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Bruce Mcgill v. Alvaroc Traquina


October 18, 2011


The opinion of the court was delivered by: The Honorable David O. Carter, Judge




[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective address of record in this action on this date.]

Date:____________ Deputy Clerk:___________________________________


Julie Barrera Not Present Courtroom Clerk Court Reporter



Before the Court is Defendant Alvaroc Traquina, MD., ("Traquina")'s Motion to Dismiss Strike pursuant to Federal Rules 12(b)(6) (Docket 19). The Court finds this matter appropriate for without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. The Court has considered the opposing, and replying papers, and hereby GRANTS Traquina's Motion.

I. Factual Background

Bruce McGill ("Plaintiff") is a 44 year-old inmate of the California State Prison at Solano Solano"). Complaint ¶¶ 4, 7. Plaintiff alleges that, in 2006, he was diagnosed with glaucoma incarcerated at CSP Solano. Id. ¶ 7. As a result of this diagnosis, Plaintiff claims that his have written prescriptions for various medications including Cosopt, Inderal LA, and Id. ¶ 8.

Alvaroc Traquina ("Defendant") is the Chief Medical Officer and Health Care Manager Solano. Id. ¶ 5. By virtue of this position, Plaintiff avers that Defendant is an employee of the California. Id.

A. Factual Background for Plaintiff's Eighth Amendment Claim

Beginning around April 2008, Defendant allegedly ceased distributing or inconsistently Plaintiff's daily glaucoma medications. Id. ¶ 9. On April 29, 2008, Plaintiff asserts that he emergency appeal--referred to as a "602 appeal"--because he had not received his glaucoma for 30 days. Id. ¶ 10. In this 602 appeal, Plaintiff describes the failed efforts of three nurses who tried to get the prescriptions filled. Id. Plaintiff alleges that, on May 5, 2008, his appeal was granted. Id. ¶ 11. Despite this action, Plaintiff claims that he still did not receive all of glaucoma medication. Id. Counsel for Plaintiff followed up with the warden of CSP Solano on 2008, yet no further action was taken. Id. ¶ 12.

On May 21, 2008, Plaintiff states that he submitted his second-level 602 appeal. Id. ¶ 13. on July 3, 2008, Plaintiff's appeal was granted and Defendant allegedly stated he would reall of Plaintiff's medications. Id. Plaintiff, however, avers that he did not receive these on July 3, 2008, although he did receive them at some later date. Id. ¶ 14. Additionally, argues that after issuing the second-level appeal response, Defendant canceled all of Plaintiff's doctor's appointments including, but not limited to, those scheduled for treating eye pain, loss and headaches. Id. ¶ 17. In a final attempt to procure his medications, Plaintiff alleges that 12, 2008, he submitted a 602 appeal to the Directors level. Id. ¶ 15. At the time the instant was filed, no decision had been issued on this appeal. Id.

Throughout the approximately four months that Plaintiff had not received his glaucoma Plaintiff asserts that he suffered severe headaches, eye pain, and marked loss of vision in eye. Id. ¶ 16. As a result of these injuries, Plaintiff seeks in his prayer for relief: (1) general to compensate Plaintiff for injuries he suffered and continues to suffer from; (2) punitive (3) attorney's fees; (4) costs of suit herein; and (5) such other and further relief as this Court deem proper.

B. Procedural Background for Plaintiff's Potential State Tort Claims

Plaintiff filed the instant action on October 2, 2008. Compl. 6. Nearly four months later, 27, 2009, Plaintiff filed a claim for his injuries and damages with the Victim Compensation overnment Claims Board ("VCGCB"). Opposition to Motion to Dismiss ("Opp'n") 7. On 10, 2009, while this action was still pending, the VCGCB informed Plaintiff that the court would be the appropriate means for resolution of his claims. Id.

II. Legal Standard

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a allegations fail to state a claim upon which relief can be granted. Dismissal for failure to claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In order for a complaint to a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not accepted as true and do not establish a plausible claim for relief. Id. at 1950.Determining a complaint states a plausible claim for relief will be a context-specific task requiring the court on its judicial experience and common sense. Id.

In evaluating a 12(b)(6) motion, review is "limited to the contents of the Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, exhibits to the complaint, as well as matters of public record, may be considered in determining dismissal was proper without converting the motion to one for summary judgment. Parks of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Further, a court may documents "on which the complaint 'necessarily relies' if: (1) the complaint refers to the (2) the document is central to the plaintiff's claim; and (3) no party questions the of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th 2006). "The Court may treat such a document as 'part of the complaint, and thus may assume that are true for purposes of a motion to dismiss under Rule 12(b)(6).'" Id. (quoting United v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).

