Opinion
Case No. 1:14-cv-01411 -LJO-MJS (PC)
07-30-2015
JAMES WASHINGTON, Plaintiff, v. M. BITER, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATION TO
(1) GRANT DEFENDANTS' MOTION FOR PARTIAL DISMISSAL, AND
(2) GRANT DEFENDANTS' REQUEST FOR JUDICIAL NOTICE
(ECF No. 36)
CASE TO REMAIN OPEN
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On July 13, 2015, the Magistrate Judge issued findings and recommendations to grant Defendants' motion for partial dismissal and request for judicial notice. (ECF No. 36.) After the findings and recommendations issued, Plaintiff filed an unauthorized sur-reply. (ECF No. 39.) He also filed objections, which referred to the sur-reply. (ECF No. 40.) Both the sur-reply and objections are considered herein.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
The Magistrate Judge recommended dismissal of Plaintiff's state law claims because Plaintiff failed to file a claim with the California Victim Compensation and Government Claims Board (VCGCB) before filing suit, as required under the California Tort Claims Act. Plaintiff's sur-reply and objections state that he properly presented his state law claims by attempting to file an administrative grievance within the prison grievance system. Plaintiff's contentions are without merit. Compliance with prison grievance procedures does not satisfy the requirements of the California Tort Claims Act. Cal. Gov't Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). Plaintiff's state law claims must be dismissed.
Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the findings and recommendations (ECF No. 36), filed July 13, 2015, in full;IT IS SO ORDERED.
2. Defendants' motion for partial dismissal (ECF No. 25) is GRANTED;
3. Defendants' request for judicial notice (ECF No. 26) is GRANTED;
4. Plaintiff's state law claims are DISMISSED with prejudice;
5. The case shall remain open for further proceedings on Plaintiff's Eighth Amendment claims against Defendants Gomez and Swanson; and
6. Defendants shall file a responsive pleading as to the remaining claims within fourteen (14) days of the date of this order.
Dated: July 30 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE