ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND ORDER ON PLAINTIFF'S MOTIONS (Doc. Nos. 7, 8, 10, 11, 13, 24, 28, 29, 42)
This case stems from the arrest of Plaintiff Jaclyn Wilhite
("Wilhite") by Defendant City of Bakersfield ("the City") police
officers and from civil proceedings initiated by Wilhite. Wilhite is
proceeding pro se and originally filed suit in the Kern County
Superior Court on October 19, 2010. The operative complaint is the
Third Amended Complaint ("TAC"). The TAC includes sixteen causes of
action, including three claims under 42 U.S.C. § 1983, and identifies
twelve defendants, although it does not appear that all of the
defendants have been served. Defendants removed this case on October
11, 2011, and filed four separate motions to dismiss. *fn1
Wilhite filed untimely oppositions and other motions, but
was prohibited from being heard at oral argument pursuant to Local
Rule 230. Defendants filed replies at the direction of the Court.
After considering the filings of the parties, the motions to dismiss
will be granted in part.
From the TAC, on November 1, 2009, Wilhite was attacked in her home by her roommate, Theresa Pori, with a 4 1/2 foot stick for 10 minutes. Wilhite called for emergency help, and members of the Bakersfield Police Department arrived several minutes later. The officers met Wilhite outside of her home. Two of the officers, Defendant Johns and Defendant Pair, approached Wilhite and abruptly arrested her for aggravated assault with a deadly weapon, even though Wilhite was the victim of the assault and had not committed the crime. The officers failed to collect evidence, failed to competently investigate the situation, and failed to provide medical treatment to Wilhite. Johns and Pair made false and defamatory reports against Wilhite, including misrepresentations regarding the presence of witnesses and the need for medical treatment.
On November 2, 2009, Wilhite was booked after being brought to the jail on false charges. Four officers/deputies at the jail took Wilhite's personal information, and Wilhite was escorted "upstairs" to receive new clothing. Wilhite received no medical treatment for two days, and no one, including defendant Deputy Singa, took photographs of Wilhite's injuries. After three days, Wilhite was never arraigned, and charges against Pori for battery were dropped. The failure to investigate and collect and preserve evidence prevented Wilhite from pursuing criminal charges against Pori. Further, while at the jail on November 2, 2009, defendant Deputy Maxwell physically abused Wilhite by intentionally and repeatedly using excessive pressure on Wilhite's fractured and bruised thumb, which caused her to scream several times. Wilhite was released from the jail late in the evening of November 4, 2009.
On November 5, 2009, Wilhite went to the Kern Medical Center via taxi cab to be treated examined, and photographed. The Medical Center had no camera and did not take photographs. A doctor interviewed Wilhite and offered to have her left hand x-rayed to determine if her thumb was fractured. Wilhite refused the x-ray and left after waiting 6 1/2 hours with a prescription for pain medication.
Between November 16, 2009, and January 18, 2010, Wilhite attempted to file charges against Pori. However, the Kern County District Attorney's Office and Assistant District Attorney Valeta Wilde belittled Wilhite and refused to investigate the matter or file charges.
On January 21, 2010, the City of Bakersfield ("the City") and one of its employees promised Wilhite that she would receive a duplicate copy of the emergency call made by Wilhite. However, despite this promise, a fraudulent copy was produced in that Wilhite's request for an ambulance was deleted from the produced recording.
On November 13, 2009, Wilhite filed a civil case against Pori in the Kern County Superior Court. However, defendant Judge Brumfield and an unknown bailiff denied Wilhite fair and just hearings on multiple occasions through their management and control of the courtroom. On December 17, 2009, Judge Brumfield improperly dissolved a restraining order against Pori. On February 16, 2010, an unknown bailiff improperly prevented Wilhite from entering the courtroom. On March 4, 2010, Judge Brumfield ruled against Wilhite and falsely reported that the defendants in the civil matter had submitted evidence that had not in fact been submitted. Further, Judge Brumfield would not listen to the emergency recordings, held that photographs of Wilhite's wounds did not meet the necessary burden of proof, and permitted perjured testimony. Judgment was entered against Wilhite on March 10, 2010.
On March 4, 2010, Wilhite attempted to file another request for a restraining order against Pori, but on March 5, 2010, Judge Brumfield refused to allow the matter to proceed. On June 1, 2010, Wilhite filed another request for a restraining order against Pori, but Judge Brumfield again refused to allow the matter to proceed.
In October 2010, Wilhite filed this lawsuit in the Kern County Superior Court. The County represents that, prior to removal, the Superior Court allowed Wilhite to amend her complaint and name Deputy Maxwell as Doe 5, Deputy Singa as Doe 6, and Valeta Wilde as Doe 8. Further, the City's attorney has represented that Wilhite recently served Terrye Steiner, an employee of the Bakersfield Police Department Communications Center, with the complaint and named Steiner as Doe 11. Steiner makes no arguments regarding the propriety of her service or being named as Doe 11.
Under Federal Rule of Civil Procedure 12(b)(6) ,
a claim may be dismissed because of the plaintiff's "failure to
state a claim upon which relief can be granted." Fed. R. Civ. P.
12(b)(6) . A dismissal under Rule 12(b)(6) may be
based on the lack of a cognizable legal theory or on the absence of
sufficient facts alleged under a cognizable legal theory. Johnson v.
Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008);
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In reviewing a complaint under Rule 12(b)(6), all allegations of
material fact are taken as true and construed in the light most
favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth.,
540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075,
1077 (9th Cir. 1999). However, the Court is not required "to accept as
true allegations that are merely conclusory, unwarranted deductions of
fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536
F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). To "avoid a Rule 12(b)(6)
dismissal, "a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the
court draw the reasonable inference that the defendant is liable for
the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The Ninth Circuit
has distilled the following principles from Iqbal
First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint, but it may take judicial notice of public records outside the pleadings, review materials which are properly submitted as part of the complaint, and review documents that are incorporated by reference in the Complaint if no party questions their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). In determining whether a complaint states a claim, the court may not look beyond the complaint to a plaintiff's moving papers, but the court may consider facts raised in opposition papers in determining whether leave to amend should be granted. See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003). If a Rule 12(b)(6) motion is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted where amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
I. KERN COUNTY DEFENDANTS *fn3
Defendants' Arguments The Kern County Defendants argue that the TAC fails to state any cognizable claims for several reasons. First, the claims are repetitive, fail to adequately identify defendants, do not contain any allegations against various county sub-entities, and is unduly ambiguous and confusing. Second, the TAC fails to identify any statute that imposes mandatory duties on public entities, yet public entities cannot be liable for common law negligence. Third, the Complaint fails to allege compliance with the claims presentation requirements of the Government Claims Act. *fn4 Finally, various immunities, including prosecutorial immunity, apply in this case.
Wilhite's arguments regarding the Kern County Defendants are not clear. Wilhite appears to argue that an August 31, 2010, claims letter to the City, a second claims letter to "all defendants" in April 2011, a letter sent to the Sheriff's office dated November 23, 2009, *fn5 two letters sent to the District Attorney's Office in December 2009, and telephone conversations with Assistant District Attorney Wilde in December 2009 and January 2010 all constitute sufficient claims presentation under the Government Claims Act. Wilhite also contends that the TAC contains adequate allegations against the County Defendants.
