1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID HAMILTON, No. 2:23-cv-01342 DJC SCR P 12 Plaintiff, 13 v. ORDER AND FINDINGS &

RECOMMENDATIONS

14 L. ABLES, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Before the undersigned is defendants’ Rule 12(b)(6) motion to dismiss plaintiff’s state law 19 negligence claim for failure to meet the requirements of the California Government Claims Act. 20 (ECF No. 18.) For the reasons set forth below, the undersigned recommends that defendants’ 21 motion be denied. 22 PROCEDURAL BACKGROUND 23 I. Plaintiff’s First Amended Complaint 24 Plaintiff filed the operative first amended complaint (“FAC”) in Amador County Superior 25 Court on January 28, 2023, alleging violations of his constitutional rights and state law 26 negligence claims against four defendants. (ECF No. 1 at 7-20.) The events underlying the FAC 27 arose out of an incident that took place on January 13, 2021, at Mule Creek State Prison 28 (“MCSP”). (Id. at 10.) Plaintiff alleges that he was sitting in front of his cell upstairs while two 1 inmates were fighting downstairs. Defendant Ables then hit him with two 40 mm rounds while 2 attempting to break up the fight. Plaintiff states he was not involved in the fight. (Id.) 3 Relevant to defendant’s motion, plaintiff checked a box on the FAC indicating his 4 compliance with applicable claims statutes, adding: “Pleads exhaustion of remedies; diligently 5 sought and filed Gov. claims with ORIM1 on 5-25-21 and 10-26-21 follow up to confirm it was 6 received.” (ECF No. 1 at 8.) 7 II. Removal to Federal Court and Screening of FAC 8 On July 10, 2023, defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441(a) 9 and 1446, removing the action to this federal district court. (ECF No. 1.) On March 5, 2024, 10 Judge Barnes, the previously assigned magistrate judge, determined the court had federal question 11 jurisdiction over plaintiff’s FAC and exercised supplemental jurisdiction over its state law claims. 12 (ECF No. 10 at 2-3.) Judge Barnes then screened the FAC under 28 U.S.C. § 1915A and found it 13 stated an Eighth Amendment excessive force claim and a state law negligence claim against 14 defendant Ables, but no other cognizable claims.2 (Id. at 5-9.) Plaintiff elected to proceed on his 15 cognizable claims and voluntarily dismiss the remaining defendants and claims. (ECF No. 11.) 16 DEFENDANT’S MOTION TO DISMISS 17 I. Defendant’s Motion 18 Defendant Ables raises two arguments in his motion to dismiss. First, defendant argues 19 that the FAC fails to affirmatively allege that plaintiff submitted a tort claim that complied with 20 the requirements of the California Government Claims Act. (ECF No. 18-1 at 3-4.) Second, 21 defendant asserts that judicially noticeable records from the California Department of General 22 Services (“DGS”) establish in fact that plaintiff did not comply with the Government Claims Act 23

24 1 The Office of Risk and Insurance Management, or ORIM, administers the Government Claims Program for the California Department of General Services. See https://www.dgs.ca.gov/ORIM. 25 26 2 Judge Barnes’ screening order pursuant to 28 U.S.C. § 1915A did not preclude the filing of a subsequent Rule 12(b)(6) motion. “[T]he sua sponte screening process is cumulative of, not a 27 substitute for” such a motion. Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007); see also id. at 1120 (“At the time of the initial screening, the complaint was liberally construed 28 without the benefit of briefing from Defendants.”). 1 (“GCA”). (Id. at 5-6.) Specifically, defendant argues that the DGS records show that plaintiff 2 failed to: (1) pay the required filing fee or request a filing fee waiver; (2) submit the tort claim 3 within six months of accrual of the cause; or (3) seek leave to file a late claim. (Id.) Defendant 4 seeks dismissal of the FAC’s state law negligence claim with prejudice because plaintiff cannot 5 cure his noncompliance with the GCA. (Id. at 7.) 6 II. Plaintiff’s Opposition 7 Plaintiff disputes that he did not comply with the GCA. Plaintiff claims that his May 8 2021 tort claim was rejected by operation of law when he did not receive a response within 45 9 days.3 (ECF No. 20 at 4.) When DGS contacted plaintiff about the filing fee, plaintiff submitted 10 it in the mail on October 26, 2021, during COVID-19 restrictions, and did not receive a response. 