The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
DATE: January 24, 2011 TIME: 10:00 a.m. CTRM: 3 (Honorable Oliver W. Wanger)
On Monday, January 24, 2011, before the Honorable Oliver W. Wanger in Courtroom 3 of the United States District Court for the Eastern District of California, Defendants' Motion to Dismiss Plaintiff's First Amended Complaint ("FAC") and in the Alternative to Strike Allegations of Regulatory Violations and Attorney Fees was heard. All parties appeared through counsel. After argument on the issues in open court and review and consideration of all of the pleadings submitted by counsel:
1) Plaintiff NORMAL L. PIMENTEL ("Plaintiff") is bringing an action for damages against the COUNTY OF FRESNO ("County"), CAPTAIN JOSE FLORES ("Flores"), and Does 2-25.
2) Plaintiff initiated his action in the California Superior Court in and for the County of Fresno on March 20, 2009, Plaintiff requested leave to amend his original complaint on July 23, 2010, and filed the FAC on August 30, 2010 adding 42 U.S.C. § 1983 and California Elder Abuse causes of action.
3) Defendants removed Plaintiff's action to federal court on September 21, 2010 and filed a motion to dismiss the FAC on September 27, 2010.
4) Plaintiff's opposition to the motion to dismiss was filed on January 10, 2011 and Defendants' reply was filed on January 14, 2011.
5) The claims contained in the FAC allege three causes of action arising from Plaintiff's incarceration in the Fresno County Jail from March 18, 2008 through August 25, 2008: 1) Negligence against the County; 2) Violation of 42 U.S.C. § 1983 against all Defendants; and 3) California Elder Abuse against all Defendants.
6) The original complaint alleged only a negligence cause of action against the County for assigning Plaintiff to a top bunk bed without a ladder or other means to assist Plaintiff in climbing onto and off of the top bunk which allegedly on April 25, 2008 caused plaintiff to fall to the floor when descending from the top bunk and suffer injuries to his spine, back, and other parts of his body.
7) The FAC added allegations that Plaintiff was a 67-year-old, pre-trial detainee during his incarceration and that Defendants failed to ensure and provide emergency and basic health care services and adequate medical care after Plaintiff's fall, and the County failed to provide training and supervision regarding appropriate practices and procedures to provide adequate medical care; the FAC does not contain a claim of medical negligence.
8) The FAC asserts three distinct negligence claims: assignment of Plaintiff to a top bunk causing him to fall and injure his back; failure to ensure treatment from April 25, 2008 to April 30, 2008; and failure to provide proper follow-up therapy, diet, and treatment from May 2008 until his release on August 25, 2008.
9) Only the first negligence claim was alleged in the original Complaint; the second and third negligence claims were raised for the first time in the FAC and do not relate back to the original filing as they do not rest on the same set of facts alleged in the original complaint or the same instrumentality as the claims are based upon different acts and omissions, different injuries, and different duties.
10) There are no tolling provisions applicable to Plaintiff's state law claims as Ninth Circuit law holds that California Government Code § 352.1 does not apply to pre-trial detainees and subsection (b) states that it does not apply to causes of action against public entities or public employees for which a claim is required to be presented; equitable tolling is not available. See, Jones v. Blanas, 393 F.3d 918, ...