1. California Government Code § 900 et seq. -- California Government Claims Act As a prerequisite for filing a suit for "money or damages" against a public entity, the California Government Claims Act requires presentation of a claim to the public entity. See Cal. Gov. Code § 945.4; State of California v. Superior Court, 32 Cal.4th 1234, 1240-44 (2004) ("Bodde"). Lawsuits that seek monetary relief based on claims sounding in tort, as well as claims sounding in contract, are lawsuits for "money or damages." See City of Stockton v. Superior Court, 42 Cal.4th 730, 738 (2007); Sparks v. Kern County Bd. of Supervisors, 173 Cal.App.4th 794, 798 (2009). Claims relating to a cause of action for death or injuries to the person or injuries to personal property must be presented no later than six months after the accrual of the cause of action. See Cal. Gov. Code § 911.2(a); Bodde, 32 Cal.4th at 1239; Schmidt v. Southern Cal. Rapid Transit Dist., 14 Cal.App.4th 23, 25-26 (1993). The term "injury" means "death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings, or estate, of such nature that it would be actionable if inflicted by a private person." Cal. Gov. Code § 810.8; Holt v. Kelly, 20 Cal.3d 560, 564 n.4 (1978); Ovando v. County of Los Angeles, 159 Cal.App.4th 42, 63 n.7 (2008). The Government Claims statutes "must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim." City of Stockton, 42 Cal.4th at 738; City of San Jose v. Superior Court, 12 Cal. 3d 447, 455 (1974). "Timely claim presentation is not merely a procedural requirement, but is . . . a condition precedent to a plaintiff maintaining an action against [a public entity], and thus [is] an element of the plaintiff's cause of action." Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007); Bodde, 32 Cal.4th at 1240. Accordingly, the failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity. City of Stockton, 42 Cal.4th at 738; Bodde, 32 Cal.4th at 1239; Sparks, 173 Cal.App.4th at 738. In federal court, the failure to allege facts that either demonstrate or excuse compliance with the Government Claims statutes will subject a state law claim to dismissal. Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988).
Relatedly, California Government Code § 950.2 mandates that "a cause of action against a public employee . . . for injury resulting from an act or omission in the scope of his employment as a public employee is barred unless a timely claim has been filed against the employing public entity." Fowler v. Howell, 42 Cal.App.4th 1746, 1750 (1996). The California Legislature "included in the [Government] Claims Act what amounts to a requirement that . . . one who sues a public employee on the basis of acts or omissions in the scope of the defendant's employment [must] have filed a claim against the public-entity employer pursuant to the procedure for claims against public entities." Briggs v. Lawrence, 230 Cal. App. 3d 605, 612-13 (1991) (citing Cal. Gov. Code §§ 911.2, 945.4, 950.2, 950.6(a)). In federal court, the failure to allege compliance with the Government Claims statutes with respect to a public employee will subject state law claims to dismissal. Karim-Panahi, 839 F.2d at 627.
In presenting a claim to a public entity such as a city or a county, including an application to file a late claim, a plaintiff is required to either deliver the claim "to the clerk, secretary, or auditor" of the public entity, or mail the claim "to the clerk, secretary, auditor, or to the governing body at its principal office." Cal. Gov. Code § 915(a); Westcon Construction Corp. v. County of Sacramento, 152 Cal.App.4th 183, 200 (2007). Through the doctrine of substantial compliance, it is possible for a claim to be sent to the wrong person or entity, yet still satisfy § 915. See Westcon, 152 Cal.App.4th at 202; Life v. County of Los Angeles, 227 Cal.App.3d 894, 899 (1991). However, substantial compliance with § 915 requires that a misdirected claim be "actually received" by the appropriate person or board within the time prescribed for presentation of such a claim. See Cal. Gov. Code § 915(e)(1); Del Real v. City of Riverside, 95 Cal.App.4th 761, 769 (2002); Munoz v. State of California, 33 Cal.App.4th 1767, 1780 (1995). If a plaintiff does not comply with § 915, he cannot pursue his claims against a public entity. See Del Real, 95 Cal.App.4th at 770; Life, 227 Cal.App.3d at 901.
2. Fourteenth Amendment Due Process -- Medical Treatment
The Eighth Amendment's protections do not attach until after a person has been convicted and sentenced. See Graham v. Connor, 490 U.S. 386, 393 n.6 (1989); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). The Fourteenth Amendment's due process clause, and not the Eighth Amendment, applies to and protects pre-trial detainees with respect to medical treatment. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Jones, 781 F.2d at 771. Nevertheless, Eighth Amendment standards are utilized in evaluating the claims of pretrial detainees with respect to medical treatment. Simmons, 609 F.3d at 1017; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
A violation of the right to adequate medical care requires that a plaintiff show "that the officials acted with deliberate indifference in failing to respond to a serious medical need." Frost, 152 F.3d at 1130; see Simmons, 609 F.3d at 1017; Jones, 781 F.2d at 771. "A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). "Examples of conditions that are 'serious' in nature include an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). "Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment . . . . Mere negligence in diagnosing or treating a medical condition, without more, does not violate [the Constitution]." Lopez, 203 F.3d at 1131. "Where delay in receiving medical treatment is alleged, a prisoner must demonstrate that the delay led to further injury." McGuckin, 974 F.2d at 1059. The deliberate indifference must be substantial, and "authorities have wide discretion regarding the nature and extent of medical treatment." Jones, 781 F.2d at 771. "A prison official cannot be liable for deliberate indifference unless he or she knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Simmons, 609 F.3d at 1017.