11 (Id. at 4-5.) Plaintiff submits as evidence a prison mail log showing outgoing mail to ORIM 12 dated October 26, 2021. (Id. at 2.) Plaintiff further states that his mail was misplaced or tampered 13 with and requests relief under the “substantial compliance” doctrine or on grounds that 14 administrative remedies were effectively unavailable despite his due diligence. (Id. at 5.) 15 III. Defendant’s Reply 16 On reply, defendant argues that plaintiff’s evidence does not substantiate his assertion that 17 he submitted a timely claim in May 2021 and contradicts the records on file with DGS. (ECF No. 18 21 at 2.) Defendant reiterates that plaintiff filed his tort claim more than six months after the 19 January 2021 events underlying his FAC and cannot invoke the late claim procedure after he 20 “unjustifiably failed to cure or take any action.” (Id.) Defendant’s reply emphasizes DGS’ letter 21 dated April 6, 2022, which defendant claims was a “§ 913 Notice” that granted plaintiff six 22 months to file a late claim, but he failed to do so. (Id. at 3.) Finally, because plaintiff’s claim was 23 late, he cannot avail himself of the doctrine of substantial compliance or any other exhaustion 24 exceptions. (Id. at 4.) 25 //// 26 //// 27 3 Under the GCA, a public entity has 45 days to respond to a claim. Cal. Gov’t Code § 912.4(a). 28 If the public entity does not act within 45 days, the claim is considered rejected. Id. § 912.4(c). 1 LEGAL STANDARD 2 I. Federal Rule of Procedure 12(b)(6) 3 A defendant may move to dismiss a claim under Rule 12(b)(6) if the allegation “fail[s] to 4 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive, the 5 plaintiff’s complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to 6 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 8 A claim is facially plausible “when the plaintiff pleads factual content that allows the 9 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 10 Iqbal, 556 U.S. at 678. This standard is a “context-specific task that requires the reviewing court 11 to draw on its judicial experience and common sense,” Iqbal, 556 U.S. at 679, and to “draw all 12 reasonable inferences in favor of the nonmoving party.” Boquist v. Courtney, 32 F.4th 764, 773 13 (9th Cir. 2022) (quoting Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 14 938, 945 (9th Cir. 2014)) (internal quotation marks omitted). 15 On a Rule 12(b)(6) motion, the court may consider all materials incorporated into the 16 complaint by reference, as well as evidence properly subject to judicial notice. Weston Fam. 17 P’ship LLLP v. Twitter, Inc., 29 F.4th 611, 617-18 (9th Cir. 2022). “Ultimately, dismissal is 18 proper under Rule 12(b)(6) if it appears beyond doubt that the non-movant can prove no set of 19 facts to support its claims.” Boquist, 32 F.4th at 773–74 (cleaned up). 20 The court may dismiss for failure to state a claim when the allegations of the complaint 21 and judicially noticeable materials establish an affirmative defense or other bar to recovery, such 22 as the expiration of the statute of limitations. See Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th 23 Cir. 2013) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)); see also Goddard v. Google Inc., 24 640 F. Supp. 2d 1193, 1199, n. 5 (N.D. Cal. 2009) (noting that “affirmative defenses routinely 25 serve as a basis for granting Rule 12(b)(6) motions where the defense is apparent from the face of 26 the [c]omplaint”). However, dismissal under Rule 12(b)(6) is improper if the allegations of the 27 complaint and judicially noticeable materials concerning the defense involve disputed issues of 28 fact. ASARCO, LLC v. Union Pacific R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (citing Scott v. 1 Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam)). 2 “[A] district court should grant leave to amend even if no request to amend the pleading 3 was made, unless it determines that the pleading could not possibly be cured by the allegation of 4 other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting In re Doe, 58 F.3d 5 494, 497 (9th Cir. 1995)). A pro se litigant is entitled to notice of the deficiencies in the 6 complaint and an opportunity to amend, unless the complaint’s deficiencies could not be cured by 7 amendment. See Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). 