The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING MOTIONS TO DISMISS
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all the relevant records and files, and the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court concurs with the majority of the Magistrate Judge's findings, conclusions, and recommendations. Accordingly, the Court adopts the following order, which is drawn largely from the Report and Recommendation.
Plaintiff, a California state prisoner, filed a pro se civil rights Complaint, pursuant to 42 U.S.C. § 1983 on October 1, 2008, after being granted leave to proceed in forma pauperis. The Complaint originally named nine defendants, including: Three current or former members of the prison staff at California State Prison, Los Angeles County ("CSP-LAC"); Antelope Valley Hospital ("AVH"); three members of the staff at AVH; and two John Doe defendants. The gravamen of plaintiff's claims was that officials at AVH and CSP-LAC failed to provide plaintiff with adequate care for an injury he sustained to his hand.
On November 18, 2008, defendant AVH filed a Motion to Dismiss and/or for Judgment on the Pleadings on the grounds that the Court lacked jurisdiction over plaintiff's state law tort claims against it, as plaintiff had failed to comply with the claims presentation requirement of California's Government Claims Act, Cal. Gov't Code § 900 et. seq. In addition, AVH asserted that plaintiff's claims were barred by the statute of limitations applicable to professional negligence actions against health care providers set forth in Cal. Code Civ. Proc. § 340.5. Finally, AVH argued that the Court should strike Claim Ten of the Complaint as duplicative of Claim Nine. Plaintiff filed an Opposition to the Motion to Dismiss on December 8, 2008, and defendant AVH filed a Reply on December 10, 2008. The matter was transferred to this Court's calendar on July 1, 2009.
On December 22, 2008, defendant Lynn filed an Answer to the Complaint. Plaintiff filed an Opposition to defendant Lynn's Answer on January 22, 2009, which the Court construed as his Reply.
On May 12, 2009, defendants Priest and Sailor filed an Answer to the Complaint. Plaintiff filed a Reply thereto on May 22, 2009.
In an Order issued August 17, 2009, the District Court granted in part and denied in part defendant AVH's Motion to Dismiss and/or for Judgment on the Pleadings. The District Court found that plaintiff had failed to allege compliance with the Government Claims Act because plaintiff had not alleged that he had complied with the claims presentation requirement of the Government Claims Act as to defendant AVH. Because it appeared that plaintiff might be able to allege facts showing his compliance with the claims presentation requirement of the Government Claims Act, the District Court granted plaintiff leave to amend. The District Court found that defendant AVH's statute of limitations argument lacked merit, however, because plaintiff's claims against defendant AVH were governed by the statute of limitations contained in the California Government Code, not the Code of Civil Procedure. Finally, the District Court found that defendant AVH's motion to strike Claim Ten of the Complaint lacked merit.
On September 4, 2009, plaintiff filed a First Amended Complaint ("FAC"), along with a number of exhibits thereto ("FAC Exh."). On September 14, 2009, AVH filed a Motion to Dismiss the FAC and/or for Judgment on the Pleadings and Motion to Strike, along with a supporting Memorandum of Points and Authorities ("AVH Motion"), on the grounds that: (1) Plaintiff admits that he has not made any attempt to comply with the Government Claims Act as to AVH; (2) plaintiff's Eighth Amendment claim is barred by the applicable statute of limitations; and (3) inadequate medical care/medical malpractice cannot be the basis of an Eighth Amendment claim. Attached to the AVH Motion was a declaration of Stacy K. Brigham, an attorney for defendant AVH. After one extension of time, plaintiff filed a Reply to the AVH Motion on October 19, 2009 ("AVH Mot. Reply"). Plaintiff resubmitted his Reply on December 4, 2009, along with an Addendum to the Reply ("Addendum"). The Addendum consisted of an Appendix ("Add. Appx. A") containing numerous documents, including a copy of plaintiff's claim to the California Board of Control, and a letter dated August 24, 2006, from defendant Lynn to plaintiff. Plaintiff's Addendum was resubmitted on January 25, 2010.
