United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT DEFENDANT'S
MOTION TO DISMISS THE COMPLAINT BE GRANTED IN PART OBJECTIONS
DUE: 15 DAYS (DOC. 47)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Fernie Garza, a state prisoner represented by counsel, filed
this civil rights action pursuant to 42 U.S.C. § 1983 on
February 10, 2015. This action is proceeding on
Plaintiff's first amended complaint against Defendants
Lieutenant J. Alavara, Captain D. Roberts, Correctional
Counselor E. Alva, Correctional Counselor S. Torres, Social
Worker N. Barksdale, Chief Medical Officer P. Virk, M.D., N.
Malakkla, M.D., W. Zhang, M.D., K. Toor, M.D., and Ricki
Barnett, M.D., at California Correctional Institution
("CCI"), for violation of the Eight and Fourteenth
Amendments. (Doc. 31 (Amended Complaint).)
5, 2016, Defendants filed a motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc.
47.) Plaintiff filed his opposition on June 1, 2016, and
Defendants filed their reply on June 8, 2016. (Docs. 52;
53-54.) On June 13, 2016, the Court ordered the parties to
submit supplemental briefing addressing the issue of the
viability, or futility, of transferring to the state superior
court Plaintiff's Petition for an order pursuant to Cal.
Gov't Code § 946.6. (Doc. 55.) Plaintiff filed his
supplemental brief on June 16, 2016, and Defendants filed
their supplemental brief on June 21, 2016.
reasons that follow, it is RECOMMENDED that Defendant's
motion be GRANTED IN PART.
FACTUAL BACKGROUND 
is a ward of the state in the custody of the California
Department of Corrections and Rehabilitation
("CDCR"), residing at Valley State Prison
("VSP"). (Doc. 31 (Amended Complaint), ¶ 12.)
Inmate Tourdot, another inmate at VSP, . . .
was known to Defendants to be mentally unfit for assignment
to the general population at the institution where Plaintiff
was assigned. Tourdot was known to be unpredictable, violent,
and a threat to the safety of inmate and staff, and to the
good order of the institution. Tourdot was a participant in
the Mental Health Services Delivery System in the
Correctional Clinical Case Management System.
(Id., ¶ 28.) In spite of this knowledge,
Tourdot was assigned to Plaintiff's housing unit, housed
with Plaintiff, and shared a bunk with Plaintiff.
(Id., ¶¶ 29-30.)
On January 2, 2014, Tourdot
. . . attacked Plaintiff and bit down hard on Plaintiff's
nose. The force of the bite was sufficient to penetrate
through the skin, tissue, muscle, and cartilage forcing the
removal of a large part of Plaintiff's nose and causing a
serious disfigurement to Plaintiff's face.
(Id., ¶ 31.) Tourdot was then reassigned to
Administrative Segregation and criminally charged with
battery by local prosecutors. (Id., ¶ 32.)
staff treated Plaintiff for the wound. (Id., ¶
33.) When Plaintiff requested reconstructive surgery, the
request was denied as "unnecessary." (Id.)
After Plaintiff retained counsel, however, the denial was
reversed and reconstructive surgery was arranged.
(Id., ¶ 35.) The process required more than one
surgery, however, and when the surgeon scheduled a follow-up
surgery, "DOE CME refused to allow it, and then, after
further pressure was applied, agreed to allow it, but caused
numerous delays of approximately nine months."
(Id.) Plaintiff alleges he "sunk into despair
and depression" as a result of "the possibility of
living the rest of his life with a disfigured face, "
was treated by mental health staff "as a crisis
intervention due to this traumatic event, " and that the
"denials and delays caused [him] to suffer needlessly
both physically and emotionally." (Id.)
alleges Defendants J. Alvara, D. Roberts, E. Alva, S. Torres,
and N. Barksdale "made, joined in, agreed with, or
ratified the decision to house Plaintiff and Tourdot
together" with deliberate indifference to
Plaintiff's personal safety (id., ¶¶
29, 31), and that Defendants P. Virk, M.D., N. Malakkla,
M.D., W. Zhang, M.D., K. Toor, M.D., and Ricki Barnett, M.D.,
"made, joined in, agreed with, or ratified the decision
to deny surgery to Plaintiff" (id., ¶ 33).
11, 2014, Plaintiff presented by mailing to the Victim
Compensation and Government Claims Board (the
"Board") claims to the clerk for the injuries,
disability, losses, and damages suffered as a result of the
incident. (Am. Compl., ¶ 8.) On October 24, 2014, the
Board mailed a letter notice to Plaintiff of the Board's
rejection of his claims in their entirety as
"late." (Id., ¶ 9.) Without conceding
his claim was late, Plaintiff filed his Petition for an Order
to Be Relieved of the Presentment Requirements as part of the
original Complaint. (Id., ¶ 10; see
also Doc. 1-2 (Plaintiff's Petition).)
alleges he "discover[ed] how Defendants were
liable" in assigning Tourdot to the general population
and leaving him in a position to attack Plaintiff on January
24, 2014, when Plaintiff overheard medical staff discussing
his case. (Pl.'s Pet., p. 3.) He contends his claim did
not accrue until January 24, 2014, and his July 11, 2014,
mailed claim was timely and in compliance with the
requirements of Cal. Govt. Code, Section 905. (Id.)
may take judicial notice of an adjudicative fact, which
"must be one not subject to reasonable dispute in that
it is either (1) generally known . . . (2) or capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned." Fed.R.Evid.
201. A court's consideration of documents either attached
to a complaint or incorporated by reference, or of matters of
judicial notice, will not convert a motion to dismiss into a
motion for summary judgment. Ritchie, 342 F.3d at
907-08. "A district court ruling on a motion to dismiss
may consider a document the authenticity of which is not
contested, and upon which the plaintiff's complaint
necessarily relies." Parrino v. FHP, Inc., 146
F.3d 699, 706 (9th Cir. 1998), superseded by statute on
other grounds as recognized in Abrego Abrego v. The Dow Chem.
Co., 443 F.3d 676, 681 (9th Cir. 2006). The Ninth
Circuit has explained such reliance is permissible when
"plaintiff's claim depends on the contents of a
document" that is not attached to the complaint.
Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.
2005); see also Swartz v. KPMG LLP, 476 F.3d 756,
763 (9th Cir. 2007) (court may consider document if
authenticity not questioned in order to prevent plaintiff
from prevailing on Rule 12(b)(6) motion by omitting documents
underlying a claim).
request the Court take judicial notice of the legislative
history for California Gov't Code § 946.6, and
attach a copy to their request. (Doc. 54.) Plaintiff has not
opposed their request, and the authenticity of these
documents is not in question. The court may consider these
filings, as their authenticity is undisputed, and the ongoing
state court proceedings are essential to Plaintiff's
claims. The court takes judicial notice as requested.
MOTION TO DISMISS STANDARD
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
legal 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); Huynh v. Chase Manhattan
Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006);
Schneider v. California Dept. of Corr., 151 F.3d
1194, 1197 n.1 (9th Cir. 1998). Courts may not supply
essential elements not initially pled, Litmon v.
Harris, 768 F.3d 1237, 1241 (9th Cir. 2014), and
"‘conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss for
failure to state a claim, '" Caviness v. Horizon
Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir.
2010) (quoting Epstein v. Wash. Energy Co., 83 F.3d
1136, 1140 (9th Cir. 1996)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (quotation marks
omitted); Conservation Force, 646 F.3d at 1242;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The Court must accept the well-pleaded factual
allegations as true and draw all reasonable inferences in
favor of the non-moving party. Daniels-Hall, 629
F.3d at 998; Sanders, 504 F.3d at 910;
Huynh, 465 F.3d at 996-97; Morales v. City of
Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).
If there are two alternative explanations, one advanced by
defendant and the other advanced by plaintiff, both of which
are plausible, plaintiff's complaint survives a motion to
dismiss under Rule 12(b)(6). Plaintiff's complaint may be
dismissed only when defendant's plausible alternative
explanation is so convincing that plaintiff's explanation
is implausible. The standard at this stage of the
litigation is not that plaintiff's explanation must be
true or even probable. The factual allegations of the
complaint need only "plausibly suggest an entitlement to
relief." . . . Rule 8(a) "does not impose a
probability requirement at the pleading stage; it simply
calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence" to support the
Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir.
2011) (internal citations omitted) (emphases in original).
practice, "a complaint . . . must contain either direct
or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable
legal theory." Twombly, 550 U.S. at 562. To the
extent that the pleadings can be cured by the allegation of
additional facts, the plaintiff should be afforded leave to
amend. Cook, Perkiss and Liehe, Inc. v. Northern
California Collection Serv. Inc., 911 F.2d 242, 247 (9th
Cir. 1990) (citations omitted).
resolving a 12(b)(6) motion, a court's review is
generally limited to the operative pleading.
Daniels-Hall, 629 F.3d at 998; Sanders, 504
F.3d at 910; Schneider v. California Dept. of Corr.,
151 F.3d 1194, 1197 n.1 (9th Cir. 1998). However, the court
may also 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), see also, Durning v. First Boston
Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (court may
consider facts established by exhibits attached to the
complaint), Mullis v. United States Bankruptcy Ct.,
828 F.2d 1385, 1388 (9th Cir. 1987) (facts which may ...