Gardner v. Johanigen

Filing 58

ORDER GRANTING 48 MOTION TO DISMISS; ORDER SETTING BRIEFING SCHEDULE by Hon. William H. Orrick. Defendant's motion is GRANTED, and Gardner's state law claims are DISMISSED without prejudice to his pursuing them in state court. This act ion shall proceed only on Gardners federal claims under the Fourth Amendment. On or before December 15, 2014, defendant shall file a motion for summary judgment, or notice regarding such motion. (Attachments: # 1 Certificate/Proof of Service)(jmdS, COURT STAFF) (Filed on 9/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DENNIS GARDNER,

United States District Court
Northern District of California

Plaintiff,
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ORDER GRANTING MOTION TO
DISMISS;

v.
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Case No. 13-cv-03193-WHO (PR)

J. JOHANIGEN,
Defendant.

ORDER SETTING BRIEFING
SCHEDULE

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INTRODUCTION
In this federal civil rights action, plaintiff Dennis Gardner alleges that defendant

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J. Johanigen, a police officer for the City of Pinole, is liable under both federal and state

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law for forcibly drawing his blood in a police garage. Defendant moves to dismiss the

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state law claims because Gardner failed to comply with state procedural requirements prior

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to filing suit. Defendant’s motion is GRANTED, and Gardner’s state law claims are

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DISMISSED without prejudice to his pursuing them in state court.

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This action shall proceed only on Gardner’s federal claims under the Fourth

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Amendment. The Court has set a new briefing schedule, as detailed in the conclusion of

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this order.

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DISCUSSION

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Only Gardner’s state law claims are at issue in this order. In his amended

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complaint, he alleges without elaboration that defendant is liable under California state

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law. (Am. Compl. at 3.) The Court dismissed these claims with leave to amend because

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Gardner had not shown that he had complied with state procedural requirements — filing a

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written tort claim with the City of Pinole — before filing suit. (Docket No. 46.)
Per California Government Code section 945.4, a plaintiff cannot recover damages

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against a government agency in court for personal injury claims unless that plaintiff has

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first filed a written claim with that agency “fairly describ[ing] what the entity is alleged to

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have done.” Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th

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441, 446 (2004). The requirement also applies if the plaintiff is seeking to file claims

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against a governmental employee as long as the claim arises from acts the employee did
within the scope of his or her employment. Cal. Gov’t Code § 950.2. This state

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United States District Court
Northern District of California

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requirement applies in actions, such as the instant one, filed under 42 U.S.C. § 1983.

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Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008). “Complaints

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that do not allege facts demonstrating either that a tort claim was timely presented or that

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compliance with the claims statute is excused are subject to dismissal.” Id. (quoting Shirk

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v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (Cal. 2007)).
The Court instructed Gardner to file an amended complaint showing that he

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complied with section 945.4. (Docket No. 46 at 6.) He has not done so, and there is

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nothing in the record showing that the requirement has been met.1 Accordingly,

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defendant’s motion to dismiss is GRANTED, and Gardner’s state law claims are

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DISMISSED without prejudice to his filing such claims in state court.
CONCLUSION

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Defendant’s motion to dismiss (Docket No. 48) is GRANTED, and Gardner’s state

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law claims are DISMISSED without prejudice.

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The action shall proceed only on Gardner’s federal claims under the Fourth

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Amendment. The Court sets a new briefing schedule. On or before December 15, 2014,

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He alleges that he filed a claim with the state “Victim Compensation and Government
Claims Board.” (Am. Compl. at 3.) Because that filing is not a written claim filed with
the City of Pinole, it cannot satisfy the state filing requirement.
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defendant shall file a motion for summary judgment, or notice regarding such motion.

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Gardner’s opposition, if any, shall be filed forty-five days after defendant’s motion has

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been filed. Defendant’s reply, if any, shall be filed within thirty days after the opposition

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has been filed.

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Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified

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immunity found, if material facts are in dispute. If any defendant is of the opinion that this

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case cannot be resolved by summary judgment, he shall so inform the Court prior to the

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United States District Court
Northern District of California

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date the summary judgment motion is due.
No hearing will be held on the motion unless the Court so orders at a later date.

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All communications by Gardner with the Court must be served on defendant, or

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defendant’s counsel, by mailing a true copy of the document to defendant or defendant’s

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counsel.

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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

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No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1

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is required before the parties may conduct discovery.

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It is Gardner’s responsibility to prosecute this case. He must keep the Court

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informed of any change of address and must comply with the Court’s orders in a timely

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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Extensions of time must be filed no later than the deadline sought to be extended
and must be accompanied by a showing of good cause.
A decision from the Ninth Circuit requires that pro se prisoner-plaintiffs

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be given “notice of what is required of them in order to oppose” summary judgment

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motions at the time of filing of the motions, rather than when the court orders service of

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process or otherwise before the motions are filed. Woods v. Carey, 684 F.3d 934, 935 (9th

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Cir. 2012). Defendant shall provide the following notice to Gardner when he files and
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United States District Court
Northern District of California

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serves any motion for summary judgment:
The defendants have made a motion for summary judgment by which they
seek to have your case dismissed. A motion for summary judgment under
Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your
case.
Rule 56 tells you what you must do in order to oppose a motion for
summary judgment. Generally, summary judgment must be granted when
there is no genuine issue of material fact — that is, if there is no real
dispute about any fact that would affect the result of your case, the party
who asked for summary judgment is entitled to judgment as a matter of
law, which will end your case. When a party you are suing makes a motion
for summary judgment that is properly supported by declarations (or other
sworn testimony), you cannot simply rely on what your complaint says.
Instead, you must set out specific facts in declarations, depositions, answers
to interrogatories, or authenticated documents, as provided in Rule 56(e),
that contradict the facts shown in the defendants’ declarations and
documents and show that there is a genuine issue of material fact for trial.
If you do not submit your own evidence in opposition, summary judgment,
if appropriate, may be entered against you. If summary judgment is
granted, your case will be dismissed and there will be no trial.

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Rand v. Rowland, 154 F.3d 952, 962–63 (9th Cir. 1998).

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The Clerk shall terminate Docket No. 48.

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IT IS SO ORDERED.

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Dated: September 4, 2014
_________________________
WILLIAM H. ORRICK
United States District Judge

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