Garza v. Alvara

          FINDINGS AND RECOMMENDATION THAT DEFENDANT'S MOTION TO DISMISS THE COMPLAINT BE GRANTED IN PART OBJECTIONS DUE: 15 DAYS (DOC. 47)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Plaintiff 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).)

         On May 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.

         For the reasons that follow, it is RECOMMENDED that Defendant's motion be GRANTED IN PART.

         II. FACTUAL BACKGROUND ^[1]

         Plaintiff 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.)

         CDCR 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.)

         Plaintiff 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).

         On July 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).)

         Plaintiff 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.) //

         III. JUDICIAL NOTICE

         A court 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).

         Defendants 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.

         IV. MOTION TO DISMISS STANDARD

         A 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)).

         To 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). Further,

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 allegations.

Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011) (internal citations omitted) (emphases in original).

         In 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).

         In 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 ...