The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner incarcerated at California State Prison-Corcoran ("CSP-C"), who proceeds without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action was reassigned to the undersigned on February 9, 2010.*fn1
Presently pending for decision by this court are: (1) the motion of the sole remaining defendant, Gillian Dudley, to dismiss plaintiff's state tort and state constitutional claims (Dkt. No. 62); (2) plaintiff's motion for leave to file a Fifth Amended Complaint (Dkt. No. 77); (3) plaintiff's motion for leave to file a Supplemental Complaint (Dkt. No. 86); and (4) plaintiff's "Request for Intervention" to obtain preliminary injunctive relief (Dkt. No. 82). Plaintiff has filed an opposition to defendant's motion to dismiss (Dkt. No. 72), and defendant has filed oppositions to plaintiff's motions (Dkt. No. 83, 94).
This case proceeds on plaintiff's Fourth Amended Complaint (Dkt. No. 59) against defendant Dudley, a physician's assistant at High Desert State Prison ("HDSP"), based on claims of deliberate indifference to plaintiff's medical needs associated with a shoulder injury and a skin infection. Plaintiff alleges that while he was incarcerated at HDSP, defendant not only failed to provide plaintiff with adequate medical care, but also failed to arrange for reasonable accommodations relative to plaintiff's medical needs, thereby allegedly resulting in plaintiff's inability to perform routine daily activities, e.g., plaintiff was unable to comply with the administrative segregation requirement of cuffing behind the back and was therefore denied access to shower facilities. Plaintiff's claims are based on his October 17, 2007 medical appointment with Dudley and the 27 days thereafter, when plaintiff asserts he then obtained adequate care. Plaintiff further alleges that defendant acted in retaliation against him because plaintiff had exercised his right to complain, both informally and through the administrative grievance process, about prior alleged inadequate medical care.
The complaint alleges that defendant's actions constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, section 17, of the California Constitution, and the complaint contains a state tort claim of negligence characterized as "willful malicious failure to furnish, provide or summon immediate medical care . . . [in] violation of medical malpractice under the California Tort Claims Act" for which plaintiff "seeks redress under its statute Section 810 of the California Government Code." (Dkt. No. 59, at 8.) Plaintiff seeks damages and injunctive relief directing prison officials to allow plaintiff to engage in activities related to this litigation and to refrain from retaliation against plaintiff and other inmates assisting plaintiff. (Id. at 9-10.)
The following chronology is relevant to defendant's motion to dismiss and plaintiff's motions seeking further leave to amend and supplement his complaint:
1. Commencing October 17, 2007, defendant Dudley allegedly violated plaintiff's constitutional rights. (Dkt. No. 59, at 3-4.)
2. On December 28, 2007, plaintiff filed the instant action alleging deliberate indifference by Dudley and others. (Dkt. No. 1, at 13-14.)
3. On March 17, 2008, plaintiff submitted a claim pursuant to the California Tort Claims Act ("CTCA" or "Act"), Sections 810, et seq.*fn2 The claim was presented to the California Victim Compensation and Government Claims Board ("VCGCB"). As to defendant Dudley, the claim was made within the six-month limitation period of Section 911.2.*fn3 (The claim is referenced at Dkt. No. 38-2, at 32; Dkt. No. 59, at 31; however, a copy of the claim has not been provided.)
3. On April 4, 2008, plaintiff filed his First Amended Complaint, limited to challenging the conduct of defendant Dudley commencing October 17, 2007. (Dkt. No. 11.)
4. On May 7, 2008, the court ordered service of plaintiff's First Amended Complaint upon defendant Dudley (Dkt. No. 17); Dudley filed an executed waiver of service on July 9, 2008 (Dkt. No. 21).
5. On July 2, 2008, the VCGCB informed plaintiff that it would act on his claim on August 21, 2008. (Dkt. No. 38-2 at 32.)
