(PC) Walker v. USA, et al, No. 1:2002cv05801 - Document 136 (E.D. Cal. 2009)
Court Description: ORDER ADOPTING 130 FINDINGS AND RECOMMENDATIONS; ORDER Denying 107 Motion to Dismiss by Defendants The Geo Group, Andrews, Akanno, Craig, Minnecci, Noriega, and Nichols signed by Chief Judge Anthony W. Ishii on 09/16/2009. (Flores, E)
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(PC) Walker v. USA, et al Doc. 136 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KEVIN WALKER, 11 12 13 Plaintiff, vs. UNITED STATES OF AMERICA, et al., 14 15 Defendants. _____________________________/ 1:02-cv-05801-AWI-GSA-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 130.) ORDER DENYING MOTION TO DISMISS BY DEFENDANTS THE GEO GROUP, ANDREWS, AKANNO, CRAIG, MINNECCI, NORIEGA, AND NICHOLS (Doc. 107.) 16 Kevin Walker (“plaintiff”) is a federal prisoner proceeding pro se in this civil rights 17 action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and the Federal 18 Torts Claims Act. The matter was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. ' 636(b)(1)(B) and Local Rule 72-302. 20 On July 30, 2009, findings and recommendations were entered, recommending that 21 the motion to dismiss filed by defendants the Geo Group, Inc., Raymond Andrews, Jonathan E. 22 Akanno, Terry Craig, Margaret Minnecci, Esteban Noriega, and Geraldine Nichols (“Taft 23 Defendants”), filed on September 8, 2008, be denied without prejudice. On August 25, 2009, 24 Defendants, joined by defendant Suzanne Snellen, filed objections to the findings and 25 recommendations. 26 In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 73- 27 28 1 Dockets.Justia.com 1 305, this court has conducted a de novo review of this case. Having carefully reviewed the entire 2 file, the court finds the findings and recommendations to be supported by the record and proper 3 analysis. 4 As explained by the Supreme Court in Wilkie v. Robbins, 551 U.S. 537, 561-62 5 (2007), to determine if a Bivens remedy is available, the court must first determine whether there is 6 “any alternative, existing process for protecting” the plaintiff's interests. Id. at 550. The Supreme 7 Court has refrained from creating a Bivens remedy even when the available statutory remedies “do 8 not provide complete relief” for a plaintiff that has suffered a constitutional violation. Corr. Servs. 9 Corp. v. Malesko, 534 U.S. 61, 69 (2001). “So long as the plaintiff ha[s] an avenue for some 10 redress, bedrock principles of separation of powers foreclose [s] judicial imposition of a new 11 substantive liability.” Id. Second, if the court cannot infer whether Congress intended a statutory 12 remedial scheme to take the place of a Bivens remedy, the court asks whether there nevertheless are 13 “factors counseling hesitation” before devising such an implied right of action. Wilkie, 551 U.S. at 14 550; Western Radio Services Co. v. U.S. Forest Service, – F.3d – , 2009 WL 2568706, 3 (9th Cir. 15 2009). Even where Congress has given plaintiffs no damages remedy for a constitutional violation, 16 the court will not do so when it “would be plainly inconsistent with Congress' authority in this field.” 17 Chappell v. Wallace, 462 U.S. 296, 304 (1983); Western Radio Services, 2009 WL 2568706, 4. 18 Here, the alternative remedy Taft Defendants claim Plaintiff has available is a tort 19 claim under California for negligence. As such, Taft Defendants contend that extending an Eighth 20 Amendment Bieves claim against them is not proper because Plaintiff has some avenue for some 21 redress. 22 Defendants would claim immunity under California Government Code § 845.6 to any negligence 23 claim filed in state court. Section 845.6 provides: 24 At issue in the Findings and Recommendations was the Magistrate Judge’ concern that 27 Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.8 and 856, a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care. Nothing in this section exonerates a public employee who is 28 2 25 26 1 2 lawfully engaged in the practice of one of the healing arts under any law of this state from liability for injury proximately caused by malpractice or exonerates the public entity from its obligation to pay any judgment, compromise, or settlement that it is required to pay under subdivision (d) of Section 844.6. 3 4 Cal.Gov.Code § 845.6. Taft Defendants have still not explained whether Section 845.6 will bar 5 Plaintiff’s tort claims against them. Whether Taft Defendants are or are not entitled to qualified 6 immunity under Bievens is not the issue at this time. The issue is can Plaintiff even allege and 7 proceed with any viable claim under California law based on the failure to given him medical 8 treatment. Because the burden in this motion is on Defendants, the court finds Defendants have 9 failed to meet their burden. 10 Accordingly, THE COURT HEREBY ORDERS that: 11 1. 12 The Findings and Recommendations issued by the Magistrate Judge on July 30, 2009, are adopted in full; and 13 2. The motion to dismiss filed by defendants the Geo Group, Inc., Raymond 14 Andrews, Jonathan E. Akanno, Terry Craig, Margaret Minnecci, Esteban 15 Noriega, and Geraldine Nichols ("Taft Defendants") on September 8, 2008, is 16 denied without prejudice to Taft Defendants filing a new motion to dismiss on 17 this issue. 18 19 IT IS SO ORDERED. 20 Dated: 0m8i78 September 16, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 3
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