3. 42 U.S.C. § 1983 - Monell Liability
Although municipalities may be liable under 42 U.S.C. § 1983 for
causing a constitutional deprivation, municipalities "cannot be held
liable solely because it employs a tortfeasor -- or, in other words, a
municipality cannot be held liable under [42 U.S.C. § 1983] under a
respondeat superior theory." Monell v. Department
of Soc. Servs., 436 U.S. 658, 690-91 (1978); Long v. County of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Ulrich v. City & County
of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002). Liability only
attaches where the municipality itself causes the constitutional
violation through "execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy." Monell, 436 U.S. at 694;
Ulrich, 308 F.3d at 984. A "policy" is a deliberate choice to follow a
course of action . . . made from among various alternatives by the
official or officials responsible for establishing final policy with
respect to the subject matter in question." Fogel v. Collins, 531 F.3d
824, 834 (9th Cir. 2008); Long, 442 F.3d at 1185. A "custom" for
purposes of municipal liability is a widespread practice that,
although not authorized by written law or express municipal policy, is
so permanent and well-settled as to constitute a custom or usage with
the force of law." St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988);
Los Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th
Cir. 1990); see also Bouman v. Block, 940 F.2d 1211, 231-32 (9th Cir.
1991). Stated differently, a custom is a widespread and longstanding
practice that "constitutes the standard operating procedure of the
local government entity." Trevino, 99 F.3d at 918. "Liability for
improper custom may not be predicated on isolated or sporadic
incidents; it must be founded upon practices of sufficient
duration, frequency and consistency that the conduct has become a
traditional method of carrying out policy." Id.
a. District Attorney's Office & Assistant District Attorney Valeta Wilde
Wilhite alleges that these defendants failed to take appropriate legal steps to protect her civil and legal rights despite her filing civil charges and her desire to press criminal charges against Pori. See TAC at ¶¶ 30, 49-52. Essentially, Wilhite complains that Wilde and the District Attorney's office refused to prosecute and pursue Wilhite's complaints. However, under federal law, a California district attorney is not subject to liability under 42 U.S.C. § 1983 for either a decision to prosecute or a decision not to prosecute. See Roe v. City & County of San Francisco, 109 F.3d 578, 583-84 (9th Cir. 1997). Similarly, under California law, "[a]cts by a public employee that are prepatory to a potential institution of judicial proceedings, including acts in the course of an investigation of alleged wrongdoing, are covered by [California Government Code § 821.6 immunity]." *fn6 All Angels Preschool/Daycare v. County of Merced, 197 Cal.App.4th 394, 407 (2011). "That employees ultimately decided against initiating . . . proceedings does not render section 821.6 inapplicable. . . . [the] decision whether to initiate such proceedings-whatever that decision is-is immunized." Jacqueline T. v. Alameda County Child Protective Services, 155 Cal.App.4th 456, 468 n. 5 (2007) (citing Ingram v. Flippo, 74 Cal.App.4th 1280, 1293 (1999)). Because Wilhite's claims against the District Attorney's office and Wilde are based on the failure to prosecute/initiate legal proceedings, Wilde and the District Attorney's office are entitled to immunity under state and federal law. See Roe, 109 F.3d at 583-84; Cal. Gov. Code §§ 815.2(b), *fn7 821.6; All Angles, 197 Cal.App.4th at 407; Jacqueline T., 155 Cal.App.4th at 468-69 & n.5. The claims against Wilde and the District Attorney's office will be dismissed without leave to amend and these Defendants will be dismissed from this case.