On September 15, 2009, defendant Lynn filed a Motion to Dismiss the FAC and/or for Judgment on the Pleadings, along with a supporting Memorandum of Points and Authorities ("Lynn Motion"), on the grounds that: (1) Plaintiff was not at liberty to amend the Complaint with respect to defendant Lynn because he had filed an Answer to the Complaint; (2) plaintiff had failed to state a cause of action for violation of the Eighth Amendment; (3) plaintiff had failed to state a cause of action for violation of Cal. Gov't Code § 845.6; (4) plaintiff's complaint was barred by the applicable statute of limitations; and (5) plaintiff's medical negligence claim must be severed and remanded to state court for lack of subject matter jurisdiction. Attached to the Lynn Motion was a Request for Judicial Notice. After one extension of time, on November 2, 2009, plaintiff filed a document captioned "Plaintiff's Reply to the Courts [sic] Belated Forwarding of a Copy of Defendant John Lynn's Second Motion to Dismiss." ("Lynn Mot. Reply") In this filing, plaintiff asserted that he did not receive a copy of the Lynn Motion until October 27, 2009, past the date by which he was required to file an Opposition thereto. Plaintiff stated in his filing, however, that his Opposition to the AVH Motion "more than sufficiently covers defendant Lynn's frivolous claim to dismissal." (Lynn Mot. Reply at 3.)
On November 24, 2009, defendants R. Sailor and D. Priest filed an Answer to the FAC. Plaintiff filed a Reply thereto on December 23, 2009.
Thus, this matter is now ready for decision. For the reasons discussed below, both the AVH Motion and Lynn Motion are granted.
SUMMARY OF PLAINTIFF'S ALLEGATIONS AND CLAIMS
Plaintiff alleges that, on August 20, 2006, prison officials transported him to defendant AVH for treatment of an injury to his right hand. (FAC at 6.) Once at AVH, x-rays allegedly were taken of plaintiff's hand. (FAC at 6.) Either defendant Lynn, a doctor at AVH, or defendant Gregory, also a doctor at AVH, allegedly told plaintiff that his hand sustained sprains to his wrist and fourth finger. (FAC at 6-7.) Defendant Hansen, a nurse at AVH, as well as unnamed doctors, allegedly applied a cast that completely covered plaintiff's right hand, including his fourth and fifth fingers. (FAC at 7.) As plaintiff was leaving the hospital, he allegedly heard either Lynn or Gregory tell defendant Priest, a sergeant at CSP-LAC, that plaintiff should receive follow-up care at CSP-LAC. (FAC at 7.) Plaintiff alleges he never received this follow-up care. (FAC at 7.)
Plaintiff further alleges that on August 24, 2006, he received a letter from Lynn stating that the Radiology Department at AVH had noted a "discrepancy" and that his x-ray showed a "possible faint fracture" of the fifth finger of his right hand. (FAC at 7.) Plaintiff allegedly showed the letter to defendant Sailor, a "Medical Technical Assistant" at CSP-LAC, who allegedly began to shout at plaintiff, accusing plaintiff of "whining," and stating that he had suffered a similar injury. (FAC at 8.) Plaintiff allegedly filed an administrative appeal to which he received no response, and allegedly sought help from other prison officials without success. (FAC at 8.)
Defendant Hendricks, an orthopedic surgeon at CSP-LAC, allegedly examined plaintiff and removed his cast on October 26, 2006. (FAC at 9.) When the cast was removed, plaintiff allegedly discovered that his fifth finger had been broken and had healed incorrectly, resulting in a "severely deformed" hand. (FAC at 9-10.) Plaintiff asserts that the alleged deformity makes it difficult for him to write. (FAC at 10.) Defendant Hendricks allegedly scheduled plaintiff for corrective surgery, but plaintiff asserts that he declined the surgery, purportedly because the surgery would have interfered with his ability to meet court deadlines. (FAC at 10.) On February 9, 2007, prison doctors allegedly told plaintiff that the corrective surgery was elective because it could be performed at any time. (FAC at 10-11.)
Plaintiff purports to allege twelve separate Causes of Action in the FAC under state and ...