McGill v. Traquina

Filing 23

ORDER granting 19 Motion to Dismiss signed by District Judge David O. Carter on 10/19/11. CASE CLOSED(Matson, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. ED CV 08-2339 DOC

Date: October 18, 2011

Title: BRUCE MCGILL v. ALVAROC TRAQUINA, MD.
DOCKET ENTRY
[I hereby certify that this document was served by first class mail or G overnment messenger service, postage prepaid, to all counsel (or parties) at their respective
most recent address of record in this action on this date.]
D ate:____________ D eputy Clerk: ___________________________________

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT

NONE PRESENT

PROCEEDING (IN CHAMBERS): DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM
Before the Court is Defendant Alvaroc Traquina, MD., (“Traquina”)’s Motion to Dismiss
and Strike pursuant to Federal Rules 12(b)(6) (Docket 19). The Court finds this matter appropriate for
decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. The Court has considered the
moving, opposing, and replying papers, and hereby GRANTS Traquina’s Motion.
I.

Factual Background

Bruce McGill (“Plaintiff”) is a 44 year-old inmate of the California State Prison at Solano
(“CSP Solano”). Complaint ¶¶ 4, 7. Plaintiff alleges that, in 2006, he was diagnosed with glaucoma
while incarcerated at CSP Solano. Id. ¶ 7. As a result of this diagnosis, Plaintiff claims that his
physicians have written prescriptions for various medications including Cosopt, Inderal LA, and
Latanoprost. Id. ¶ 8.
Alvaroc Traquina (“Defendant”) is the Chief Medical Officer and Health Care Manager
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of CSP Solano. Id. ¶ 5. By virtue of this position, Plaintiff avers that Defendant is an employee of the
State of California. Id.
A.

Factual Background for Plaintiff’s Eighth Amendment Claim

Beginning around April 2008, Defendant allegedly ceased distributing or inconsistently
distributed Plaintiff’s daily glaucoma medications. Id. ¶ 9. On April 29, 2008, Plaintiff asserts that he
filed an emergency appeal–referred to as a “602 appeal”–because he had not received his glaucoma
medication for 30 days. Id. ¶ 10. In this 602 appeal, Plaintiff describes the failed efforts of three
different nurses who tried to get the prescriptions filled. Id. Plaintiff alleges that, on May 5, 2008, his
602 appeal was granted. Id. ¶ 11. Despite this action, Plaintiff claims that he still did not receive all of
his glaucoma medication. Id. Counsel for Plaintiff followed up with the warden of CSP Solano on
June 16, 2008, yet no further action was taken. Id. ¶ 12.
On May 21, 2008, Plaintiff states that he submitted his second-level 602 appeal. Id. ¶ 13.
Again, on July 3, 2008, Plaintiff’s appeal was granted and Defendant allegedly stated he would redistribute all of Plaintiff’s medications. Id. Plaintiff, however, avers that he did not receive these
prescriptions on July 3, 2008, although he did receive them at some later date. Id. ¶ 14. Additionally,
Plaintiff argues that after issuing the second-level appeal response, Defendant canceled all of Plaintiff’s
pending doctor’s appointments including, but not limited to, those scheduled for treating eye pain, loss
of vision, and headaches. Id. ¶ 17. In a final attempt to procure his medications, Plaintiff alleges that
on July 12, 2008, he submitted a 602 appeal to the Directors level. Id. ¶ 15. At the time the instant
action was filed, no decision had been issued on this appeal. Id.
Throughout the approximately four months that Plaintiff had not received his glaucoma
medication, Plaintiff asserts that he suffered severe headaches, eye pain, and marked loss of vision in
his left eye. Id. ¶ 16. As a result of these injuries, Plaintiff seeks in his prayer for relief: (1) general
damages to compensate Plaintiff for injuries he suffered and continues to suffer from; (2) punitive
damages; (3) attorney’s fees; (4) costs of suit herein; and (5) such other and further relief as this Court
may deem proper.
B.

Procedural Background for Plaintiff’s Potential State Tort Claims

Plaintiff filed the instant action on October 2, 2008. Compl. 6. Nearly four months later,
on January 27, 2009, Plaintiff filed a claim for his injuries and damages with the Victim Compensation
and Government Claims Board (“VCGCB”). Opposition to Motion to Dismiss (“Opp’n”) 7. On
February 10, 2009, while this action was still pending, the VCGCB informed Plaintiff that the court
system would be the appropriate means for resolution of his claims. Id.
II.