As the Court reads the TAC, Wilhite has alleged five state law causes of action against either Kern County entities or Kern County employees -- the Second, Third, Fourth, Tenth, and Sixteenth causes of action. *fn8 The alleged conduct of the Kern County entities and employees (excluding the District Attorney's office and Wilde) occurred between November 2 and November 5, 2009. See TAC ¶¶ 21-23, 31-35, 43-46, 116, 169-178. The claims against the County Defendants stem from either a failure to provide medical care and treatment to Wilhite, or the use of improper force against Wilhite. See id. Accordingly, the claims against the County Defendants constitute personal injury claims, which means Wilhite had six months, until at the latest April 5, 2010, in which to present a claim to Kern County. See Cal. Gov. Code § 911.2.
The only date identified in the TAC for compliance is April 11,
2011. See TAC at ¶ 12. However, the April 11, 2011, date is not
alleged in relation to the County Defendants. See id. Moreover, even
if the Court reads the April 11, 2011 date as applying to the County
Defendants, April 11, 2011 is beyond the six month deadline of April
5, 2010. Thus, the April 11, 2011 letter is untimely. *fn9
Because the Complaint does not contain allegations that
indicate timely claims presentation as to the County Defendants,
dismissal of all state law claims against the County Defendants is
appropriate. See Karim-Panahi, 839 F.2d at 627; City of Stockton, 42
Cal.4th at 738; Bodde, 32 Cal.4th at 1239.
With respect to the August 31, 2010 letter that Wilhite raises in opposition, Wilhite states that this letter was sent to the City. See Doc. No. 25 at p. 9:21-30. A copy of the letter also shows that it was addressed to the City Hall. See Doc. No. 33 at Ex. 1. However, the City of Bakersfield and the County of Kern are separate and distinct entities. Wilhite was required to either deliver or mail a claim to the Kern County clerk, secretary, auditor, or governing body.
See Cal. Gov. Code § 915(a). Sending her claim to the City of Bakersfield does not constitute claims presentation on the County of Kern. See id.; Del Real, 95 Cal.App.4th at 770. Moreover, even if the August 31, 2010 letter had been sent to the appropriate Kern County officer/body, August 31, 2010 is well beyond the April 5, 2010 deadline, and thus, is untimely. Therefore, the August 31, 2010 letter does not constitute a valid claim as to the County Defendants, and amendment on the basis of the August 31, 2010 letter would be futile.
With respect to the telephone calls to the District Attorney's office, these telephone calls are insufficient. First, the Government Claims Act requires that a written claim be presented to the public entity. See Gov. Code § 945.4; Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal.4th 441, 445 (2004). It goes without saying that a telephone conversation is not a written claim. Second, the telephone calls were not made to Kern County's clerk, secretary, auditor or governing body. See Cal. Gov. Code § 915(a); Del Real, 95 Cal.App.4th at 770. A claim must be presented to the individuals enumerated under Government Code § 915. See Del Real, 95 Cal.App.4th at 770. Thus, the telephone calls do not constitute valid claims, and amendment on the basis of the telephone calls would be futile.
With respect to the November 23, 2009 letter sent to the Sheriff's Office, this letter does not constitute a Government Claims Act claim. First, the letter was not sent to the Kern County clerk, secretary, auditor or governing body. See Cal. Gov. Code § 915(a); Del Real, 95 Cal.App.4th at 770. Second, the letter describes "Officer Maxwell" applying pain holds on Wilhite and mentions that a key chain was not returned to her. See Doc. No. 33 at Ex. 33. However, the letter only states that Wilhite wants Maxwell fired. See id. The letter does not meet the requirements of § 910, gives no indication that Wilhite is attempting to state a claim for money, does not mention medical treatment, and does not indicate that litigation will result if Wilhite's claims are not satisfactorily addressed. See Cal. Gov. Code § 910; Page v. Mira Costa Comm. Coll. Dist., 180 Cal.App.4th 471, 493 (2009); Del Real, 95 Cal.App.4th at 770; Doc. No. 33 at Ex. 33. For these reasons, the November 23, 2009, letter to the Sheriff's Office does not constitute a valid Government Claims Act claim, and amendment on the basis of the November 23, 2009, letter would be futile.
