Tommy Ray Elam v. Michael Hernandez et al

Filing 80

ORDER TO SHOW CAUSE by Magistrate Judge David T Bristow. (ad)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 TOMMY ELAM, ) Case No. CV 09-2780-PA (DTB) ) Plaintiff, ) vs. ) ORDER TO SHOW CAUSE ) MICHAEL HERNANDEZ, et al., ) ) Defendants. ) ) ) 17 In light of the Supreme Court’s recent decision in Minneci v. Pollard, 565 U.S. 18 –, 132 S. Ct. 617, 181 L. Ed. 2d 606 (2012), petitioner is ordered to show cause in 19 writing, within fourteen (14) days of the service date of this Order, why the Court 20 should not recommend that this action be dismissed without prejudice. 21 In the Supreme Court’s decision, in reversing Pollard v. GEO Grp., Inc., 629 22 F.3d 843 (9th Cir. 2010) (as amended), the Court held that a plaintiff could not bring 23 an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 24 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) against an employee of a 25 privately operated federal prison for damages based on alleged Eighth Amendment 26 violations. The Supreme Court held that a plaintiff cannot assert a Bivens action in 27 circumstances were state tort law authorizes adequate alternative damages actions, 28 / / / 1 1 “actions that provide both significant deterrence and compensation.” Minneci, 132 2 S. Ct. at 620. As the Supreme Court explained: 3 [W]here, as here, a federal prisoner seeks damages from privately 4 employed personnel working at a privately operated federal prison, 5 where the conduct allegedly amounts to a violation of the Eighth 6 Amendment, and where that conduct is of a kind that typically falls 7 within the scope of traditional state tort law (such as the conduct 8 involving improper medical care at issue here), the prisoner must seek 9 a remedy under state tort law. We cannot imply a Bivens remedy in 10 such a case. 11 Id. at 626. 12 13 Here, plaintiff is contending that defendant Hernandez, a private physician 14 operating at a private hospital, violated his constitutional rights. Specifically, while 15 plaintiff was a pretrial detainee at the Metropolitan Detention Center, he was 16 transferred to White Memorial Medical Center (“WMMC”) for medical treatment. 17 At WMMC, plaintiff was treated by defendant Hernandez, who allegedly 18 administered antipsychotic medication against plaintiff’s will in violation of his 19 Eighth and Fifth Amendment rights. 20 In light of the Supreme Court’s recent opinion in Minneci, it appears that 21 plaintiff cannot bring a Bivens action against Hernandez for damages based on 22 alleged violations of his Eighth and Fifth Amendment rights. As with the claims in 23 Minneci, state law would provide an “alternative, existing process” capable of 24 protecting the constitutional interests at stake. See Minneci, 132 S. Ct. at 623. 25 / / / 26 / / / 27 / / / 28 / / / 2 1 As such, it appears the Supreme Court’s decision in Minneci bars plaintiff’s 2 Bivens action against Hernandez. 3 4 DATED: August 23, 2012 5 ____________________________________ THE HONORABLE DAVID T. BRISTOW UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 8/23/12 I hereby attest and certify on _________ that the foregoing document is full, true and correct copy of the original on file in my office, and in my legal custody. CLERK U.S. DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 19 dts 20 DEPUTY CLERK 21 22 23 24 25 26 27 28 3

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