The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS STATE LAW CLAIMS (Doc. 28.) ORDER DISMISSING PLAINTIFF'S STATE LAW CLAIMS FROM THIS ACTION, WITH PREJUDICE, FOR FAILURE TO COMPLY WITH CALIFORNIA'S TORT CLAIMS ACT ORDER FOR THIS ACTION TO PROCEED ONLY ON PLAINTIFF'S CLAIM FOR EXCESSIVE FORCE UNDER THE EIGHTH AMENDMENT
I. RELEVANT PROCEDURAL HISTORY
Jawwaad Hasan ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's original Complaint filed on March 17, 2008, against defendant B. Johnson ("Defendant") for use of excessive physical force in violation of the Eighth Amendment, and state law claims.*fn1 (Doc. 1.)
The parties to this action have consented to Magistrate Judge jurisdiction pursuant to U.S.C. § 636(c), and on March 19, 2010, this case was reassigned to the undersigned for all further proceedings in this case, including trial and entry of final judgment. (Docs. 7, 14, 26.)
On June 20, 2011, Defendant filed a motion to dismiss Plaintiff's state law claims for failure to comply with California's Tort Claims Act ("CTCA"). (Doc. 28.) On November 21, 2011, Plaintiff filed an opposition to the motion. (Doc. 29.) Defendant did not file a reply. Defendant's motion to dismiss is now before the Court.
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS
The events at issue allegedly occurred at the California State Prison-Solano ("CSP-Solano") in Vacaville, California, when Plaintiff was incarcerated there. Defendant Johnson was a correctional officer employed at CSP-Solano at the time of the events at issue.
Plaintiff alleges as follows in the Complaint. On March 22, 2006, Plaintiff was escorted to Administrative Segregation. Plaintiff was being placed in Administrative Segregation pending a disciplinary charge against him for threatening staff. (Compl., ¶12.) Plaintiff, in handcuffs, was escorted by Defendant Johnson and C/O Gonzalez. Id. Defendant Johnson, holding Plaintiff by the handcuffs, "without just cause, justification, provocation or good cause or reason, violently jerked the handcuffs, twisted them by the left side of the handcuffs, and thrusted plaintiffs' handcuffs upward thereby forcing plaintiff to walk on his toes." (Compl., ¶13.) Upon reaching the rotunda area, Defendant Johnson "grabbed plaintiff and violently propelled him across the rotunda slamming plaintiff into another wall, and continued to slam plaintiff into walls thereon opposite sides of the rotunda back and forth for several minutes. Plaintiff's head was slammed into the walls several times during this beating episode carried out by defendant Johnson." (Compl., ¶14.) Plaintiff seeks monetary damages as relief.
Plaintiff brings a claim against Defendant Johnson for use of excessive force in violation of the Eighth Amendment of the United States Constitution. Plaintiff also brings state law claims, claiming that Defendant Johnson's conduct violated Article 1, § 7(a) and Article 1, § 17 of the California Constitution. Article 1, § 7(a) , provides, in part, that "[a] person may not be deprived of life, liberty, or property with due process of law or denied equal protection of the laws," and Article 1, § 17 provides, in part, that "[c]ruel or unusual punishment may not be inflicted." Cal. Const. Art. 1, §§ 7, 17.
III. MOTION TO DISMISS -- FAILURE TO COMPLY WITH CALIFORNIA'S TORT CLAIMS ACT
Defendant Johnson brings a motion to dismiss Plaintiff's state law claims pursuant to Rule 12(b)(6), based on Plaintiff's failure to comply with the CTCA before filing this lawsuit and, in the alternative, because there is no private right of action under Article 1 § 7(a) or Article I, § 17 of the California Constitution.
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). However, the court may properly consider matters subject to judicial notice and documents incorporated by reference in the pleading without converting the motion to dismiss to one for summary judgment. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Here, Defendant requests the Court to take judicial notice of the declaration of James Reinmiller, Custodian of Records of the Government Claims Program at the California Victim Compensation and Government Claims Board ("Board"), dated March 2, 2011, attesting that he conducted a records search in the ordinary course of business and was unable to locate any claims submitted to the Board by Jawwaad M. Hasan, H84717, regarding an incident on March 22, 2006. The declaration is an official public record and its ...