Dismissal without leave to amend is appropriate only when the Court is satisfied deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 750, 758 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)); Lopez v. 203 F.3d 1122, 1127 (9th Cir. 2000).Rule 15 of the Federal Rules of Civil Procedure mandates to amend be freely given whenever justice requires. This policy is applied with liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.

III. Discussion

A. Plaintiff's Federal Claims Are Dismissed Because Plaintiff Failed to Exhaust His Administrative Remedies, as Required by the PLRA Defendant first moves to dismiss Plaintiff's Eighth and Fourteenth Amendment claims on that Plaintiff failed to exhaust his administrative remedies. Defendant argues that, because failed to pursue every available remedy, the instant litigation must be dismissed by this Court. Dismiss 2. Plaintiff concedes that he did not exhaust the available remedies but argues that he his efforts only when he determined that continued efforts would be futile. Opp'n 5.

In order for a prisoner to bring an action under Section 1983 of Title 42 of the United Code, he must exhaust every administrative remedy available through the prison. The governing of the Prison Litigation Reform Act of 1995 ("PLRA") reads, in part:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

.S.C. 1997e(a). The Supreme Court has interpreted the PLRA to cover any suit related to prison hether they involve general circumstances or particular episodes, and whether they allege force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Thus, this Court

previously held that the PLRA prohibits a prisoner from bringing suit concerning prison conditions occurrences without first exhausting all available administrative remedies. See Clinton v. Meyers, 08-4177-DOC OP, 08-4177 2010 WL 114209, at *4 (C.D. Cal., Jan. 8, 2010) (Carter, J.).

In addition, federal courts must dismiss claims where a prisoner has failed to exhaust his remedies, even where doing so would have been futile. See Wyatt v. Terhune, 315 F.3d 1120 (9th Cir. 2003). This is because, as the Supreme Court recently clarified, "exhaustion is under the PLRA." Jones v. Bock, 549 U.S. 199, 211 (2007). Furthermore, the Supreme has interpreted the PLRA to preclude any federal court from hearing futility exceptions brought potential prisoner-litigants. See Clinton 2010 WL 114209, at *4 (citing Booth v. Churner, 532 U.S. 740-741 (2001)).

In the instant litigation, Plaintiff concedes that he failed to exhaust his administrative because he failed to complete the appeal process made available to him by CSP Solano. alleges that he pursued his claim through one level of informal review and three levels of review. Opp'n 4. After four levels of appeal, Plaintiff maintains he was frustrated that his were granted but his medication was still not delivered. Id. at 5. As such, Plaintiff felt "it have been futile to continue filing grievances because even if they were granted he would not be that he would receive what he was requesting." Id. Unfortunately for Plaintiff, this is precisely argument that the Supreme Court has rejected under the PLRA. Clinton, 2010 WL 114209, at *4.

Plaintiff admits that he did not exhaust all available administrative remedies, this Court must this Complaint.

B. Plaintiff's Federal Claims Must Be Dismissed with Prejudice

In dismissing Plaintiff's Complaint for lack of exhaustion, the Court must decide whether so with or without prejudice. As this Court has previously recognized, leave to amend should be if it appears possible that the plaintiff could correct the defects in the complaint; if, however, it possible for the complaint to be cured by amendment, the Court may dismiss without leave to Clinton, 2010 WL 114209, at *9 (citing Cato v. United States, 70 F.3d 1103, 1006 (9th Cir. Until recently, the Ninth Circuit instructed courts to dismiss without prejudice if a had failed to exhaust his non-judicial remedies. See Wyatt, 315 F.3d at 1120. However, this is precluded by the Supreme Court's decision in Woodford v. Ngo, 548 U.S. 81 (2006). In

, the Supreme Court upheld the dismissal of an inmate's complaint because the exhaustion is not satisfied "by filing an untimely or otherwise procedurally defective administrative or appeal." Id. at 83-84. District courts within the Ninth Circuit have interpreted Woodford that, where it is too late for an inmate to exhaust his remedies, dismissal without leave to is proper because the plaintiff can plead no facts to satisfy exhaustion. See Martin v. Garza, CV 01095 JM, 2007 WL 2288127, at *4 (S.D. Cal. Aug. 7, 2007); Regan v. Frank, No. 06-JMS-LEK, 2007 WL 106537, at *4-5 (D. Haw. Jan. 9, 2007).

In the instant litigation, Plaintiff's Complaint is dismissed because he failed to satisfy the requirement of the PLRA. Even if the Court were to grant Plaintiff leave to amend, he not be able to retroactively complete the administrative appeals process in order to exhaust all of available remedies. Consequently, granting Plaintiff leave to amend would be futile. Based on this the Court finds that granting Defendant's motion to dismiss without leave to amend is proper. ester v. Miller, No. 2:09-cv-3307 KJM KJN, 2011 WL 3500988, at *3-6 (E.D. Cal. Aug. 9,

Therefore, to the extent Plaintiff alleges federal causes of action, Defendant's motion to Plaintiff's Section 1983 claim arising from violations of the Eighth and Fourteenth Amendment RANTED without leave to amend.