Legal Standard

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A.

Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a
plaintiff’s allegations fail to state a claim upon which relief can be granted. Dismissal for failure to
state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove “no set of
facts” in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
561 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In order for a complaint to
survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal,
129 S. Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough
facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the
alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the
defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not
to be accepted as true and do not establish a plausible claim for relief. Id. at 1950. Determining
whether a complaint states a plausible claim for relief will be a context-specific task requiring the court
to draw on its judicial experience and common sense. Id.
In evaluating a 12(b)(6) motion, review is “limited to the contents of the
complaint.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, exhibits
attached to the complaint, as well as matters of public record, may be considered in determining
whether dismissal was proper without converting the motion to one for summary judgment. Parks
School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Further, a court may
consider documents “on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the
document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th
Cir. 2006). “The Court may treat such a document as ‘part of the complaint, and thus may assume that
its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).’” Id. (quoting United
States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).
Dismissal without leave to amend is appropriate only when the Court is satisfied
that the deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey,
353 F.3d 750, 758 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Rule 15 of the Federal Rules of Civil Procedure mandates
that leave to amend be freely given whenever justice requires. This policy is applied with
“extraordinary liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.
1990).
III.

Discussion
A.

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Plaintiff’s Federal Claims Are Dismissed Because Plaintiff Failed to
Exhaust His Administrative Remedies, as Required by the PLRA

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Defendant first moves to dismiss Plaintiff’s Eighth and Fourteenth Amendment claims on
the ground that Plaintiff failed to exhaust his administrative remedies. Defendant argues that, because
Plaintiff failed to pursue every available remedy, the instant litigation must be dismissed by this Court.
Mot. to Dismiss 2. Plaintiff concedes that he did not exhaust the available remedies but argues that he
discontinued his efforts only when he determined that continued efforts would be futile. Opp’n 5.
In order for a prisoner to bring an action under Section 1983 of Title 42 of the United
States Code, he must exhaust every administrative remedy available through the prison. The governing
language of the Prison Litigation Reform Act of 1995 (“PLRA”) reads, in part:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.
42 U.S.C. 1997e(a). The Supreme Court has interpreted the PLRA to cover any suit related to prison
life, “whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Thus, this Court
has previously held that the PLRA prohibits a prisoner from bringing suit concerning prison conditions
or occurrences without first exhausting all available administrative remedies. See Clinton v. Meyers,
No. CV 08-4177-DOC OP, 08-4177 2010 WL 114209, at *4 (C.D. Cal., Jan. 8, 2010) (Carter, J.).

In addition, federal courts must dismiss claims where a prisoner has failed to exhaust his
administrative- remedies, even where doing so would have been futile. See Wyatt v. Terhune, 315 F.3d
1108, 1120 (9th Cir. 2003). This is because, as the Supreme Court recently clarified, “exhaustion is
mandatory under the PLRA.” Jones v. Bock, 549 U.S. 199, 211 (2007). Furthermore, the Supreme
Court has interpreted the PLRA to preclude any federal court from hearing futility exceptions brought
by potential prisoner-litigants. See Clinton 2010 WL 114209, at *4 (citing Booth v. Churner, 532 U.S.
731, 740-741 (2001)).
In the instant litigation, Plaintiff concedes that he failed to exhaust his administrative
remedies because he failed to complete the appeal process made available to him by CSP Solano.
Plaintiff alleges that he pursued his claim through one level of informal review and three levels of
formal review. Opp’n 4. After four levels of appeal, Plaintiff maintains he was frustrated that his
requests were granted but his medication was still not delivered. Id. at 5. As such, Plaintiff felt “it
would have been futile to continue filing grievances because even if they were granted he would not be
assured that he would receive what he was requesting.” Id. Unfortunately for Plaintiff, this is precisely
the argument that the Supreme Court has rejected under the PLRA. Clinton, 2010 WL 114209, at *4.
Because Plaintiff admits that he did not exhaust all available administrative remedies, this Court must
dismiss this Complaint.
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B.

