Moore v. Tesluk et al

Filing 33

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/13/2017 ORDERING Clerk to appoint a district judge to this action and RECOMMENDING that defendant Tesluk's 18 Motion to Dismiss plaintiffs claim pursuan t to California Government Code § 845.6 be granted and defendant Tesluk be ordered to file a response to plaintiff's 8th Amendment claim within 20 days of the adoption of these findings and recommendations. Appointed and referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN MOORE, 12 13 14 No. 2: 16-cv-2268 KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS G. TESLUK et al., 15 Defendants. 16 17 18 I. Introduction Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendant Tesluk’s motion to dismiss pursuant 20 to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 18.) For the reasons stated herein, the 21 undersigned recommends that defendant’s motion be granted. 22 II. Legal Standard for Motion to Dismiss Brought Pursuant to Federal Rule of Civil Procedure 23 12(b)(6) 24 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 25 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 26 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 27 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 28 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 1 1 McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 2 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more 3 than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a 4 cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 6 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 7 upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. 8 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 9 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 10 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes 11 of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 12 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). 13 A motion to dismiss for failure to state a claim should not be granted unless it appears 14 beyond doubt that the plaintiff can prove no set of facts in support of his claims which would 15 entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se 16 pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 17 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz 18 v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal 19 interpretation of a pro se complaint may not supply essential elements of the claim that were not 20 pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 21 III. Discussion 22 23 This action proceeds on the original complaint against defendants Fox, Nguyen, Tesluk and Win. Defendants Fox, Nguyen and Win have filed answers. (ECF Nos. 22, 30.) 24 Plaintiff alleges that defendants Fox, Nguyen and Win are employed at the Deuel 25 Vocational Institution (“DVI”). (ECF No. 1 at 5-6.) Plaintiff alleges that defendant Tesluk is a 26 medical doctor with an office at 400 East Orangeburg Avenue, Suite 2, Modesto, California. (Id. 27 at 8.) Plaintiff alleges that defendant Tesluk is “under contract with the Department of 28 Corrections and Rehabilitation (California) at DVI to perform” cataract/implant surgery, retina 2 1 surgery, refractive surgery and oculoplastic surgery.” (Id.) 2 3 Plaintiff alleges that defendant Tesluk provided inadequate medical care in violation of the Eighth Amendment and California Government Code § 845.6. (Id. at 18-19, 22-23.) 4 In the pending motion, defendant Tesluk moves to dismiss plaintiff’s claim for violation 5 of California Government Code § 845.6. (ECF No. 19.) Defendant argues that California 6 Government Code § 845.6 only authorizes claims against a public entity or public employee, and 7 that defendant Tesluk is neither. 8 California Government Code § 845.6 provides that “a public employee, and the public 9 entity where the employee is acting within the scope of his employment, is liable if the employee 10 knows or has reason to know that the prisoner is in need of immediate medical care and he fails to 11 take reasonable action to summon such medical care.” Cal. Gov't Code § 845.6. In order to 12 prove a claim under § 845.6, plaintiffs must establish three elements: “(1) the public employee 13 knows or has reason to know of the need, (2) of immediate medical care, and (3) fails to take 14 reasonable action to summon such medical care.” Castaneda v. Dep't of Corr. & Rehab., 212 15 Cal.App.4th 1051, 1070 (2013) (emphasis in original). 16 The text of § 845.6 makes clear that liability under that section is limited to public 17 employees or public entities. Lawson v. Superior Court, 180 Cal.App.4th 1372, 1398 (2010). 18 According to the Government Code, a public employee is an employee of a public entity, and a 19 public entity includes “a county, city, district, public authority, public agency, and any other 20 political subdivision or public corporation in the State.” Cal. Gov't Code §§ 811.2, 811.4. 21 Furthermore, an “employee” under the Government Code “does not include an independent 22 contractor.” Cal. Gov't Code § 810.2. 23 As noted by defendant, in the complaint plaintiff alleges that defendant Tesluk was “under 24 contract” with the California Department of Corrections and Rehabilitation (“CDCR”). Plaintiff 25 does not allege that defendant Tesluk was employed by CDCR. A letter to plaintiff from 26 defendant Tesluk is attached as an exhibit to plaintiff’s complaint. (ECF No. 1 at 44.) This letter 27 indicates that defendant Tesluk is employed at “Modesto Eye Surgery, A Medical Group.” (Id.) 28 //// 3 1 In his opposition, does not allege that defendant Tesluk is an employee of CDCR. 2 It is clear from the complaint and attached exhibits that defendant Tesluk is not an 3 employee of CDCR or any other public entity. Because defendant Tesluk is not a public 4 employee, plaintiff cannot state a claim against him pursuant to California Government Code 5 § 845.6. It is also clear from the pleadings that plaintiff cannot cure this pleading defect to state a 6 potentially colorable claim pursuant to this section. Accordingly, defendant’s motion to dismiss 7 should be granted. 8 9 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall appoint a district judge to this action; and 10 IT IS HEREBY RECOMMENDED that: 11 1. Defendant Tesluk’s motion to dismiss plaintiff’s claim pursuant to California 12 13 14 Government Code § 845.6 (ECF No. 18) be granted; 2. Defendant Tesluk be ordered to file a response to plaintiff’s Eighth Amendment claim within twenty days of the adoption of these findings and recommendations. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 objections shall be filed and served within fourteen days after service of the objections. The 21 parties are advised that failure to file objections within the specified time may waive the right to 22 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 Dated: July 13, 2017 24 25 26 27 Mo2268.mtd kc 28 4

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