8 II. California Government Claims Act 9 The Government Claims Act, Cal. Gov’t Code §§ 810 et seq. (“GCA”), “requires, as a 10 condition precedent to suit against a public entity, the timely presentation of a written claim and 11 the rejection of the claim in whole or in part.” Mangold v. California Pub. Utilities Comm’n, 67 12 F.3d 1470, 1477 (9th Cir. 1995). “[A] plaintiff must allege facts demonstrating or excusing 13 compliance with the claim presentation requirement. Otherwise, his complaint is subject to a 14 general demurrer for failure to state facts sufficient to constitute a cause of action.” Cardenas v. 15 Cnty. of Tehama, 476 F. Supp. 3d 1055, 1070 (E.D. Cal. 2020) (quoting State of California v. 16 Superior Court, 32 Cal. 4th 1234, 1243 (2004)). “[A] bare allegation that the [GCA] has been 17 followed would seem to be a mere conclusion that is insufficient under Iqbal and Twombly[.]” 18 Young v. City of Visalia, 687 F.Supp.2d 1141, 1152 (E.D. Cal. 2009). 19 Under the GCA, the claim must be filed or presented to the public entity no later than six 20 months after the cause of action accrues. Cal. Gov’t Code § 911.2. The entity must give written 21 notice of its action or inaction on a claim. Id. § 913. If written notice is given under § 913, the 22 claimant has “not later than six months after the date such notice is personally delivered or 23 deposited in the mail.” Id. § 945.6(a)(1). If written notice under § 913 is not given, the claimant 24 has two years from the date of the accrual of the cause of action to bring suit. Id. § 945.6(a)(2). 25 DISCUSSION 26 I. Plaintiff’s Actual Compliance with GCA 27 A. Defendant’s Request for Judicial Notice 28 Defendant seeks judicial notice of DGS records to establish plaintiff’s noncompliance 1 with GCA mandates – i.e., that plaintiff’s tort claim was in fact untimely and that he neither paid 2 the filing fee nor submitted a fee waiver request. (ECF No. 18-3.) The records are attached to the 3 sworn certification of the DGS custodian of records, A. Ramos, and include: (1) plaintiff’s tort 4 claim and attachments, placed in the mail by prison staff on October 22, 2021 (as indicated on the 5 envelope), and received by DGS on November 2, 2021; and (2) the DGS Government Claims 6 Program’s response dated April 6, 2022, notifying plaintiff that the documents submitted on 7 October 22, 2021, did not include the filing fee required by Cal. Gov’t Code § 905.2.4 (ECF No. 8 18-3.) Ramos certifies that the attachments comprise “the claim, any amendments to the claim, 9 and all notices or correspondences to and from the claimant.” (Id. at 4.) 10 “[A] court may take judicial notice of ‘matters of public record’ without converting a 11 motion to dismiss into a motion for summary judgment.” Khoja v. Orexigen Therapeutics, Inc., 12 899 F.3d 988, 999 (9th Cir. 2018). Under Federal Rule of Evidence 201, a court “may judicially 13 notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the 14 trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources 15 whose accuracy cannot reasonably be questioned.” 16 The undersigned will grant defendant’s request. Plaintiff does not dispute the authenticity 17 of the DGS records, and the records are central to his own assertion of compliance with GCA 18 requirements. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 (9th Cir. 2004) (a court 19 “may take judicial notice of a record of a state agency not subject to reasonable dispute.”). 20 However, to the extent that defendant is asking the undersigned to take judicial notice of the truth 21 of the facts contained in the DGS documents, such request is denied. See D.K. ex rel. G.M. v. 22 Solano Cnty. Off. of Educ., 667 F. Supp. 2d 1184, 1189 (E.D. Cal. 2009) (granting defendant’s 23 request to judicially notice the contents of plaintiff’s tort claim but not the truth of the facts 24 therein). 25 //// 26

