United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. Defendant Chen moves to
dismiss plaintiff's claim against him under the
California Government Claims Act for failure to exhaust the
California tort claim procedures. ECF No. 24. For the reasons
stated hereafter, that motion should be granted.
April of 2015, plaintiff was involved in a physical
altercation at CSP-Solano that resulted in a fracture to his
arm. ECF No. 15 at 2. He alleges defendant Chen denied him
adequate medical care for this injury insofar as Chen failed
to immediately refer him to an emergency room. Id.
at 3. In addition to alleging that Chen's inaction
violated his Eighth Amendment rights, plaintiff also brought
a California Government Claims Act (“CGCA”) claim
against the physician. Id. at 7. Now, Chen moves to
dismiss arguing that plaintiff's CGCA claim should be
dismissed because plaintiff failed to comply with the
procedural requirements of the Act. ECF No. 24-1 at 3-4.
complaint may be dismissed under that rule for “failure
to state a claim upon which relief may be granted.”
Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss for
failure to state a claim, a plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). The
plausibility standard is not akin to a “probability
requirement, ” but it requires more than a sheer
possibility that a defendant has acted unlawfully.
Iqbal, 556 U.S. at 678.
purposes of dismissal under Rule 12(b)(6), the court
generally considers only allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice, and construes all
well-pleaded material factual allegations in the light most
favorable to the nonmoving party. Chubb Custom Ins. Co.
v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir.
2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
under Rule 12(b)(6) may be based on either: (1) lack of a
cognizable legal theory, or (2) insufficient facts under a
cognizable legal theory. Chubb Custom Ins. Co., 710
F.3d at 956. Dismissal also is appropriate if the complaint
alleges a fact that necessarily defeats the claim.
Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th
pleadings are held to a less-stringent standard than those
drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
93 (2007) (per curiam). However, the Court need not accept as
true unreasonable inferences or conclusory legal allegations
cast in the form of factual allegations. See Ileto v.
Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing
Western Mining Council v. Watt, 643 F.2d 618, 624
(9th Cir. 1981)).
well-settled that state procedural requirements apply to
state claims that are litigated in federal court. See
Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d
621, 627 (9th Cir. 1988) (“The amended complaint fails
to allege compliance with California tort claim procedures.
The district court properly dismissed the state law tort
claims.”). The CGCA requires that a tort claim against
a public entity or its employees be presented to the
California Victim Compensation and Government Claims Board
within six months after the cause of action accrues. Cal.
Gov't Code §§ 905.2, 910, 911.2, 945.4,
950-950.2. That presentation and subsequent action on the
claim by the board are prerequisites to suit. State v.
Superior Court of Kings County (Bodde), 32 Cal.4th 1234,
1239 (2004). Plaintiff is required to allege compliance with
the CGCA presentation requirements in his complaint.
Id. He failed to do so. Indeed, plaintiff
acknowledges as much in his opposition. ECF No. 40 at 1-2.
Accordingly, his CGCA claims against Chen must be dismissed;
his Eighth Amendment claims against Chen remain.
foregoing reasons, IT IS RECOMMENDED that:
Defendant Chen's motion to dismiss (ECF No. ...