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Yearby v. California Dep't of Corrections


July 19, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


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 (Dkt. No. 86) and a proposed Supplemental Complaint (Dkt. No. 87).


Defendant moves to dismiss both of plaintiff's state law claims. Defendant's motion as to plaintiff's tort claim is made pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, while defendant's motion as to plaintiff's constitutional claim is premised on the contention that there exists no private right of action.

A. Legal Standards

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n. 1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defects. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). However, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id.

B. California Tort Claims Act

Defendant contends that plaintiff's state law tort cause of action must be dismissed because, at the time plaintiff initiated this action, he had not complied with the claim presentation requirements of the California Tort Claims Act, as set forth in California Government Code Sections 810, et seq. Relying on Munoz v. California, 33 Cal. App. 4th 1767, 1776 (1995), and State of California v. Superior Court (Bodde), 32 Cal.4th 1234');">32 Cal. 4th 1234, 1239 (2004), defendant asserts that such compliance required that plaintiff's tort claim be presented to, and rejected by, the state before plaintiff filed his initial complaint.

Pursuant to the express terms of Section 945.4,*fn4 a damages action cannot be brought against a public entity or one of its employees unless the plaintiff first presents a timely claim to the public entity and such claim is acted upon or the time for doing so has expired. "The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity." Munoz, 33 Cal. App. 4th at 1776. Compliance with the claim presentation requirement constitutes an element of a cause of action for damages against a public entity. Bodde, 32 Cal. 4th at 1244. "[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." Id. at 1239 (fn. omitted), 1243. Bodde overruled an appellate court decision which had found adequate the tort claims asserted against the state in a prisoner's third amended complaint despite the plaintiff's failure to allege compliance with the Tort Claims Act. See generally, State of California v. Superior Court, 130 Cal. Rptr. 2d 94 (finding that such compliance was merely procedural), overruled by Bodde, 32 Cal. 4th at 1245 (compliance is substantive).

Federal courts require compliance with the CTCA for pendant state law claims for damages against public entities or employees. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir. 1995). Thus, state tort claims in a federal court action pursuant to 42 U.S.C. § 1983 must allege compliance with the claim presentation requirement. United States v. California, 655 F.2d 914, 918 (9th Cir. 1980); Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 1988); Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008).

Notwithstanding these requirements, Bodde distinguished and approved a line of cases involving prematurely-filed complaints. See generally, 32 Cal. 4th at 1243-44 (and cases cited therein).*fn5 In one of the earliest cases cited with approval in Bodde, Cory v. City of Huntington Beach, 43 Cal. App. 3d 131 (1974), the plaintiff filed his personal injury suit only two days after filing his tort claim. The trial court granted defendant city's motion for summary judgment on the ground that the action had been filed prematurely. However, the California Court of Appeal reversed, applying a test of substantial compliance. The appellate court concluded that the city had not been prejudiced by the premature filing of suit because the complaint was not served until the period for rejection of the claim had expired. "Thus the defect had ceased to exist before the city was even formally notified that suit had been brought." Id. at 136. The court found "that the defense of prematurity, if timely raised, merely would have been a ground for abatement of the action" before expiration of the city's time for rejecting the claim, id., but the time had expired and such remedy was extinguished by the time the complaint was served. Cory nonetheless drew a distinction between the facts presented therein and cases in which the plaintiff had failed to file a claim prior to commencing suit, thus resulting in "a total frustration of the statutory purpose." Id.