C. Plaintiff's State Tort Claims Are Dismissed Because He Failed To Timely File His Claim, as Required by the Government Claims Act

Defendant alternatively moves to dismiss Plaintiff's Complaint because the claims for damages, to the extent they arise from state law, are barred because Plaintiff failed to file them ith the Victim Compensation and Government Claims Board ("VCGCB"). Def. Reply ("Reply") reviewing statutory language, as well as the precedents established in both this Circuit and from the California state courts, this Court finds that it lacks jurisdiction because Plaintiff filed litigation before his damages claim was denied by the VCGCB. Because this Court lacks over the matter, it must dismiss Plaintiff's Complaint to the extent that it alleges state law

Reviewing the dates relevant to Defendant's argument, Plaintiff alleges that Defendant's began on or around April 2008. Complaint ¶ 9. After proceeding through most, if not all, of administrative remedies made available through CSP Solano, Plaintiff filed the instant litigation on 2, 2008. Id. at 1. Approximately four months later, on January 27, 2009, Plaintiff filed his for damages with the VCGCB. Opp'n 7. Plaintiff's claim was rejected by the VCGCB on 10, 2009, at which point Plaintiff alleges that the VCGCB directed him that the court system be the best means of resolving his claim. Id. Because Plaintiff filed his Complaint prior to any by the VCGCB, Defendant avers Plaintiff violated the Government Claims Act*fn1 and, as such, must dismiss the Complaint. Reply 1-2.

California Government Code Section 945.4 provides the statutory basis for Defendant's providing:

Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . . .

ov. Code § 945.4. Though Plaintiff contends that it would be "a waste of time and resources to the case simply because a technical requirement was not fulfilled," numerous courts in this

have consistently found otherwise and this Court agrees. See Opp'n 7.

To begin, the Court of Appeals for the Ninth Circuit has repeatedly held that, in federal causes of action arising under California law are subject to the claims filing requirement by Section 945.4. Karim-Panahi v. LAPD, 839 F.2d 621, 627 (9th Cir. 1988); Ellis v. City Diego, 176 F.3d 1183, 1190 (9th Cir. 1999). In each of these cases, the Court of Appeals found here the respective plaintiffs failed to allege compliance with the GCA, the claims were barred properly dismissed by the respective district courts. Id. Further, the Eastern District has opined "the filing requirement of a claim for damages 'is more than a procedural requirement, it is a precedent to plaintiff's maintaining an action against defendants, in short, an integral part of cause action.'" Bradford v. City of Modesto, No. 1:06-CV-01214 AWI GSA, 2008 WL at *9 (E.D. Cal. Oct. 3, 2008) (quoting Williams v. Horvath, 16 Cal. 3d 834, 842 (Cal.

Even more recently, in litigation similar to the instant case, the Eastern District held that courts require compliance with the [GCA] for pendant state law claims for damages against entities or employees." Yearby v. California Department of Corrections, No. 2:07-cv-02800 KJN, 2010 WL 2880180, at *5 (E.D. Cal. Jul. 21, 2010) (emphasis added quoting Willis v. , 418 F.2d 702, 704 (9th Cir. 1969)). Yearby, which involved a California inmate suing a assistant at a state prison on Section 1983 grounds, declared, "state tort claims in a federal action pursuant to 42 U.S.C. § 1983 must allege compliance with the claim presentation

Id. at *5. Ultimately, the Eastern District allowed litigation of the plaintiff's complaint, there was "substantial compliance" with the GCA by virtue of an amended complaint, as well answer on the part of the defendant. Id. at *8. In analyzing the substantial compliance, the court

"[s]everal 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 [GCA}'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."

overwhelming factor in finding that the plaintiff in Yearby had substantially complied with the as the existence of unopposed amended complaints.

This Court, however, finds no evidence of substantial compliance on Plaintiff's part and, finds no reason to keep alive a claim that must otherwise be dismissed. Plaintiff concedes did not abide by the requirements of Section 945.4. Opp'n 7. Instead, Plaintiff views the CB's denial of his claim as a mitigating factor which, in fact, strengthens his argument that his should be heard despite its noncompliance with the GCA. Id. None Plaintiff's argument is with the clear statutory language--supported by ample case law--requiring Plaintiff to file his with the VCGCB prior to initiating any sort of litigation in the court system.

Accordingly, to the extent Plaintiff may allege state causes of action, Defendant's motion Plaintiff's Complaint as barred by the GCA is GRANTED.

IV. Disposition

For the foregoing reasons, Traquina's Motion to Dismiss is GRANTED. Plaintiff's claims are DISMISSED WITH PREJUDICE.

The Clerk shall serve this minute order on all parties to the action.

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