With respect to the two letters sent to the District Attorney's office in December 2009, these letters do not constitute a claim. First, the letters were not sent to the Kern County clerk, secretary, auditor or governing body. See Cal. Gov. Code § 915(a); Del Real, 95 Cal.App.4th at 770. Second, the letters do not meet the requirements of § 910, give no indication that they are attempting to state a claim for money, and do not indicate that litigation will result if Wilhite's claims are not satisfactorily addressed. See Cal. Gov. Code § 910; Page, 180 Cal.App.4th at 493; Del Real, 95 Cal.App.4th at 770; Doc. No. 33 at Exs. 52A, 52B. The first letter describes the attack against Wilhite by Pori, describes Wilhite's injuries, and states that Wilhite wants to press criminal charges against Pori. See Doc. No. 33 at Ex. 52A. The second letter is lengthier but is in the same vein: Wilhite describes her injuries, states that she wishes to pursue claims against Pori, puts forth explanations as to why Pori attacked her, and describes how her outlook on life has changed. See Doc. No. 33 at Ex. 52B. The letters nowhere indicate that monetary damages against public entities or public employees are at issue, do not complain about the absence of adequate medical care, and do not discuss excessive force by public employees. See Doc. No. 33 at Exs. 52A, 52B; cf. Page, 180 Cal.App.4th at 493. For these reasons, the December 2009 letters to the District Attorney do not constitute a valid Government Claims Act claim, and amendment on the basis of the December 2009 letters would be futile.
Finally, Wilhite cites Government Code § 911.6(b)(3) and states, "plaintiff was physically or mentally incapacitated by the alleged injury, damage and loss sustained during all of the time specified in § 911.2 for the presentation of the claim and by reason of such disability failed to present a claim during such time." Doc. No. 30 at 9:12-16. Government Code § 911.6(b)(3) requires a public entity's governing board to grant a request to file a late claim where the claimant was physically or mentally incapacitated during the relevant limitations period, and because of that disability failed to present a timely government claim. See Cal. Gov. Code § 911.6(b)(3).
However, citation to § 911.6(b)(3) does not help Wilhite for several reasons. First, § 911.6(b) addresses the circumstances in which a public entity must grant a claimant permission to present a late claim; it does not deal with filing a timely claim under § 911.2. See id. Second, there is no evidence that Wilhite has submitted any requests to file late claims with respect to the County Defendants. *fn10 Wilhite has relied heavily on two letters throughout her opposition, the August 2010 letter and the April 2011 letter, but these letters are inadequate. Neither the August 2010 letter nor the April 2011 letter requests permission to file a late claim, neither letter contends that Wilhite was incapacitated, and neither letter explains why the letters were being presented on late dates. Cf. Doc. No. 33 at Exs. 1, 2 with Cal. Gov. Code § 911.4. The Court is aware of no other documents or letters that could arguably constitute a late claims request as to the County Defendants. Third, the exhibits that Wilhite has submitted do not indicate that she was incapacitated for a material period of time. The December 28, 2009, letter to the District Attorney states that Wilhite was in a wheelchair for 3 1/2 weeks after Pori's attack. See Doc. No. 33 at Ex. 52B. However, other exhibits indicate that Wilhite has remained active relative to this litigation by composing correspondences as early as November 19, 2009, see Doc. No. 33 at Ex. 32, making communications to defendants and entities, and attempting to pursue civil judicial proceedings. At the very best, the evidence suggests incapacitation for a period of 3 to 4 weeks, but no longer. A 3 to 4 week tolling period would not sufficiently affect the deadlines of either § 911.2 or § 911.4. *fn11 Fourth, in a document entitled "Petition for Declaratory Relief of Plaintiff's Compliance To Provisions of Govt Code § 945.4," Wilhite nowhere explains or contends that she suffered incapacitation. See Doc. No. 28. For these reasons, Wilhite's contentions regarding incapacitation are not persuasive, and amendment based on such contentions would be futile.
In sum, the TAC fails to allege compliance with the claims presentation requirements of the California Government Claims Act. The arguments and exhibits presented do not indicate that Wilhite has complied the Government Claims Act with respect to the County Defendants, and the Court sees no way for Wilhite to allege timely compliance. Accordingly, dismissal of the five state law causes of action against the County Defendants without leave to amend is appropriate. *fn12
There are two 42 U.S.C. § 1983 causes of action alleged against the County Defendants -- the thirteenth and fourteenth causes of action. The ...