Curtis Anderson v. United States of America et al

Filing 58

ORDER adopting Findings and Recommendations in part and granting in part Defendants' Motions to Dismiss 22 , 23 , 26 , 30 , 33 , 39 , 53 signed by District Judge Dale A. Drozd on 9/5/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS ANDERSON,

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No. 1:16-cv-00352-DAD-SAB

Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART AND
GRANTING IN PART DEFENDANTS’
MOTIONS TO DISMISS

Defendants.
(Doc. Nos. 22, 23, 26, 30, 33, 39, 53)

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Plaintiff Curtis Anderson is a federal prisoner proceeding pro se and in forma pauperis in

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this action brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671. This

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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On May 9, 2017, the assigned magistrate judge screened plaintiff’s first amended

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complaint and found that it stated a cognizable claim against defendant United States of America

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under the FTCA, and for medical malpractice under state law against defendants Dr. Hellner, Dr.

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Franco, P.A. Hong, P.A. Egan, Nurse Jane Doe #1, Nurse Jane Doe #2, and Mercy Medical

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Center (“MMC”). (Doc No. 10.) Following plaintiff’s notification filed with the court expressing

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his intent to proceed only on the claims found to be cognizable by the court in its screening order

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(Doc. No. 11), the assigned magistrate judge dismissed all other claims for the failure to state a
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cognizable claim for relief. (Doc. No. 12). The assigned magistrate judge indicated in the order

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that jurisdiction existed under 28 U.S.C. § 636(c), because plaintiff had consented to Magistrate

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Judge jurisdiction and no other parties had yet appeared in this action. (See id. at 1.)

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On October 23, 2017, defendant Hellner filed two motions to dismiss. (Doc. Nos. 22, 23.)
On November 7, 2017, the United States filed a motion to dismiss. (Doc. No. 26.)
On November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not yet served with

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process, before jurisdiction may vest in a magistrate judge to dispose of a civil case. Williams v.

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King, 875 F.3d 500 (9th Cir. 2017). On December 1, 2017, in light of the decision in Williams,

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the assigned magistrate judge issued findings and recommendations consistent with the May 9,

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2017 screening order. (Doc. No. 33.) The findings and recommendations noted that the motions

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to dismiss were not yet fully briefed at the time, and made no recommendations as to how those

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motions should be resolved. (Id. at 2 n.1.)

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On November 17, 2017, defendant MMC filed a motion to dismiss. (Doc. No. 30.) On

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December 7, 2017, the United States objected to the December 1, 2017 findings and

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recommendations on the grounds raised in its earlier motion to dismiss. (Doc No. 36.) On

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December 8, 2017, defendant Hellner filed another motion to dismiss. (Doc. No. 39.)

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On July 10, 2018, the assigned magistrate judge issued findings and recommendations,

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recommending that: (1) defendant Hellner’s motion to dismiss, filed on December 8, 2017 (Doc.

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No. 39) be granted on the grounds that plaintiff’s medical malpractice claim against that

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defendant was time-barred; (2) defendant Hellner’s motions to dismiss filed on October 23, 2017

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(Doc. Nos. 22, 23) be denied as moot; (3) defendant MMC’s motion to dismiss, filed on

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November 17, 2017 (Doc. No. 30) be granted on the grounds that plaintiff’s medical malpractice

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claim brought against that defendant was likewise time-barred; (4) the United States of America’s

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motion to dismiss, filed on November 7, 2017 (Doc. No. 26) be granted; (5) defendants Hellner,

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MMC, Franco, Egan, Hong, Jane Doe Nurse #1, and Jane Doe Nurse #2 be dismissed from this

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action with prejudice; (6) this action proceed under the FTCA, solely against the United States of

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America, on plaintiff’s claim arising from the alleged negligent conduct of Dr. Hellner and
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Physician’s Assistant Egan; (7) plaintiff’s claim for punitive damages be dismissed with

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prejudice; (8) plaintiff’s damages be capped at fifty thousand dollars ($50,000); and (9) plaintiff’s

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demand for a jury trial be stricken. (Doc. No. 53 at 16–17.) Those findings and recommendations

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were served on the parties and contained notice that any objections thereto were to be filed within

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thirty days. (Id. at 17.) On July 23, 2018, the United States filed objections, limited to a possible

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typographical error in the findings and recommendations. (Doc. No. 54.) No other objections

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were filed, and the time in which to file objections to the findings and recommendations has now

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passed

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a

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de novo review of the case. Having carefully reviewed the entire file, the undersigned concludes

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that both the findings and recommendations issued on December 1, 2017 (Doc. No. 33) and the

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findings and recommendations issued on July 10, 2018 (Doc. No. 53) are supported by the record

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and by proper analysis with the one exception noted below.1

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In its objections, the United States does not take issue with the analysis of the findings and

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recommendations. The July 10, 2018 findings and recommendations concluded that because

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defendants Hellner and Egan were contractors rather than employees of the Bureau of Prisons, the

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court lacked jurisdiction over plaintiff’s negligence claims brought against those defendants.

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(Doc. No. 53 at 14.) However, the July 10, 2018 findings and recommendations then

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recommended that the action proceed against the United States based “on Plaintiff’s claim arising

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out of the alleged negligent conduct of Dr. Hellner and Physician’s Assistant Egan.” (Id. at 17.)

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Based on the analysis contained within the findings and recommendations, this appears to have a

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been a simple typographical error. The language should instead have stated that plaintiff’s claim

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may proceed based on “the alleged negligent conduct of defendants Franco and Hong.” The

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findings and recommendations are adopted in all other respects.

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The latter may be characterized as having supplemented the former in identifying additional
grounds for dismissal of certain claims.
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For these reasons,

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1. The findings and recommendations issued on July 10, 2018 (Doc. No. 53) are

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adopted in full, save an except as discussed above;

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2. The findings and recommendations issued on December 1, 2017 (Doc. No. 33) are

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adopted in full;

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3. Defendant Hellner’s motion to dismiss (Doc. No. 39) is granted;

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4. Defendant Hellner’s additional motions to dismiss (Doc. Nos. 22, 23) are denied as

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moot;
5. Defendant MMC’s motion to dismiss (Doc No. 30) is granted;

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6. The United States of America’s motion to dismiss (Doc. No. 26) is granted;

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7. Defendants Hellner, MMC, Franco, Egan, Hong, Jane Doe Nurse # 1, and Jane

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Doe Nurse # 2 are dismissed from this action with prejudice;

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8. This case proceeds under the FTCA solely against defendant United States of

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America on plaintiff’s claim arising out of the alleged negligent conduct of

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defendants Franco and Hong;

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9. Plaintiff’s claim for punitive damages is dismissed with prejudice;

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10. Plaintiff’s recoverable damages are capped at fifty thousand dollars ($50,000);

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11. Plaintiff’s demand for a jury trial is stricken; and

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12. This action is referred back to the assigned magistrate judge for further

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proceedings consistent with this order.
IT IS SO ORDERED.
Dated:

September 5, 2018
UNITED STATES DISTRICT JUDGE

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