The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS R E C O M M E N D I N G G R A N T I N G DEFENDANTS' MOTION TO DISMISS STATE LAW CLAIMS (ECF Nos. 28, 36, 37) OBJECTIONS DUE WITHIN THIRTY-DAYS
Plaintiff Warner Livingston is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint, filed June 25, 2012, against Defendants Ayon and Sanchez for excessive force in violation of the Eighth Amendment and assault and battery in violation of state law. On April 12, 2012, Defendants filed a motion to dismiss Plaintiff's state law claims for failure to comply with the Government Tort Claims Act. (ECF No.
28.) After receiving an extension of time, Plaintiff filed an opposition on June 18, 2012, and Defendants filed a reply on June 20, 2012. (ECF Nos. 36, 37.)
II. Complaint Allegations
Plaintiff claims that on January 25, 2008, after a verbal altercation, he went prone on the ground as commanded. Plaintiff alleges that Defendant Sanchez got on his back and began pepper spraying him, and Defendant Ayon began banging Plaintiff's head on the ground. (Compl. 3,*fn1 ECF No. 1.) Plaintiff was then dragged by the legs out of his cell. (Id. at 4.) On or about March 30, 2009, Plaintiff filed a claim pursuant to the provisions of the California State Tort Claims Act. (Id. at 5.)
In considering a motion to dismiss for failure to state a claim, the court generally considers only the pleadings and must accept as true the allegations in the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Shaver v. Operating Engineers Local 428 Pension Trust Fund, 332 F.3d 1198, 1201, 1203 (9th Cir. 2002). A court may consider evidence that the complaint relies on, where the complaint refers to a document that is central to the complaint and no party questions the authenticity of the document. Marder, 450 F.3d at 448; see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Additionally, the court is to "construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir. 2010). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hebbe, 627 F.3d at 342.
A motion to dismiss for failure to state a claim is properly granted where the complaint lacks "a cognizable legal theory" or "sufficient facts alleged under a cognizable legal theory." Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988)). There are two requirements to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). While accepting factual allegations in the complaint as true, the court is not required to accept legal conclusions as true, and the factual allegations must state a plausible claim for relief. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).
Defendants move to dismiss Plaintiff's state law assault and battery claims because Plaintiff failed to file a timely claim with the Victim Compensation and Government Claims Board ("Board") prior to filing suit. (Memorandum of Points and Authorities in Support of Motion to Dismiss 2, ECF No. 28-1.) In order to bring the assault and battery claims, Plaintiff was required to file a complaint with the Board within six months of the incident alleged, and under no circumstance can the claim be submitted more than a year after the date of the incident. (Id. at 5.) The incidents alleged in Plaintiff's complaint occurred on January 25, 2008, but Plaintiff did not file his claim with the Board until March 30, 2009, one year and two months later. (Id. at 6.) Defendants argue that Plaintiff's assault and battery claims should be dismissed for failure to state a claim.
Plaintiff opposes the motion on the grounds that he is not required to comply with the California Torts Claims Act to exhaust his administrative remedies. Defendants do not contend that Plaintiff's administrative remedies were not exhausted and that is all that is required to properly exhaust his claims under the Prison Litigation Reform Act ("PLRA"). (Id. at 2.) Plaintiff complied with the exhaustion requirement under the California Code of Regulations Section 3084.7(d)(C)(3). Plaintiff contends ...