(PC) Jordan v. Norris, et al.

Filing 38

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion to Dismiss his state law claims be granted 37 signed by Magistrate Judge Erica P. Grosjean on 4/1/2021. Referred to Judge NONE; Objections to F&R's due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 LAMAR JORDAN, Plaintiff, 12 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S MOTION TO DISMISS HIS STATE LAW CLAIMS BE GRANTED v. 13 14 Case No. 1:20-cv-00467-NONE-EPG (PC) O. NORRIS, et al., Defendants. (ECF No. 37) 15 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 Lamar Jordan (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 18 19 this civil rights action. This case is proceeding “on Plaintiff’s claims against defendants 20 Napoles and Anunciacion for deliberate indifference to serious medical needs in violation of 21 the Eighth Amendment and his claims against defendants Napoles, Norris, Anunciacion, and 22 State of California for medical negligence.” (ECF No. 12, p. 2). On March 31, 2021, Plaintiff filed a notice to dismiss his state law claims (ECF No. 37), 23 24 which the Court construes as a motion. Plaintiff states that, after conferring with defense counsel, he recently discovered that he 25 26 did not in fact file a claim with the Government Claims Board. Accordingly, Plaintiff asks the 27 Court to dismiss his state law claims. 28 \\\ 1 1 California’s Government Claims Act1 requires that a claim against the State2 or its 2 employees “relating to a cause of action for death or for injury to person” be presented to the 3 California Victim Compensation and Government Claims Board, formerly known as the State 4 Board of Control, no more than six months after the cause of action accrues. Cal. Gov’t Code 5 §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a written claim, and action on or 6 rejection of the claim, are conditions precedent to suit. State v. Superior Court of Kings 7 County (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004); Mangold v. California Pub. Utils. 8 Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public entity or 9 employee, a plaintiff must allege compliance with the Government Claims Act. Bodde, 32 10 Cal.4th at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 839 11 F.2d 621, 627 (9th Cir. 1988). 12 As Plaintiff has stated that he did not comply with California’s Government Claims Act, 13 the Court will recommend that Plaintiff’s motion be granted and that his state law claims be 14 dismissed with prejudice for failure to state a claim. See, e.g., Richardson-Bass v. Fresno City 15 Coll., 2021 WL 242801, at *6-7 (E.D. Cal. Jan. 25, 2021) (dismissing state law claims with 16 prejudice for failure to comply with the Government Claims Act). 17 Accordingly, the Court HEREBY RECOMMENDS that: 18 1. Plaintiff’s motion to dismiss his state law claims be granted; 19 2. Plaintiff’s claims against defendants Napoles, Norris, Anunciacion, and State of 20 California for medical negligence be dismissed with prejudice for failure to 21 state a claim; and 22 3. The Clerk of Court be directed to reflect the dismissal of defendants Norris and State of California on the Court’s docket. 23 24 These findings and recommendations are submitted to the United States district judge 25 26 1 27 28 This 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). 2 “‘State’ means the State and any office, officer, department, division, bureau, board, commission or agency of the State claims against which are paid by warrants drawn by the Controller.” Cal. Gov’t Code § 900.6. 2 1 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 2 (14) days after being served with these findings and recommendations, any party may file 3 written objections with the court. Such a document should be captioned “Objections to 4 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 5 served and filed within seven (7) days after service of the objections. The parties are advised 6 that failure to file objections within the specified time may result in the waiver of rights on 7 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 8 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 11 IT IS SO ORDERED. Dated: April 1, 2021 /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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