Alvarado v. Mr. Sharpe et al
Filing
95
ORDER ADOPTING 92 FINDINGS AND RECOMMENDATIONS; granting 79 Motion for Summary Judgment. Any appeal of this decision would not be taken in good faith. Signed by Magistrate Judge John Johnston on 2/6/2018. Mailed to Alvarado (TAG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
THOMAS ALVARADO,
CV-15-05-GF-BMM-JTJ
Plaintiff,
v.
ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS
WARDEN CROSSROAD
CORRECTIONAL CENTER, et al.,
Defendants.
Plaintiff Thomas Alvarado (“Alvarado”) filed his Amended Complaint on
May 28, 2015. (Doc. 9.) The Complaint alleges denial of medical care by various
employees of Crossroads Correctional Center. Defendants filed a motion for
summary judgment on September 25, 2017. (Doc. 79.)
United States Magistrate Judge John Johnston issued an Order and Findings
and Recommendations in this matter on December 18, 2017. (Doc. 92.) Judge
Johnston recommended that the Court grant Defendants’ motion for summary
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judgment. (Doc. 79 at 8-9.) Judge Johnston further recommended that the Court
should decline to exercise supplemental jurisdiction over any state law claims. Id.
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1)(C). Portions of findings and
recommendations to which no party specifically objects are reviewed for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
1313 (9th Cir. 1981). Where a party's objections constitute perfunctory responses
argued in an attempt to engage the district court in a relitigation of the same
arguments set forth in the original response, however, the Court will review for
clear error the applicable portions of the findings and recommendations. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations
omitted).
Alvarado filed an objection. (Doc. 93.) The document cites the same cases
and advances the same arguments made in Alvarado’s Response to Defendant’s
Motion for Summary Judgment. (Doc. 87.) Judge Johnston considered these
arguments in making his recommendation to the Court. Thus, the Court finds no
specific objections that do not attempt to relitigate the same arguments, and will
review the Findings and Recommendations for clear error.
I.
Claims Prohibited Under Minneci v. Pollard
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Judge Johnston recommended that the Court grant Defendants’ motion for
summary judgment because a prisoner cannot assert a claim for damages against
private prison employees or the corporations who own and run private prisons
where a state tort law remedy is available. Minneci v. Pollard, 565 U.S. 118
(2012). (Doc. 92 at 4.)
A claimant ordinarily may bring an action for constitutional violations
committed by federal actors in federal court under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens does not
apply, however, where the claimant is a prisoner seeking damages from privately
employed personnel at a privately operated federal prison for conduct “that
typically falls within the scope of traditional state tort law.” Minneci, 565 U.S. at
131. The claimant must instead seek a remedy under state tort law. Id.
Alvarado’s amended complaint alleges denial of medical care. The Court
finds no error in Judge Johnston’s finding that Montana tort law provides a remedy
for such claims. (Doc. 92 at 5.) The Court further finds no error in Judge
Johnston’s recommendation that defendants are entitled to summary judgment on
these grounds. (Doc. 92 at 6.)
II.
State Law Claims
Alvarado’s amended complaint contains claims arising under both the
Eighth Amendment and the Montana Constitution. Judge Johnston recommends
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that the Court decline to exercise supplemental jurisdiction and dismiss Alvarado’s
state law claims without prejudice. (Doc. 92 at 7.)
The Court may exercise its discretion to dismiss supplemental state law
claims brought in an action where the Court has dismissed the claims over which it
has original jurisdiction. 28 U.S.C. § 1367(c)(3). The Court should weigh a number
of factors in determining whether to continue to exercise supplemental jurisdiction.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 353 (1988). These factors include
economy, convenience, fairness, and comity. Id.
The Court finds no error in Judge Johnston’s analysis of the CarnegieMellon factors. The Court further finds no error in Judge Johnston’s finding that
the factors weigh in favor of dismissal. (Doc. 92 at 7.)
The Court has reviewed the remainder of Judge Johnston’s Order and
Findings and Recommendations for clear error. The Court finds no error, and
adopts the Findings and Recommendations in full.
ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 92) is ADOPTED IN FULL.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment (Doc. 79) is GRANTED. Alvarado’s federal claims are DISMISSED
WITH PREJUDICE for failure to state a claim.
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The Court declines to exercise supplemental jurisdiction over any state law
claims. All state law claims are DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. § 1367(c)(3).
The Clerk of Court is directed to close the case and enter judgment in favor
of Defendants pursuant to Rule 58 of the Federal Rules of Civil Procedure.
The Clerk of Court is directed to have the docket reflect that the Court
certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure
that any appeal of this decision would not be taken in good faith. No reasonable
person could suppose an appeal would have merit.
DATED this 6th day of February, 2018.
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