The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On November 2, 2012, defendant filed a motion for extension of time to file a responsive pleading, and on November 6, 2012, defendant filed a motion to dismiss. Good cause appearing, defendant's motion for extension of time is granted.
Defendant moves to dismiss plaintiff's state law claim because plaintiff failed to timely present his tort claim under the California Government Claims Act, and to dismiss plaintiff's claim for injunctive relief, because plaintiff is a member of Perez v. Tilton, No. 3:05-cv-05241 (N.D. Cal.), and Plata v. Brown, No. 3:01-cv-01351 (N.D. Cal.) Plaintiff filed an opposition, and defendant filed a reply. As set forth more fully below, the court finds that defendant's motion to dismiss should be granted in part, but denied insofar as this action will proceed on plaintiff's Eighth Amendment claim against defendant.
II. Plaintiff's Complaint
In his original complaint, plaintiff, who has hemophilia, alleges that defendant was deliberately indifferent to plaintiff's serious medical needs, and committed medical malpractice, by performing oral surgery on plaintiff without taking proper precautions, resulting in plaintiff almost bleeding to death while he waited over fifteen hours for medical treatment. (Dkt. No. 1 at 3.) Plaintiff seeks compensatory damages, and seeks injunctive relief requiring the California Department of Corrections and Rehabilitation ("CDCR") to hire doctors, dentists, and medical and dental staff who are educated and mentally stable. (Id.)
III. Motion to Dismiss A. Legal Standard for Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
B. California Tort Claims Act
Defendant contends that plaintiff failed to timely submit a tort claim. Plaintiff contends he submitted a tort claim form, and provides copies of the documents he sent and received. (Dkt. No. 21 at 1.) In reply, defendant argues that plaintiff's claim was not deemed presented because he did not timely submit the $25.00 filing fee or a fee waiver request, and plaintiff's application to represent a late claim was denied.*fn1
Under the California Tort Claims Act ("CTCA"), set forth in California Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public employee or entity unless the plaintiff first presented the claim to the California Victim Compensation and Government Claims Board ("VCGCB" or "Board"), and the Board acted on the claim, or the time for doing so expired. "The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity." Munoz v. California, 33 Cal. App. 4th 1767, 1776 (1995). The purpose of this requirement is "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974) (citations omitted). Compliance with this "claim presentation requirement" constitutes an element of a cause of action for damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1244 (2004). Thus, in the state courts, "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." Id. at 1239 (fn. omitted).
Consistently, federal courts require compliance with the CTCA for pendant state law claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir. 1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if the claims were first presented to the state in compliance with the claim presentation requirement. United States v. California, 655 F.2d 914, 918 (9th Cir. 1980); ...