27 4 When presenting a personal injury claim for damages against the state, claimants must pay a filing fee of twenty-five dollars ($25) or request a fee waiver. Cal. Gov’t Code § 905.2(c). 28 1 B. Analysis of DGS Documents 2 Upon review, the undersigned finds the DGS records contain disputed facts that preclude 3 resolution of plaintiff’s actual compliance with the GCA on a motion to dismiss. For instance, 4 plaintiff submitted with his October 2021 tort claim a sworn declaration dated September 14, 5 2021, stating that he had originally mailed the claim and fee waiver on May 17, 2021, but did not 6 receive a response. (ECF No. 18-3 at 9.) Plaintiff signed and dated the tort claim itself on May 7 17, 2021 (id. at 6), which aligns with this timeline. Plaintiff’s sworn statement, eventually 8 proven, supports an inference that plaintiff first attempted to present his claim in May 2021, and 9 not in October 2021 as defendant argues. 10 Defendant also appears to misinterpret the DGS letter dated April 6, 2022, regarding 11 plaintiff’s claim. Defendant calls the letter a “§ 913 Notice” that “granted Plaintiff an additional 12 six months” to submit a late claim, but he failed to act. (ECF No. 21 at 3.) But the letter 13 contained no such directive. It informed plaintiff he had not paid the filing fee and instructed him 14 to submit $25 or a fee waiver request.5 Whether plaintiff failed to pay the fee or request a waiver, 15 which he denies in his judicially noticed declaration, is a disputed fact that cannot be resolve at 16 this stage of the proceeding. See Panduro v. Hill, No. 5:23-CV-0784 FWS AJR, 2024 WL 17 5275638, at *6 (C.D. Cal. Nov. 1, 2024) (declining to resolve factual disputes regarding 18 plaintiff’s payment of $25 filing fee on a Rule 12(b)(6) motion). 19 Moreover, a proper § 913 notice warns a claimant that they have six months to “file a 20 court action,” not six months to submit a late claim: 21 If the claim is rejected, in whole or in part, the notice … shall include a warning in substantially the following form: 22 “WARNING 23 “Subject to certain exceptions, you have only six (6) months from the date this 24 notice was personally delivered or deposited in the mail to file a court action on this claim.[”] 25 26 5 DGS likely did not have authority to grant a late claim at that time because more than a year 27 had passed since the incident underlying the FAC. See Cal. Gov’t Code § 911.4(b) (late claims “shall be presented to the public entity … within a reasonable time not to exceed one year after 28 the accrual of the cause of action”). 1 Cal. Gov’t Code § 913(b). The April 2022 letter did not include this language and thus does not 2 appear to be a § 913 notice as defendant suggests. Without further factual development, the 3 undersigned cannot determine the statutory significance of the April 2022 letter or rely on it to 4 resolve plaintiff’s actual GCA compliance on a motion to dismiss.6 5 In his opposition, plaintiff submitted – improperly, as it is outside of his FAC – a mail log 6 that he contends shows MCSP mailed his fee waiver on October 26, 2021. (ECF No. 20 at 2.) 7 Defendant maintains that neither the mail log nor any of the judicially noticed documents support 8 plaintiff’s assertions of GCA compliance. (ECF No. 21 at 2.) Defendant further argues that 9 plaintiff is conflating his tort claim documents with appeal documents he submitted to MCSP to 10 exhaust his § 1983 claims. (Id. at 2-3.) A full record may bear out defendant’s claims. But based 11 on the judicially noticed documents alone, the question of whether plaintiff filed a timely claim in 12 May 2021 is a disputed issue of fact that the undersigned cannot resolve on a Rule 12(b)(6) 13 motion. See Lindsay v. Fryson, No. 2:10-cv-2842 LKK, 2011 WL 2444813, at *11 (E.D. Cal. 14 Jun. 15, 2011) (“On a Rule 12(b)(6) motion, the court need not, and cannot, resolve factual 15 disputes regarding actual compliance with the [GCA]”), report and recommendation adopted, No. 16 CIV-S-10-2842 LKK, 2011 WL 3555838 (E.D. Cal. Aug. 11, 2011). 17 II. Whether Plaintiff Adequately Alleged Compliance with the Act 18 The undersigned next considers whether plaintiff’s FAC adequately alleges compliance 19 with the GCA. To survive dismissal on a Rule 12(b)(6) motion, “a plaintiff must allege facts 20 demonstrating or excusing compliance with the claim presentation requirement.” Cardenas, 476 21 F. Supp. 3d at 1070; Mangold, 67 F.3d at 1477. At the motion to dismiss stage, “all allegations of 22 material fact must be accepted as true and construed in the light most favorable to the Plaintiffs 23 [….] However, the allegations of the complaint are not accepted as true if they contradict or are 24 inconsistent with facts judicially noticed by the court.” D.K., 667 F. Supp. 2d at 1195. 25

