Johnson v. Federal Bureau of Prisons

Filing 61

ORDER The Court DENIES Plaintiffs Motion 38 to Strike Pursuantto FRCP 12 and GRANTS Plaintiffs Second Motion 51 to Strike Defendants Footnote #1. The Court ADOPTS Magistrate Judge Acostas Findings andRecommendation 23 and, therefore, GRA NTS BOPs Motion 14 to Dismiss. The Court GRANTS Plaintiff leave to file an Amended Complaint no later than March 23, 2016, for the sole purpose of alleging a claim under the APA to compel the BOP to decide whether to accept or to reject Plaintiffs IACA claim that wasfiled after Plaintiffs March 2014 release and related to his alleged work-related injuries suffered in 2011 and 2013. The Court advises Plaintiff that the Magistrate Judge will review Plaintiffs Amended Complaint and will recommend striking sua sponte any claims that Plaintiff includes in his AmendedComplaint that do not comply with the Courts limited leave to amend. IT IS SO ORDERED. DATED this 25th day of February, 2016, by United States District Judge Anna J. Brown. (copy mailed to plaintiff this date) (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LARRY DALE JOHNSON,
Plaintiff,

3:15-CV-00581-AC
ORDER

v.
FEDERAL BUREAU OF PRISONS,
Defendant.

BROWN, Judge.
Magistrate Judge John V. Acosta issued Findings and
Recommendation (#23) on December 18, 2015, in which he recommends
the Court grant the Motion (#14) to Dismiss filed by Defendant
Bureau of Prisons (BOP) with leave to amend his Complaint for the
sole purpose of alleging a claim under the Administrative
Procedures Act (APA), 5 U.S.C. § 706, to compel the BOP to decide
whether to accept or to reject Plaintiff’s claim under the Inmate

1 - ORDER

Accident Compensation Act (ICAC), 18 U.S.C. § 4126, that was
filed after Plaintiff’s March 2014 release and related to
Plaintiff's alleged work-related injuries suffered in 2011 and
2013.
Plaintiff filed timely Objections to the Findings and
Recommendation.

Plaintiff also filed a Motion (#38) to Strike

Pursuant to FRCP 12 and a Second Motion (#51) to Strike
Defendant’s Footnote #1.

The matter is now before this Court

pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil
Procedure 72(b).

PLAINTIFF’S MOTION (#38) TO STRIKE PURSUANT
TO FRCP 12 and PLAINTIFF’S SECOND
MOTION (#51) TO STRIKE DEFENDANT’S FOOTNOTE #1
I.

Standard
Federal Rule of Civil Procedure 12(f) provides the Court

“may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
II.

Plaintiff’s Motion (#38) to Strike
In his first Motion to Strike Plaintiff seeks an order

striking two phrases from the December 18, 2015, Findings and
Recommendation:

(1) “Johnson was in BOP custody from 2001

until 2004" and (2) “Johnson was released from BOP custody

2 - ORDER

on December 28, 2004.”1

Findings and Recommendation at 3.

Plaintiff asserts he was in BOP custody “after December 28, 2004,
and into year 2005.”
In his Complaint Plaintiff alleges in pertinent part:

“I

properly reported my IACA inmate workers compensation claim
(December 31, 2004) within a couple of days of [my] release.”
Compl. at ¶ 1.

Although Plaintiff also alleges his prison

sentence ended March 25, 2005, he specifically alleges he was
released “a couple of days” before December 31, 2004.

In

addition, in an earlier action involving Plaintiff’s alleged 2004
injuries brought before Judge Ancer Haggerty in Johnson v.
Federal Bureau of Prisons, 3:08-CV-06017-HA (Johnson I), Judge
Haggerty found on summary judgment that Plaintiff was released
from custody on December 28, 2004.
2 (Jan. 18, 2011).

Johnson I, Opin. and Order at

The Ninth Circuit affirmed Judge Haggerty’s

decision, including his finding that Plaintiff was released on
December 28, 2004.
Accordingly, the Court denies Plaintiff’s Motion to Strike
and declines to strike the statements at issue in the Findings
and Recommendation.

1

The Magistrate Judge’s finding as to Plaintiff’s
December 28, 2004, release date pertains only to Plaintiff’s
IACA claim related to his pre-December 2004 release injuries.
The Magistrate Judge notes later in the Findings and
Recommendation that Plaintiff reentered BOP custody on
December 30, 2010, and was released again on March 21, 2014,
which Plaintiff does not challenge.
3 - ORDER

III. Plaintiff’s Second Motion (#51) to Strike Defendant’s
Footnote #1.
In his Second Motion to Strike Plaintiff moves for an order
striking footnote one in Defendant’s Response (#36) to
Plaintiff’s Objections to Findings and Recommendation.

In

footnote one Defendant states, among other things, that the BOP
advised defense counsel that it did not have a record of
Plaintiff’s 2014 IACA claim.
The Court finds the information in the footnote is not
redundant, immaterial, impertinent, or scandalous.

Nevertheless,

the Court declines to consider the information contained in this
footnote because it is presented for the first time in
Defendant’s Response to Plaintiff’s Objections, and it is not
directly relevant to the immediate issues before the Court.
Accordingly, the Court grants Plaintiff’s Motion to Strike
Defendant’s Footnote #1.

PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND RECOMMENDATION
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).

4 - ORDER

This Court has carefully considered Plaintiff’s Objections
and concludes they do not provide a basis to modify the Findings
and Recommendation.

The Court also has reviewed the pertinent

portions of the record de novo and does not find any error in the
Magistrate Judge's Findings and Recommendation.

CONCLUSION
The Court DENIES Plaintiff’s Motion (#38) to Strike Pursuant
to FRCP 12 and GRANTS Plaintiff’s Second Motion (#51) to Strike
Defendant’s Footnote #1.
The Court ADOPTS Magistrate Judge Acosta’s Findings and
Recommendation (#23) and, therefore, GRANTS BOP’s Motion (#14) to
Dismiss.

The Court GRANTS Plaintiff leave to file an Amended

Complaint no later than March 23, 2016, for the sole purpose of
alleging a claim under the APA to compel the BOP to decide
whether to accept or to reject Plaintiff’s IACA claim that was
filed after Plaintiff’s March 2014 release and related to his
alleged work-related injuries suffered in 2011 and 2013.
The Court advises Plaintiff that the Magistrate Judge will
review Plaintiff’s Amended Complaint and will recommend striking
sua sponte any claims that Plaintiff includes in his Amended
Complaint that do not comply with the Court’s limited leave to

5 - ORDER

amend.
IT IS SO ORDERED.
DATED this 25th day of February, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

6 - ORDER