Barrientos v. Walker, et al.

Filing 21

ORDER ADOPTING 20 Findings and Recommendations in Full, Denying 12 Defendant's Motion to Certify Employment Under the Federal Tort Claims Act and Remanding Action to Tulare County Superior Court signed by District Judge Jennifer L. Thurston on 3/27/2024. CASE CLOSED. Certified copy of remand order mailed to Tulare County Superior Court. (Lawrence, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN BARRIENTOS, JR., 12 13 14 15 16 17 Plaintiff, v. DALE ALLAN WALKER, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:23-cv-1432 JLT SAB ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATIONS DENYING DEFENDANT’S MOTION TO CERTIFY EMPLOYMENT UNDER THE FEDERAL TORT CLAIMS ACT AND REMANDING ACTION TO TULARE COUNTY SUPERIOR COURT (Docs. 12 and 20) Ruben Barrientos, Jr. filed the instant action against Dale Allen Walker in Tulare County 18 Superior Court. (Doc. 1-1.) Walker alleges he was acting within the course and scope of his 19 employment with the Tule River Indian Tribe while carrying out a self-determination contract pursuant 20 to the Indian Self-Determination and Education Assistance Act (“ISDEAA”) at the time of the vehicle 21 collision that forms the basis of the complaint. Walker requests the Court “find and certify that he was 22 acting within the scope of his employment” under the Federal Tort Claims Act, substitute the United 23 States as the defendant in this action, and dismiss Walker as a defendant from the action. (Doc. 12.) 24 The assigned magistrate judge found Walker failed to establish he was a covered employee 25 under a self-determination contract as defined under the ISDEAA, and recommended the motion to 26 certify employment, substitute the United States as a party defendant, and dismiss Dale Allen Walker 27 be denied. In addition, the magistrate judge recommended that the action be remanded to the Tulare 28 County Superior Court pursuant to 28 U.S.C. § 2679(d)(3). (See Doc. 20 at 8-23.) 1 1 The Court served the Findings and Recommendations on the parties and notified them that any 2 objections were due within 14 days. (Doc. 20 at 24.) The Court advised the parties the “failure to file 3 objections within the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson 4 v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) The parties and the Government did not file any 5 objections, and the time to do so has passed. 6 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. 7 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are 8 supported by the record and proper analysis. Thus, the Court ORDERS: 9 1. The Findings and Recommendations dated (Doc. 20) are ADOPTED in full. 10 2. Dale Allen Walker’s motion to certify employment, substitute the United States as a party defendant, and dismiss Dale Allen Walker as a defendant (Doc. 12) is DENIED. 11 12 3. 2679(d)(3). 13 14 The action is REMANDED to Tulare County Superior Court pursuant to 28 U.S.C. § 4. The Clerk of Court is directed to close this case. 15 16 17 IT IS SO ORDERED. Dated: March 27, 2024 18 19 20 21 22 23 24 25 26 27 28 2

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