Similarly, Bahten v. County of Merced, 59 Cal. App. 3d 101, 103-04 (1976), disapproved on other grounds, State v. Superior Court, 32 Cal.4th 1234, 1244 (2004), involved a situation wherein the plaintiff had filed a complaint in state superior court against several defendants, including the County of Merced ("county"). Only four days earlier, plaintiff had petitioned the county for leave to file a late claim; the county took no action, and the petition was deemed denied by operation of law 45 days thereafter. § 911.6. The superior court then granted plaintiff's petition for an order relieving him from compliance with the claim presentation requirement of Section 945.4. Plaintiff filed an amended complaint alleging relief from such compliance, re-alleging his tort cause of action against the county and adding another cause of action. However, the amended complaint was filed more than 30 days after the state court granted the petition for relief and was therefore outside the time limit of Section 946.6(f).*fn6 The superior court granted the county's demurrer and motion to strike the amended complaint for failure to state a cause of action. The California Court of Appeal reversed. The appellate court rejected defendant's argument that there existed no cause of action against the county since "the original complaint was a nullity because it did not state a cause of action, and it was superseded with the filing of the amended complaint [which] . . . was also a nullity, because it was filed after the expiration of the 30-day period." Bahten, 59 Cal. App. 3d at 106. The court agreed with plaintiff that his original complaint, although prematurely filed, satisfied the time limitations of Section 946.6 because it "was actually on file when the order granting such relief was made." Id. at 107. The court reasoned that the policies underlying the CTCA had been met because the county had received actual notice of plaintiff's claim four days before the complaint was filed. Id. at 112. Moreover, there was no evidence that the county's rights had been impaired or prejudiced -- the county "made no attempt to abate the prematurely filed action" and by the time the county sought to strike the complaint, the defect therein had already been cured. Id.

More recently, in Ramos v. Marcisz, 2008 WL 257292 (S.D. Cal. 2008),*fn7 the plaintiff filed her wrongful death diversity action in federal court on the same day she filed a state court petition for relief from CTCA's claim presentation requirement. Both were filed after expiration of the period for filing a claim pursuant to the CTCA, although plaintiff had previously served a Notice of Intent to Commence Action on defendant Tri-City ("city"). The state court granted plaintiff's requested relief on February 5, 2007. Although denied initially, the district court on reconsideration granted plaintiff's motion for leave to file an amended complaint that included her tort allegations against the city. After plaintiff filed her amended complaint on May 7, 2007, the city answered and moved for summary judgment on the ground that plaintiff's amended complaint was untimely under Section 946.6(f) (see n. 6, supra) and could not be deemed to "relate back" to her original complaint because the latter did not (and could not) allege satisfaction of the claim presentation requirement of Section 945.4. Relying on the Bodde decision "reaffirming the prematurely filed complaint doctrine," id. at *6, the court in Ramos rejected the city's arguments, finding that plaintiff's initial complaint "substantially complied with the CTCA's statute of limitations." 2008 WL 257292, at *3. The district court found that the city had "received every substantive benefit of the CTCA to which it was entitled," because it had "received ample notice, had an opportunity to investigate, and was actually named (and served) in the original complaint." Id. at *7.

This court's review of the cases cited in Bodde and other California tort cases involving prematurely-filed complaints has failed to reveal a case, as here, where plaintiff filed the original complaint before filing a timely tort claim and then amended his complaint to allege a tort cause of action and plead compliance with the claim presentation requirements. However, the "substantial compliance" reasoning of these cases remains analogous.

Neither plaintiff's initial complaint herein (Dkt. No. 1), nor his First Amended Complaint (Dkt. No. 11), alleged a state tort cause of action. The court dismissed the initial complaint for failure to state any claim (Dkt. No. 9), and construed the First Amended Complaint to state a claim pursuant only to 42 U.S.C. § 1983 (Dkt. No. 12). Plaintiff first alleged a state tort cause of action in his proposed Second Amended Complaint, filed September 24, 2008. (Dkt. No. 32, at 3.) In so doing, plaintiff complied with the deadlines for both filing a tort claim and filing suit on such claim.

Plaintiff timely filed his tort claim on March 17, 2008, challenging conduct that occurred on October 17, 2007. § 911.2(a) (claim must be presented not later than six months after the accrual of the cause of action). Plaintiff was notified of the August 21, 2008 rejection of his tort claim by letter dated August 29, 2008, which triggered the six-month period for filing a court action. § 945.6 (suit must be brought not later than six months after the date such notice is deposited in the mail). Plaintiff acted swiftly. He had until March 2, 2009, to "file suit."*fn8 Yet, less than one month after receiving the rejection, on September 24, 2008, plaintiff sought leave to file his proposed Second Amended Complaint to state his tort cause of action.

Moreover, defendant twice acceded to plaintiff's request. Defendant filed a statement of non-opposition to plaintiff's proposed Second Amended Complaint. (Dkt. No. 36.) The court, however, found that the proposed complaint failed to plead or demonstrate compliance with the claim presentation requirement and denied the motion without prejudice to plaintiff filing a new motion and a proposed Third Amended Complaint. (Dkt. No. 37.) On November 20, 2008, plaintiff timely filed a new motion and proposed Third Amended Complaint which satisfactorily alleged and demonstrated compliance with the CTCA. (Dkt. No. 38.) Defendant again filed a statement of non-opposition on December 2, 2008. (Dkt. No. 41.) The court granted plaintiff's motion on March 26, 2009. (Dkt. No. 49.) The case then proceeded on plaintiff's Third Amended Complaint until the court granted plaintiff's motion for leave to proceed on the now operative Fourth Amended Complaint. (Dkt. Nos. 58, 59, 61.) Thus, defendant was fully aware, at all times, of plaintiff's tort claim and agreed to its allegation in this action.

This case does not present the "relation back" issues presented in Wilson v. People By and Through Dept. of Public Works, 271 Cal. App. 2d 665, 669 (1969) ("the rule of relation back does not operate to assign the performance of a condition precedent to a date prior to its actual occurrence"). Accord, Harris v. Vector Marketing Corp., 2010 WL 56179, *3 (N.D. Cal. 2010) ("[a] subsequent pleading which sets out the subsequent performance of a condition precedent to suit cannot relate the time of performance of the condition back to the time of the filing of the original complaint and thereby toll the running of the period of limitation, since the rule of relation back does not operate to assign the performance of a condition precedent to a date prior to its actual occurrence"); Baas v. Dollar Tree Stores, Inc., 2009 WL 1765759, *5 (N.D. Cal. 2009); Moreno v. Autozone, Inc., 2007 WL 1650942, *4 (N.D. Cal. 2007) (all applying "no relation back" reasoning to the statutory conditions precedent to filing suit under the Private Attorney General Act, Cal. Labor Code §§ 2698, et seq.). Unlike these cases, plaintiff herein does not seek to assign (and cannot so assign) his compliance with the claim presentation requirement to a prior date. Rather, plaintiff merely seeks recognition of his timely compliance with the Act.

Finally, the court is cognizant that there is no discretion accorded to prematurely-filed complaints under the analogous Federal Tort Claims Act. Overwhelmingly the cases construe 28 U.S.C. § 2675*fn9 as clear and mandatory, and require that exhaustion be demonstrated in the original complaint. United States v. McNeil, 508 U.S. 106 (1993); Jerves v. United States, 966 F.2d 517 (9th Cir. 192); Sparrow v. U.S.P.S., 825 F. Supp. 252 (E. D. Cal. 1993) (claim presented one day before filing of complaint); Soto v. United States, 2007 WL 2601411 (E.D. Cal. 2007) (claim filed more than one month after complaint); Miller v. Mayers Memorial Hospital, 2009 WL 3048690 (E.D. Cal. 2009) (claim filed one day after complaint), Webster v United States, 205 WL 3031154 (E.D. Cal. 2005) (claim filed more than three months after complaint). These cases uniformly hold that a federal tort claim must be both presented and denied before a plaintiff institutes suit by filing his initial complaint, and that an amended complaint will not be construed as "instituting" an action within the meaning of § 2675. But see, Duplan v. Harper, 188 F.3d 1195 (10th Cir. 1999) (court administratively closed case to permit exhaustion of the tort claim (claim filed two days after the complaint was filed), then, after administrative exhaustion of the claim, construed (with the government's consent) the amended complaint as a new suit). In contrast to these federal cases, with the exception of Duplan, California courts have exercised discretion in assessing whether prematurely-filed actions have "substantially complied" with CTCA's claim presentation requirement.

