Carr v. Federal Bureau of Prisons et al

Filing 45

ORDER signed by District Judge John A. Mendez on 4/8/2016 ORDERING Plaintiff's 42 request for reconsideration of the 3/23/2015 ruling is GRANTED; the 3/23/2015 order 19 is VACATED; the magistrate judge is directed to RE-SCREEN the amended complaint 16 ; and Defendant Giron's 35 motion to dismiss is DENIED without prejudice to renewal. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEROY CARR,

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Plaintiff,

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No. 2:14-cv-2110 JAM CKD P

v.

ORDER

FEDERAL BUREAU OF PRISONS, et al.,

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Defendants.

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis. This action
proceeds on the amended complaint filed January 26, 2015. (ECF No. 16.)

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Plaintiff’s complaint asserts claims under Bivens and the Federal Tort Claims Act

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(“FTCA”). (Id.) Plaintiff names four individual defendants – three federal prison employees and

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one outside physician – and, as the fifth defendant, the United States of America.1 (Id. at 2.)

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Plaintiff claims he did not receive adequate medical care after tearing a tendon in his knee in

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March 2013. (Id.)

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In the February 23, 2015 screening order, the magistrate judge determined that this

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See FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (holding the United States is the only
proper defendant in a suit brought pursuant to the FTCA).
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complaint stated a Bivens2 claim as to defendant Giron. (ECF No. 17.) The magistrate judge

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continued: “As to the remaining defendants, the amended complaint fails to cure the deficiencies

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of the original complaint, as discussed in the previous screening order. . . . Thus the undersigned

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will recommend that these defendants be dismissed.” (ECF No. 17.) The district court adopted

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these findings and recommendations and dismissed all defendants except Giron with prejudice.

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(ECF No. 19.)

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However, the magistrate judge overlooked that the amended complaint did cure one

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deficiency of the previous complaint: Unlike the previous complaint, it alleged that plaintiff

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presented his FTCA claim within two years of the incident giving rise to his claim. (ECF No. 16

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at 4; see ECF No. 15 at 4 (screening out previous iteration of FTCA claim for failure to satisfy

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FTCA’s presentation requirements)). Plaintiff has brought this oversight to the court’s attention

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in a request for judicial notice, which the court construes as a request to reconsider its March 23,

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2015 ruling. (ECF No. 42.)

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A district court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e)

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or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th

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Cir. 1993). “Reconsideration is appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law.” Id. at 1263. Here, the court committed clear

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error in screening out plaintiff’s FTCA claim for failure to allege that the presentation

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requirements had been met. Thus the March 23, 2015 order will be vacated and the January 26,

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2015 complaint re-screened.

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Also, as defendant Giron’s pending motion to dismiss (ECF No. 35) is premised on the

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dismissal of plaintiff’s FTCA claim in the March 23, 2015 order, that motion will be denied

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without prejudice to renewal after the amended complaint is re-screened.

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Under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
individual federal employees may be subject to suit for violating a plaintiff’s constitutional rights.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for reconsideration of the March 23, 2015 ruling (ECF No. 42) is

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granted;

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2. The March 23, 2015 order is vacated;

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3. The magistrate judge is directed to re-screen the amended complaint filed January 26,

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2015; and
4. Defendant Giron’s motion to dismiss (ECF No. 35) is denied without prejudice to

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renewal.

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DATED: April 8, 2016

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/s/ John A. Mendez_______________________

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UNITED STATES DISTRICT COURT JUDGE

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