dismissal of each named Defendant and alleges
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that each was deliberately indifferent or negligent in his medical care. Plaintiff further contends
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that the state of California waived its Eleventh Amendment immunity by passing the CTCA
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[California Tort Claims Act], and that he filed a Government Claim allowing him to seek
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damages against the relevant California government agency, here CDCR or CSATF, and notes
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that he originally attempted to file this action in state court before it was removed to federal court.
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Finally, Plaintiff objects to the omission of Defendant Doe 2.
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With respect to Defendant Doe 2, the Court agrees that while the findings and
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recommendations state that Plaintiff has stated a cognizable claim against Defendants Does 1–3,
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(ECF No. 25, p. 17), the Magistrate Judge inadvertently omitted Defendant Doe 2 from the
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recommendations, (id. at 18). Plaintiff will be permitted to proceed against Defendants Doe 1,
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Doe 2, and Doe 3.
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The Court finds Plaintiff’s objections as to the oversimplification of his factual allegations
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in the findings and recommendations, the joinder of claims and defendants, and the dismissal of
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the individual named defendants, unpersuasive. The Magistrate Judge was not required to set
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forth, verbatim, all of Plaintiff’s factual allegations, and the undersigned does not find that the
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findings and recommendations inappropriately ignored or discounted any of the relevant factual
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allegations. In addition, the mere fact that all of Plaintiff’s claims relate to his medical care
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during his incarceration at one institution is not sufficient to demonstrate that all of the claims
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arise out of the same “transaction or occurrence, or series of transactions or occurrences.”
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Finally, as discussed at length in the findings and recommendations, Plaintiff’s mere
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disagreement with the treatment provided by the various Defendants, or a difference of opinion
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between Plaintiff’s medical providers, combined with Plaintiff’s conclusory allegations that
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Defendants’ actions were medically acceptable, is not sufficient to support a deliberate
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indifference claim.
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Plaintiff states in his objections that he “filed a Government Claim allowing for the
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seeking of damages against the relevant California Government Agency (CDCR/CSATF),” (ECF
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No. 26, p. 2), and in his first amended complaint alleges “Gov Claim (#16008857) filed on
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11/6/16,” (ECF No. 24, p. 2). However, as Plaintiff was informed by the Court’s prior screening
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order, it is Plaintiff’s obligation to allege compliance with the California Government Claims Act
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(CGCA), which includes presentation of the tort claim to the California Victim Compensation
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and Government Claims Board no more than six months after the cause of action accrues. (ECF
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No. 21, pp. 7–8.) Plaintiff’s allegations in the first amended complaint span a period of time
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beginning in January 2015, and his claims against Defendants Doe 1, Doe 2, and Doe 3 occurred
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on December 20, 2015, December 22, 2015, and December 23, 2015, respectively. As Plaintiff’s
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claims against Defendants Doe 1, Doe 2, and Doe 3 are the only cognizable claims proceeding in
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this action, it appears that the relevant causes of action should have been presented to the
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Government Claims Board no more than six months after December 2015. The only information
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provided by Plaintiff demonstrates that he filed a government claim approximately one year after
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the causes of action accrued, and includes no explanation for his failure to timely file his
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government claim. Plaintiff also has included no allegations or documentation demonstrating that
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the claim filed included the specific causes of action relating to Defendants Doe 1, Doe 2, or Doe
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3. Therefore, the undersigned finds that Plaintiff has not sufficiently alleged compliance with the
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CGCA, and should not be permitted to pursue claims for violation of California law in this action.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s
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objections, the Court finds the findings and recommendations to be supported by the record and
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by proper analysis, except as discussed above.
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Accordingly, IT IS HEREBY ORDERED as follows:
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1. The findings and recommendations issued on July 15, 2019, (ECF. No. 25), are
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adopted in full;
2. This action shall proceed on Plaintiff’s first amended complaint, filed August 30,
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2018, (ECF No. 24), against Defendants Doe 1, Doe 2, and Doe 3 for deliberate
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indifference to serious medical needs in violation of the Eighth Amendment;
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3. All other claims and defendants, including any claim for injunctive relief, are
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dismissed from this action based on Plaintiff’s failure to state claims upon which relief
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may be granted;
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4. Within ninety (90) days from the date of service of this order, Plaintiff shall
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provide the Court with written notice identifying Defendants Doe 1, Doe 2, and
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Doe 3 with enough information to locate the defendants for service of process;
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and
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5. This action is referred back to the Magistrate Judge for proceedings consistent with
this order.
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IT IS SO ORDERED.
Dated: July 1, 2020
SENIOR DISTRICT JUDGE
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