(PC) Washington v. Gamboa, et al., No. 1:2017cv00302 - Document 36 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 33 Defendants' Motion for Judgment on the Pleadings be GRANTED and the State Law Claims Alleged in this Action be DISMISSED re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 5/1/2018. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JESSE WASHINGTON, 10 11 12 Case No. 1:17-cv-00302-DAD-EPG (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS BE GRANTED v. H. GAMBOA and R. ROQUE, 13 Defendants. (ECF No. 33) 14 FOURTEEN (14) DAY DEADLINE 15 16 I. BACKGROUND 17 Jesse Washington (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds against 19 Defendants H. Gamboa and R. Roque on Plaintiff’s claims for retaliation in violation of the First 20 Amendment and state law claims for deprivation of property. (ECF Nos. 11, 13). 21 On March 8, 2018, Defendants filed a motion for judgment on the pleading as to any and 22 all state law claims asserted in the Complaint. (ECF No. 33). Defendants contend that Plaintiff 23 failed to comply with the mandatory claims presentation requirement contained in California 24 Government Code § 900 et seq. before commencing the action on March 3, 2017. On March 23, 25 2018, Plaintiff filed a statement of non-opposition to Defendants’ motion. (ECF No. 35). 26 II. LEGAL STANDARD 27 Federal Rule of Civil Procedure 12(c) permits a party to seek judgment on the pleadings 28 “after the pleadings are closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). “A 1 1 Rule 12(c) motion challenges the legal sufficiency of the opposing party’s pleadings and 2 operates in much the same manner as a motion to dismiss under Rule 12(b)(6).” Morgan v. Cty. 3 of Yolo, 436 F. Supp. 2d 1152, 1154–55 (E.D. Cal. 2006), aff'd, 277 F. App'x 734 (9th Cir. 4 2008). A court evaluating a Rule 12(c) motion must determine whether the facts alleged in the 5 complaint, taken as true, entitle the plaintiff to a legal remedy. Chavez v. United States, 683 F.3d 6 1102, 1108 (9th Cir. 2012) (internal quotation marks and citation omitted). “Judgment on the 7 pleadings is properly granted when [, accepting all factual allegations in the complaint as true,] 8 there is no issue of material fact in dispute, and the moving party is entitled to judgment as a 9 matter of law.” Id. (quoting Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.2009)). 10 III. DISCUSSION 11 In his Complaint, Plaintiff alleges that on March 14, 2016, H. Gamboa and R. Roque 12 conducted a search of his cell, took eight CDs and one legal mail priority box, and left his legal 13 property in disarray. (ECF No. 1 at 8-9). 14 Defendants contend that the state law claims must be dismissed because Plaintiff did not 15 timely present a claim for money or damages with the California Victim Compensation and 16 Government Claims Board, and does not allege compliance with the requirement to do so. 17 The California state legislature has provided a remedy for tort claims against public 18 officials in the California Government Code, §§ 900, et seq. A tort claim against the state or state 19 employees must be presented to the California Victim Compensation and Government Claims 20 Board no later than six months after the cause of action accrues. Cal. Govt. Code §§ 910, 911.2, 21 945.4, 950, 950.2.; State v. Superior Court of Kings County (Bodde), 32 Cal. 4th 1234, 1245 22 (2004); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim– 23 Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Conditions precedent to 24 suit against a public employee include presentation of a written claim and action on or rejection 25 of the claim and alleging compliance with the Government Claims Act. “[A] plaintiff must allege 26 facts demonstrating or excusing compliance with the claim presentation requirement” or be 27 “subject to a general demurrer for failure to state facts sufficient to constitute a cause of action,” 28 State v. Superior Court (Bodde), 32 Cal.4th at 1243. 2 1 Here, Plaintiff does not allege compliance with the Government Claims Act in his 2 Complaint. Moreover, Plaintiff has filed a statement of non-opposition to the instant motion. 3 According, the Court recommends that Defendants’ motion for judgment on the pleadings as to 4 all state law claims be granted in its entirety. 5 IV. CONCLUSION AND RECOMMENDATION 6 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion for 7 judgment on the pleadings, (ECF No. 33), be granted, and the state law claims alleged in this 8 action be dismissed. 9 These findings and recommendations will be submitted to the United States district judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 11 (14) days after being served with these findings and recommendations, the parties may file 12 written objections with the Court. The document should be captioned “Objections to Magistrate 13 Judge’s Findings and Recommendations.” 14 The parties are advised that failure to file objections within the specified time may result 15 in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 16 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19 20 Dated: May 1, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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