Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 42 U.S.C. § 1983. On May 4, 2010, the court ordered service on a single defendant, Espinosa. On August 20, 2010, defendant Espinosa filed a motion to dismiss, arguing that plaintiff had failed to state any cognizable claims and that plaintiff's sole remedy was under California's law governing workers' compensation. Plaintiff filed an opposition.
On October 13, 2010, plaintiff moved to stay the case and sought leave to file an amended complaint. The court found that a stay was not warranted, but stated that it would hold the motion to dismiss in abeyance to allow the filing of a proposed amended complaint by plaintiff. The court granted plaintiff thirty days in which to file a proposed amended complaint. Defendant was allowed fourteen days after the filing of the proposed amended complaint to respond to the motion to amend. Both parties complied with that schedule, and the proposed amended complaint and motion to dismiss are now before the court.
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, ___U.S.___, ___, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
Plaintiff's claims arise from an incident on September 22, 2008, at California State Prison-Solano (CSP-Solano), where plaintiff was then incarcerated. According to the amended complaint, plaintiff was working as a plumber at the prison when defendant Espinosa, a correctional officer, backed an "electrical cart style" vehicle into plaintiff , throwing him some five feet into the air and dragging him another six feet. (Am. Compl. at 3-4 (Doc. No. 26)). The amended complaint alleges that plaintiff was slow to stand up from the collision, and that defendant Espinosa approached him to ask "Are you ok?" Id. at 4. Plaintiff responded, "I don't know; give me a minute." Id. Defendant Espinosa, "without stating any further words," collected some tools and drove away in the electric vehicle. Id. Plaintiff states he did not see defendant Espinosa again that day. Id.
About fifteen minutes later, "plaintiff began to experience extreme severe pain in his middle and lower back, left knee and foot, resulting in plaintiff having difficulty in standing." Id. The amended complaint states that two other inmates "carr[ied] plaintiff off of his feet across the facility yard to the facility medical area... [and] summoned for medical staff to come assist plaintiff" Id. at 4-5. Medical staff examined him, "resulting in plaintiff being prescribed medical pain shots, a cane, bottom bunk bed arrangements" and an order that plaintiff refrain from work for a week. Id. at 5. The amended complaint alleges that "[p]laintiff's medical condition as a result of this accident/incident has been met with protracted severe pain in multiple areas notably the upper/lower back, neck and spinal area resulting in the state prison medical expert on 3/30/09 recommending surgery."
The proposed amended complaint avers the following claims: (1) deliberate indifference by defendant Espinosa toward plaintiff immediately after the collision, in violation of the Eighth Amendment to the U.S. Constitution, the California Constitution and numerous state statutes; (2) conduct by six prison officials during the inmate grievance process that deprived plaintiff of his rights under the First, Eighth and Fourteenth Amendments to the U.S. Constitution, the California Constitution and numerous state statutes; (3) official liability of the State of California for conduct by a state employee using state property; and (4) vicarious liability of the Director of the California Department of Corrections and Rehabilitation (CDCR) and the warden at CSP-Solano. See Am. Compl. at 11-18.
As before, the court finds that plaintiff has stated a claim against defendant
Espinosa for deliberate indifference in violation of the Eighth Amendment.
As to the alleged violations of state law, "[a]s a condition precedent to suit against a public entity, the California Tort Claims Act (CTCA) requires the timely presentation of a written claim and the rejection of the claim in whole or in part." Mabe v. San Bernardino County, Dept. of Public Social Services, 237 F.3d 1101, 1111 (9th Cir.2001) (citations omitted). Compliance with the CTCA must be averred in the complaint. See Cal. Gov't Code § 910; Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d. 1470, 1477 (9th Cir. 1995). Failure to aver compliance with the CTCA ...