McCullock v. Tharratt et al

Filing 53

ORDER denying 52 Motion for Reconsideration filed by Robert McCullock. Signed by Judge Larry Alan Burns on 1/4/2018. (All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT MCCULLOCK,

CASE NO. 16cv457-LAB (DHB)

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Plaintiff,

ORDER DENYING MOTION FOR
RECONSIDERATION

vs.
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R. STEVEN THARRATT, et al.,

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Defendants.

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After the Court denied Plaintiff Robert McCullock’s 28 U.S.C. § 1983 action,

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McCullock filed a motion for reconsideration under Fed. R. Civ. P. 59. He argues that the

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Court misapplied the pleading standard and failed to liberally construe his pro se complaint.

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He suggests that he should have been given an opportunity to file a third complaint.

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The original complaint was dismissed, partly because of McCullock’s failure to plead

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adequate facts. But the amended complaint — and the case — were dismissed with

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prejudice because it was clear that McCullock had no § 1983 claim and his complaint could

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not be saved by further amendment.

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McCullock brought only § 1983 claims in this action, and those were the only claims

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dismissed with prejudice. He now says he might have a claim for negligence and

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malpractice. Accordingly, he asks the Court to “transfer these issues” to another court that

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can adjudicate them.

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///

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16cv457

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This is not possible. The Court does not have, and never did have, jurisdiction over

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any negligence or malpractice claims. If sued in their official capacities, Defendants are

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immune from suit in federal court under the Eleventh Amendment. See Holley v. Cal. Dep't

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of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010). If they are sued in their individual capacities,

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the Court cannot exercise diversity jurisdiction over these non-diverse parties, and no other

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basis for jurisdiction is present. Even assuming transfer were appropriate, no court that the

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Court has the power to transfer this case to would have the power to adjudicate McCullock’s

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negligence or malpractice claims.

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Furthermore, McCullock did not plead compliance with the California Tort Claims Act.

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See Mitchel v. City of Santa Rosa, 476 Fed. Appx. 661, 664 (9th Cir. 2011) (affirming

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dismissal of claim on the ground that the plaintiff failed to plead compliance with the

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California Tort Claims Act). If he failed to comply with its requirements, any negligence or

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malpractice claims he might have had would be barred. See Cal. Govt. Code §§ 905.2, 910,

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911.2, 945.4, 950–950.2; Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th

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Cir. 1995).

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McCullock’s Rule 59 motion is DENIED.

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IT IS SO ORDERED.
DATED: January 4, 2018

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HONORABLE LARRY ALAN BURNS
United States District Judge

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16cv457