For the foregoing reasons and those that follow, the court finds that plaintiff timely alleged his tort cause of action in the instant proceeding. Had plaintiff filed a separate state tort action against defendant, it would have been timely, and the proceeding could have been properly consolidated with the instant § 1983 case. The sequence of events herein appears no more egregious than authorizing a suit filed only two days after the tort claim was filed, Cory, supra, 43 Cal. App. 3d 131, or authorizing a suit filed contemporaneously with a request for relief entirely from the claims presentations requirement, Ramos, supra, 2008 WL 257292. Several factors support allowing plaintiff's suit based on a "substantial compliance" analysis:

(1) plaintiff's tort claim was itself timely filed, thus timely informing defendant of the claim for purposes of investigation and settlement, satisfying the underlying purposes of CTCA's claim presentation requirement; (2) defendant twice filed statements of nonopposition to plaintiff's requests to amend his complaint to add his state law claims; and (3) neither plaintiff's Third Amended Complaint nor the instant Fourth Amended Complaint reflect any defects in plaintiff's pleading as to his tort claim. To permit plaintiff's tort claim in this action supports rather than undermines the purpose and compliance requirements of the California Tort Claims Act. Plaintiff was required to comply, and did timely comply, with the requirements of the Act, and has so plead. Dismissal for failure to state a cause of action would be fundamentally unfair under these circumstances. Additionally, the facts of this case are sufficiently unique that permitting plaintiff's tort claim will not open a floodgate of similar cases.

The court will therefore recommend that defendant's motion to dismiss plaintiff's state tort cause of action be denied.

C. California Constitution

Defendant also seeks to dismiss plaintiff's claim that defendant's actions violated plaintiff's state constitutional right to be free from cruel or unusual punishment as provided by Article I, section 17, of the California Constitution ("[c]ruel or unusual punishment may not be inflicted or excessive fines imposed").

As defendant accurately contends, there is no private cause of action for damages under the state cruel and unusual punishment clause. See Giraldo v. California Dept. of Corrections and Rehabilitation, 168 Cal. App. 4th 231, 253-56 (2008) ("there is no basis to recognize a claim for damages under article 1, section 17 of the California Constitution"). Plaintiff's requests for injunctive relief do not implicate his allegations of cruel or unusual punishment.

Accordingly, the court will recommend dismissal of plaintiff's state constitutional claim.


Plaintiff moves for leave to file a further amended and/or supplemental complaint. Pursuant to Rule 15, Federal Rules of Civil Procedure, once an answer has been filed, a party may amend a pleading only by leave of court or by written consent of the adverse party.

Fed. R. Civ. P. 15(a). A court should freely grant leave to amend when justice so requires. Id.; Foman v. Davis, 371 U.S. 178, 182 (1962). As the Supreme Court has articulated:

In the absence of any apparent or declared reason-- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowing the amendment, futility of the amendment, etc.-- the leave sought should, as the rules require, be "freely given."

Foman, 371 U.S. at 182. "Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile. Additionally, the district court may consider the factor of undue delay [although] [u]ndue delay by itself . . . is insufficient to justify denying a motion to amend." Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999).

The rules governing supplemental complaints are more restrictive. "Rule 15(d) provides that a court may permit a party to serve a supplemental pleading setting forth transactions, occurrences, or events that have happened since the filing of the pleading to be supplemented, thereby bringing the case up to date. Leave must be sought by motion, upon reasonable notice to the other parties, and the court may impose such terms as are just. The purpose of subdivision (d) is to promote as complete an adjudication of the dispute between the parties as is possible." Wright, Miller, Kane & Marcus, 6A Fed. Prac. & Proc. Civ. § 1504 (2d Ed. 2010).