6. On July 29, 2008, defendant filed her Answer to the First Amended Complaint, asserting generally in her Fifth Affirmative Defense that "Plaintiff has failed to file a timely claim with the Victim Compensation and Government Claims Board." (Dkt. No. 23, at 3.)
7. On August 29, 2008, plaintiff was informed by the VCGCB that his claim had been rejected at a hearing held August 21, 2008. (Dkt. No. 38-2, at 34.)
8. On September 24, 2008, plaintiff sought leave to file a Second Amended Complaint in order to allege pendant state claims, and filed a proposed Second Amended Complaint. (Dkt. Nos. 31, 32.) The court directed defendant to file an opposition or statement of non-opposition. (Dkt. No. 33.) Defendant filed a statement of non-opposition. (Dkt. No. 36.)
9. On October 24, 2008, this court denied without prejudice plaintiff's motion to amend his complaint. (Dkt. No. 37.) The court found that plaintiff had neither pled nor demonstrated compliance with the CTCA claims presentation requirements, and ruled as follows (Dkt. No. 37, at 2):
[P]laintiff's motion to amend will be denied without prejudice. In the interest of justice, the court will allow plaintiff thirty days to file a new motion to amend, together with a third amended complaint that pleads or otherwise demonstrates compliance with the CTCA claims presentation requirement. In the alternative, if plaintiff has not presented his state law claim to the state Victim Compensation and Government Claims Board, the court will allow plaintiff to file a request to proceed on his first amended complaint.
10. On November 20, 2008, plaintiff timely filed a new motion to amend his complaint and filed a proposed Third Amended Complaint. (Dkt. No. 38.) The court again directed defendant to file a statement of opposition or non-opposition (Dkt. No. 40); defendant filed a statement of non-opposition (Dkt. No. 41). The court granted plaintiff's motion on March 26, 2009 (Dkt. No. 49), and the case then proceeded on plaintiff's Third Amended Complaint (Dkt. No. 38). The complaint alleged in pertinent part that "[p]laintiff has . . . filed . . . a claim with the California Victim Compensation & Government Claims Board." (Dkt. No. 38, at 6.) Attached to that complaint are the above-noted VCGCB documents.
11. Defendant answered the Third Amended Complaint on April 3, 2009, asserting in her Sixth Affirmative Defense that "[p]laintiff has failed to file a timely claim with the Victim Compensation and Government Claims Board." (Dkt. No. 50, at 3.)
12. On July 21, 2009, plaintiff again sought leave to further amend his complaint (Dkt. No. 58) and filed a proposed Fourth Amended Complaint (Dkt. No. 59). The motion was granted by order filed September 1, 2009. (Dkt. No. 61.) The court reasoned that the complaint "add[ed] some clarity to [plaintiff's] factual allegations," complied with the pleading requirements of Federal Rule of Civil Procedure 8(a)(2), appeared to state cognizable claims against defendant Dudley, and resolved some "confusion surrounding plaintiff's previously filed amended complaints." (Id. at 2-3.) The Fourth Amended Complaint again challenged the conduct of defendant Dudley commencing October 17, 2007, and alleges in pertinent part that "[p]laintiff filed a Claim with the California Victim Compensation & Government Claims Board on 3/12/08 presenting the facts of this Complaint to obtain redress. . ." (Id. at 7.) Attached to the complaint is the above-noted correspondence from the VCGCB. (Dkt. No. 59, at 30-31.)
13. On September 16, 2009, defendant filed the instant motion to dismiss. (Dkt. No. 62.)
14. The court granted both of plaintiff's requests to extend time within which to file his opposition to defendant's motion (Dkt. Nos. 64, 71), which plaintiff ultimately filed on November 5, 2009 (Dkt. No. 72).
15. Pending the court's decision on defendant's motion to dismiss, plaintiff filed a motion to further amend his complaint (Dkt. No. 77) and a proposed Fifth Amended Complaint (Dkt. No. 76), and a motion for leave to file a Supplemental Complaint ...