26 6 Defendant is correct that plaintiff cannot use the doctrine of substantial compliance to cure an untimely tort claim. See Rogers v. California Highway Patrol Officer Macias, No. ED CV 19479 27 JGB KKX, 2019 WL 4540119, at *5 (C.D. Cal. Apr. 25, 2019) (concluding courts may not “liberally construe” six-month timeline in § 911.2 under substantial compliance doctrine). But 28 the DGS records contain disputed facts as to whether plaintiff’s claim was in fact late. 1 The undersigned finds that the FAC adequately alleges plaintiff’s performance of the 2 GCA claim presentation requirements. Accepted as true, plaintiff’s allegation that he filed claims 3 “on 5-25-21” and followed up with ORIM to confirm receipt (ECF No. 1 at 8) is minimally 4 sufficient to demonstrate his timely presentation of a claim within six months of the original 5 incident on January 13, 2021. The allegation is also supported by the judicially noticed claim 6 itself, which is signed and dated May 17, 2021, references the same incident as the FAC, and 7 explicitly names defendant Ables. Cf. Franklin v. Lewis, No. 13-CV-3777-YGR (PR), 2015 WL 8 3509341, (N.D. Cal. June 3, 2015) (granting defendant’s motion to dismiss plaintiff’s state causes 9 of action that were not referenced in his tort claim 10 Courts have found similarly worded allegations sufficient to survive dismissal where 11 actual GCA compliance is disputed. For example, in Lindsay, the plaintiff’s complaint alleged 12 that he “submitted a timely claim under the government tort claims act” and provided a date. 13 2011 WL 2444813, at *10. The defendant County argued that plaintiff never filed the claim, and 14 the parties submitted dueling declarations on that point. The court, taking plaintiff’s allegation as 15 true, held that plaintiff adequately pled his substantial compliance with the GCA and declined to 16 resolve whether plaintiff in fact filed the claim. “[T]he court has no basis to conclude as a matter 17 of law that plaintiff did not file a tort claim at all simply because the County’s clerk cannot recall 18 receiving such a claim.” Id. at *11. 19 Similarly, in Estate of Umana by and through B.U. v. Nat’l City, No. 22 CV 1657 GPC 20 (SBC), 2023 WL 5344305 (S.D. Cal. Aug. 17, 2023), a municipal defendant moved to dismiss the 21 plaintiffs’ state law survivor claims on grounds they did not raise them in their original tort claim. 22 The plaintiffs’ argued that they subsequently submitted compliant supplemental claims, but 23 defendant denied ever receiving them. Id. at *3. The court held that the complaint’s allegation 24 that plaintiffs complied with the “government tort claims requirements as set forth in California 25 Government Code §§ 900 et seq.,” was sufficient to survive dismissal. Id. at *5. The district 26 judge relied on judicially noticed documents supporting the existence of the original tort claim 27 but declined to resolve factual disputes regarding that claim’s compliance with the GCA or the 28 existence of the supplemental claims. Id. ] Here, as in Lindsay and Estate of Umana, plaintiffs allegation that he submitted a timely 2 || tort claim is sufficient to survive dismissal. On a fuller record, defendant may ultimately 3 || establish that plaintiff did not file a legally compliant claim in May 2021 and that his submission 4 | in October 2021 was untimely. But the undersigned cannot resolve this dispute at this stage of 5 || the proceeding, and the judicially noticed documents do not refute the FAC’s allegations to the 6 || extent the court cannot accept them as true. For these reasons, the undersigned recommends that 7 || defendant’s motion be denied. 8 CONCLUSION 9 Accordingly, IT IS HEREBY ORDERED that defendant’s request for judicial notice 10 | (ECF No. 18-2) is GRANTED. 11 Additionally, IT IS HEREBY RECOMMENDED that defendant’s motion to dismiss 12 | (ECF No. 18) is DENIED. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 || objections shall be served and filed within fourteen days after service of the objections. The 19 | parties are advised that failure to file objections within the specified time may waive the right to 20 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | DATED: June 17, 2025 □□ 23

SEAN C. RIORDAN

24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 10