In support of his proposed Fifth Amended Complaint (Dkt. No. 76), plaintiff asserts that he "has experienced a continuous and consistent [sic] pattern of similar conduct in which caused Plaintiff to initiate this action [sic]," which he believes is also actionable pursuant to the Eighth Amendment, and that he therefore seeks to join additional defendants whose conduct "could possibly be related to the transaction and occurrance [sic] that gave rise to the original pleadings" (Dkt. No. 77, at 1-2.) The proposed complaint seeks to name the Director of the California Department of Corrections and Rehabilitation, and administrators and staff at California State Prison-Corcoran, for alleged deliberate indifference to plaintiff's serious medical needs "from January 28, 2008 thru Present date of this Complaint [December 2009]." (Dkt. No. 76, at 2-3.) Plaintiff alleges that he was housed at the CSP-C Security Housing Unit from December 2007 to October 2009, and suffered a back injury on January 28, 2008, for which he allegedly received inadequate response by correctional staff and inadequate medical care by medical staff. The proposed complaint ends before the completion of plaintiff's statement of facts.

Plaintiff's motion for leave to file a supplemental complaint (Dkt. No. 86) is virtually identical to his motion for leave to file an amended complaint (Dkt. No. 77). The proposed "Supplemental Complaint" names as defendants the Chief Medical Officer at CSP-C's Substance Abuse Treatment Facility, and three CSP-C physician assistants. (Dkt. No. 87, at 2, 9.) Plaintiff states that he was transferred to CSP-C Substance Abuse Treatment Facility on October 13, 2009, and alleges that he has since been prescribed medication that has caused significant adverse side effects and allergic reactions. This proposed complaint, like the former, abruptly ends within the statement of facts.

In addition to the inherent inadequacies of these pleadings under Federal Rule of Civil Procedure 8, neither satisfies the requirements for authorizing additional pleadings in this action. Each proposed complaint challenges different conduct by different people, and neither names the only current defendant. The challenged conduct arose at different times in different facilities -- October 2007 at HDSP (operative Fourth Amended Complaint), January 2008 at CSPC Security Housing Unit (proposed Fifth Amended Complaint), and October 2009 at CSP-C Substance Abuse Treatment Facility (proposed Supplemental Complaint). Unrelated claims against unrelated defendants belong in different suits. Fed. R. Civ. P. 20(a)(2)(A),(B); Aul v. Allstate Life Ins. Co., 993 F.2d 881, 884 (9th Cir.1993) ("A claim based on different rights and established by different transactional facts will be a different cause of action"). The fact that plaintiff makes Eighth Amendment claims against all putative defendants does not establish common questions of law or fact.

Additionally, the Prison Litigation Reform Act ("PLRA") requires full exhaustion of administrative remedies before commencing any action with respect to prison conditions. 42 U.S.C. § 1997e; Kinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (holding PLRA requires exhaustion of administrative remedies prior to filing suit). Plaintiff could not possibly have exhausted his administrative remedies as to the conduct challenged in his currently proposed complaints when he filed the instant action on December 27, 2007. Thus, even if plaintiff could demonstrate shared transactional facts, his new claims would be subject to a successful motion to dismiss due to failure to exhaust. Further amendment would therefore be futile. Moreover, given the extensive history of amendment in this action, further amendment, even if advisable, would unduly delay this action.

Plaintiff's motion to file a supplemental complaint is even more tangential. Because plaintiff's proposed complaints fail to re-allege any claims against defendant Dudley, allowing the supplemental complaint would effectively dismiss Dudley. Elucidation of subsequent related events, not dismissal, is the purpose of Rule 15(d), and cannot be served by substituting defendants and unrelated events . In sum, there is no support for plaintiff's efforts to supplant his current complaint with one setting forth unrelated and unexhausted claims against new defendants at different facilities.

Accordingly, the court will deny plaintiff's motions to file an amended and/or supplemental complaint. Plaintiff is cautioned that any further attempt to amend or supplement the operative complaint will be viewed with disfavor and, absent relevant and necessary further allegations as to defendant Dudley, as a deliberate effort to further delay this action warranting the imposition of sanctions, including the possibility of dismissing this action.