Plaintiff’s Federal Claims Must Be Dismissed with Prejudice

In dismissing Plaintiff’s Complaint for lack of exhaustion, the Court must decide whether
to do so with or without prejudice. As this Court has previously recognized, leave to amend should be
granted if it appears possible that the plaintiff could correct the defects in the complaint; if, however, it
is not possible for the complaint to be cured by amendment, the Court may dismiss without leave to
amend. Clinton, 2010 WL 114209, at *9 (citing Cato v. United States, 70 F.3d 1103, 1006 (9th Cir.
1995)
Until recently, the Ninth Circuit instructed courts to dismiss without prejudice if a
prisoner had failed to exhaust his nonjudicial remedies. See Wyatt, 315 F.3d at 1120. However, this
option is precluded by the Supreme Court’s decision in Woodford v. Ngo, 548 U.S. 81 (2006). In
Woodford, the Supreme Court upheld the dismissal of an inmate’s complaint because the exhaustion
requirement is not satisfied “by filing an untimely or otherwise procedurally defective administrative
grievance or appeal.” Id. at 83-84. District courts within the Ninth Circuit have interpreted Woodford
to mean that, where it is too late for an inmate to exhaust his remedies, dismissal without leave to
amend is proper because the plaintiff can plead no facts to satisfy exhaustion. See Martin v. Garza,
No. 06 CV 01095 JM, 2007 WL 2288127, at *4 (S.D. Cal. Aug. 7, 2007); Regan v. Frank, No. 0600066 JMS-LEK, 2007 WL 106537, at *4-5 (D. Haw. Jan. 9, 2007).
In the instant litigation, Plaintiff’s Complaint is dismissed because he failed to satisfy the
exhaustion requirement of the PLRA. Even if the Court were to grant Plaintiff leave to amend, he
would not be able to retroactively complete the administrative appeals process in order to exhaust all of
his available remedies. Consequently, granting Plaintiff leave to amend would be futile. Based on this
analysis, the Court finds that granting Defendant’s motion to dismiss without leave to amend is proper.
See Mester v. Miller, No. 2:09-cv-3307 KJM KJN, 2011 WL 3500988, at *3-6 (E.D. Cal. Aug. 9,
2011).
Therefore, to the extent Plaintiff alleges federal causes of action, Defendant’s motion to
dismiss Plaintiff’s Section 1983 claim arising from violations of the Eighth and Fourteenth Amendment
is GRANTED without leave to amend.
C.

Plaintiff’s State Tort Claims Are Dismissed Because He Failed To
Timely File His Claim, as Required by the Government Claims Act

Defendant alternatively moves to dismiss Plaintiff’s Complaint because the claims for
money damages, to the extent they arise from state law, are barred because Plaintiff failed to file them
first with the Victim Compensation and Government Claims Board (“VCGCB”). Def. Reply (“Reply”)
1. After reviewing statutory language, as well as the precedents established in both this Circuit and
those from the California state courts, this Court finds that it lacks jurisdiction because Plaintiff filed
the instant litigation before his damages claim was denied by the VCGCB. Because this Court lacks
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jurisdiction over the matter, it must dismiss Plaintiff’s Complaint to the extent that it alleges state law
claims.
Reviewing the dates relevant to Defendant’s argument, Plaintiff alleges that Defendant’s
conduct began on or around April 2008. Complaint ¶ 9. After proceeding through most, if not all, of
his administrative remedies made available through CSP Solano, Plaintiff filed the instant litigation on
October 2, 2008. Id. at 1. Approximately four months later, on January 27, 2009, Plaintiff filed his
claim for damages with the VCGCB. Opp’n 7. Plaintiff’s claim was rejected by the VCGCB on
February 10, 2009, at which point Plaintiff alleges that the VCGCB directed him that the court system
would be the best means of resolving his claim. Id. Because Plaintiff filed his Complaint prior to any
decision by the VCGCB, Defendant avers Plaintiff violated the Government Claims Act1 and, as such,
this Court must dismiss the Complaint. Reply 1-2.
California Government Code Section 945.4 provides the statutory basis for Defendant’s
motion, providing:
Except as provided in Sections 946.4 and 946.6, no suit for money or
damages may be brought against a public entity . . . until a written claim
therefor has been presented to the public entity and has been acted upon by
the board, or has been deemed to have been rejected by the board . . . .
Cal. Gov. Code § 945.4. Though Plaintiff contends that it would be “a waste of time and resources to
dismiss the case simply because a technical requirement was not fulfilled,” numerous courts in this
circuit have consistently found otherwise and this Court agrees. See Opp’n 7.
To begin, the Court of Appeals for the Ninth Circuit has repeatedly held that, in federal
cases, causes of action arising under California law are subject to the claims filing requirement
prescribed by Section 945.4. Karim-Panahi v. LAPD, 839 F.2d 621, 627 (9th Cir. 1988); Ellis v. City
of San Diego, 176 F.3d 1183, 1190 (9th Cir. 1999). In each of these cases, the Court of Appeals found
that where the respective plaintiffs failed to allege compliance with the GCA, the claims were barred
and properly dismissed by the respective district courts. Id. Further, the Eastern District has opined
that, “the filing requirement of a claim for damages ‘is more than a procedural requirement, it is a
condition precedent to plaintiff’s maintaining an action against defendants, in short, an integral part of
plaintiff’s cause action.’” Bradford v. City of Modesto, No. 1:06-CV-01214 AWI GSA, 2008 WL
1

