Degner v Athanassious
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/20/11 RECOMMENDING that 17 MOTION for JUDGMENT on the pleadings as to plaintiffs state law negligence claim be granted. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DONALD DEGNER,
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Plaintiff,
vs.
ATHANASSIOUS,
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Defendant.
FINDINGS AND RECOMMENDATIONS
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No. CIV S-10-1673 JAM EFB P
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action
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brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302
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pursuant to 28 U.S.C. § 636(b)(1). On October 7, 2010, the court screened plaintiff’s June 30,
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2010 complaint pursuant to 28 U.S.C. § 1915A, and found that it stated a cognizable claim for
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relief against defendant Athanassious. Liberally construed, the complaint alleges both a state
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law negligence claim and an Eighth Amendment deliberate indifference claim.
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On March 29, 2011, defendant Athanassious moved under Rule 12(c) of the Federal
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Rules of Civil Procedure for judgment on plaintiff’s state law negligence claim on the ground
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that plaintiff had not plead compliance with the California Government Claims Act (“Act”).1
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Athanassious filed an answer on February 11, 2011.
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The Act requires that a plaintiff who seeks to prosecute a claim for damages against a state
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employee first present that claim to the California Victim Compensation and Government Board
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within six months of the accrual of the claim, to obtain leave to file a late claim, or to obtain
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judicial relief from the claim-presentation requirement. Cal. Gov’t Code §§ 905, 905.2, 910,
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911.2, 911.4, 911.6, 945.4, 950-950.2; California v. Super. Ct. (Bodde), 32 Cal.4th 1234, 1245
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(2004). To state a tort claim against a state employee, the plaintiff must allege compliance with
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the presentation requirement. Bodde, 32 Cal.4th at 1245; Karim-Panahi v. L.A. Police Dep’t,
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839 F.2d 621, 627 (9th Cir. 1988). Plaintiff did not allege such compliance in his complaint.
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On May 4, 2011, plaintiff filed a “Letter to U.S. District Judge and Magistrate Judge,”
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requesting that the court “take judicial notice that [he] did not file [his] complaint under
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negligence [], but rather deliberate indifference.” Dckt. No. 20. Plaintiff requested that the court
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deny defendant’s motion on that ground. The court construes plaintiff’s letter as a statement of
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non-opposition to dismissal of plaintiff’s state law negligence claim, on the ground that plaintiff
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did not to intend to pursue a negligence claim, but rather intended to pursue only an Eighth
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Amendment deliberate indifference claim.
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Given that plaintiff has not alleged compliance with California’s tort claim presentation
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rules, and that he does not oppose dismissal of any state law negligence claim, the court finds
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that defendant’s motion for judgment on the pleadings as to the negligence claim must be
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granted.
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Accordingly, IT IS HEREBY RECOMMENDED that defendant’s March 29, 2011
motion for judgment on the pleadings as to plaintiff’s state law negligence claim be granted.
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These findings and recommendations are 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 fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: May 20, 2011.
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