On January 15, 2010, plaintiff filed a one-paragraph "Request for Intervention" to obtain preliminary injunctive relief (Dkt. No. 82), which defendant opposed (Dkt. No. 83), to which plaintiff filed a reply (Dkt. No. 89). The "Request" noted "extreme difficulties" in plaintiff obtaining access to the law library and preparing his legal materials due to the "discriminatory conduct" of Correctional Officer Stevens. Plaintiff "request[s] the Court's intervention in Granting the Preliminary Injunctive Relief as set fourth [sic] in Plaintiff's 4th Amended Complaint" (Dkt. No. 82, at 1), apparently referencing plaintiff's efforts to obtain an order of this court directing prison officials to allow plaintiff to engage in activities related to this litigation and to refrain from retaliation against plaintiff, or other inmates assisting plaintiff, because he filed this action. (Dkt. No. 59, at 9-10.)

"It is now established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977); see also, Ching v. Lewis, 895 F.2d 608, 609 (9th Cir. 1990). In order to state a denial of access claim under the First Amendment, a prisoner must show that he suffered an "actual injury" as a result of the defendants' actions by explaining how the challenged official acts or omissions hindered plaintiff's efforts to pursue a non-frivolous legal claim. Lewis v. Casey, 518 U.S. 343, 351-55 (1996). Plaintiff must show "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348. Actual injury may be shown if the denial "hindered his efforts to pursue a legal claim," such as having his complaint dismissed for "for failure to satisfy some technical requirements" or if he "suffered arguably actionable harm that he wished to bring before the courts, but was so stymied [by the denial] that he was unable even to file a complaint." Id. at 351.

Defendants oppose this motion on the ground that plaintiff has had ample access to prison legal resources. (Dkt. No. 83.) Defendants have provided records of, inter alia, plaintiff's legal document processing requests and law library logs which demonstrate that plaintiff used the law library on December 1, 2, 9, 22, 30, 2009, and January 12, 28 and February 3, 2010, and that he obtained photocopies and envelopes on January 26 and February 3, 2010. (Id. at 2; Dkt. No. 83-2, at 2-8.)

Plaintiff responds that defendant's documentation demonstrates that plaintiff has had only five hours in the law library and should have had at least thirty hours. (Dkt. No. 89.) He alleges that his placement in administrative segregation has unfairly contributed to this disparity.

Plaintiff has attached numerous documents including administrative grievances plaintiff has pursued relative to these matters.

Plaintiff's numerous filings in this case do not demonstrate that plaintiff has been prejudiced by any alleged denial of access to the law library. Even if plaintiff has been denied adequate access to the legal resources available at his institution, and plaintiff has exhausted his administrative remedies relative thereto, the allegations are not encompassed within the claims set forth in plaintiff's complaint and therefore belong in different actions. The same is true of plaintiff's anticipatory requests for injunctive relief set forth in his Fourth Amended Complaint -- absent administrative exhaustion of his denial of access claim and a suit based upon that claim, plaintiff is unable to obtain a court order directing institutional accommodation to plaintiff's legal research and preparation needs.

Accordingly, the court will recommend that plaintiff's "Request for Intervention" to obtain preliminary injunctive be denied.


Counsel for sole defendant Dudley has filed a status report (Dkt. No. 95) which notes in part that plaintiff consented to the jurisdiction of the magistrate judge on April 30, 2008 (Dkt. No. 16), but that defendant has not yet been served with the standard form seeking defendant's consent. Accordingly, the Clerk of Court will be directed to send defendant the standard form for indicating whether defendant consents to the jurisdiction of the magistrate judge for all purposes.


For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for leave to file a Fifth Amended Complaint (Dkt. No. 77) is denied;

2. Plaintiff's motion for leave to file a Supplemental Complaint (Dkt. No. 86) is denied; and

3. The Clerk of Court is directed to send defendant the standard form for indicating whether defendant consents to the jurisdiction of the magistrate judge for all purposes.


1. Defendant's motion to dismiss (Dkt. No. 62) plaintiff's state tort claim be denied;

2. Defendant's motion to dismiss (Dkt. No. 62) plaintiff's state constitutional claim be granted; and

3. Plaintiff's "Request for Intervention" to obtain preliminary injunctive relief (Dkt. No. 82) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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