Courts have referred to California Government Code Sections 810-996.6 as both
the Government Claims Act (“GCA”) and the California Tort Claims Act (“CTCA”).
Here, Plaintiff and Defendant refer to the statute as the “GCA” but several of the cases
cited use “CTCA.” For purposes of simplification, this Court chooses to follow City of
Stockton v. Superior Court, and refer to the statute as the GCA. See 42 Cal. 4th 730,
741-2 (Cal. 2007).
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4492543, at *9 (E.D. Cal. Oct. 3, 2008) (quoting Williams v. Horvath, 16 Cal. 3d 834, 842 (Cal.
1976)).
Even more recently, in litigation similar to the instant case, the Eastern District held that
“[f]ederal courts require compliance with the [GCA] for pendant state law claims for damages against
public entities or employees.” Yearby v. California Department of Corrections, No. 2:07-cv-02800
JAM KJN, 2010 WL 2880180, at *5 (E.D. Cal. Jul. 21, 2010) (emphasis added quoting Willis v.
Reddin, 418 F.2d 702, 704 (9th Cir. 1969)). Yearby, which involved a California inmate suing a
physician’s assistant at a state prison on Section 1983 grounds, declared, “state tort claims in a federal
court action pursuant to 42 U.S.C. § 1983 must allege compliance with the claim presentation
requirement.” Id. at *5. Ultimately, the Eastern District allowed litigation of the plaintiff’s complaint,
finding there was “substantial compliance” with the GCA by virtue of an amended complaint, as well
as an answer on the part of the defendant. Id. at *8. In analyzing the substantial compliance, the court
found:
“[s]everal factors support allowing plaintiff’s suit based on a ‘substantial
compliance’ analysis: (1) plaintiff’s tort claim was itself timely filed, thus
timely informing defendant of the claim for purposes of investigation and
settlement, satisfying the underlying purposes of [GCA}’s claim
presentation requirement; (2) defendant twice filed statements of
nonopposition to plaintiff’s requests to amend his complaint to add his state
law claims; and (3) neither plaintiff’s Third Amended Complaint nor the
instant Fourth Amended Complaint reflect any defects in plaintiff’s
pleading as to his tort claim.”
Id. An overwhelming factor in finding that the plaintiff in Yearby had substantially complied with the
GCA was the existence of unopposed amended complaints.
This Court, however, finds no evidence of substantial compliance on Plaintiff’s part and,
therefore, finds no reason to keep alive a claim that must otherwise be dismissed. Plaintiff concedes
that he did not abide by the requirements of Section 945.4. Opp’n 7. Instead, Plaintiff views the
VCGCB’s denial of his claim as a mitigating factor which, in fact, strengthens his argument that his
Complaint should be heard despite its noncompliance with the GCA. Id. None Plaintiff’s argument is
consistent with the clear statutory language–supported by ample case law–requiring Plaintiff to file his
claim with the VCGCB prior to initiating any sort of litigation in the court system.
Accordingly, to the extent Plaintiff may allege state causes of action, Defendant’s motion
to dismiss Plaintiff’s Complaint as barred by the GCA is GRANTED.
IV.

Disposition

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For the foregoing reasons, Traquina’s Motion to Dismiss is GRANTED. Plaintiff’s
federal claims are DISMISSED WITH PREJUDICE.
The Clerk shall serve this minute order on all parties to the action.

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