(PC) Van Gessel v. Moore ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER ALLEN VAN GESSEL, No. 1:18-cv-01478-DAD-GSA (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 DR. THOMAS MOORE, et al., CERTAIN CLAIMS AND DEFENDANTS 15 Defendants. (Doc. No. 16) 16 17 18 Plaintiff Christopher Allen Van Gessel is a federal prisoner proceeding pro se and in 19 forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 20 388 (1971) and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). The matter was 21 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 22 302. 23 On February 25, 2020, the assigned magistrate judge issued findings and 24 recommendations, recommending that this action proceed only against defendants Dr. Moore, 25 Physician’s Assistant (“PA”) Altuire, and PA Ballesil on plaintiff’s claims of medical 26 ///// 27 ///// 28 ///// 1 indifference under the Eighth Amendment and medical malpractice under the FTCA.1 (Doc. No. 2 16.) It was also recommended that all of plaintiff’s other claims and named defendants be 3 dismissed with prejudice due to plaintiff’s failure to state a cognizable claim. (Id.) The findings 4 and recommendations were served on plaintiff and contained notice that any objections thereto 5 were to be filed within fourteen (14) days of service. (Id.) On March 6, 2020, plaintiff filed 6 timely objections. (Doc. No. 17.) 7 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the 8 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 9 including plaintiff’s objections, the court concludes that the findings and recommendations are 10 supported by the record and proper analysis. 11 In his objections, plaintiff reiterates his claim that the allegedly unsafe work conditions 12 present at his place of employment constitute a violation of the Fifth and Eighth Amendments and 13 the Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. §§ 651 et seq. (Doc. No. 14 17.) However, plaintiff’s objections do not address the magistrate judge’s conclusion that his 15 claims relating to the conditions of his employment are not cognizable under OSHA or the 16 framework for Bivens claims as set forth by the Supreme Court in Ziglar v. Abbasi, ___U.S.___, 17 137 S. Ct. 1843 (2017). (Doc. No. 16 at 16–20, 23–25, 27.) 18 Accordingly: 19 1. The findings and recommendations issued on February 25, 2020, are adopted; 20 2. This action may proceed on the following claims by plaintiff: 21 a. An Eighth Amendment medical indifference claim under Bivens against 22 defendants Dr. Thomas Moore, PA Altuire, and PA Ballesil; 23 ///// 24 1 The court notes that the magistrate judge also determined that “Plaintiff has stated cognizable 25 medical malpractice claims under the FTCA against the United States for failure to provide Plaintiff with appropriate pain medication to treat Plaintiff’s excruciating pain.” (Doc. No. 16 at 26 26.) That determination, however, appears to be inadvertently omitted from the conclusion of the 27 pending findings and recommendations. Accordingly, the court clarifies that it construes the findings and recommendations as also recommending that plaintiff’s FTCA claim against the 28 United States be allowed to proceed and will adopt that recommendation. 1 b. A medical malpractice claim under the FTCA against the United States; 2 3. All remaining claims and defendants are dismissed without leave to amend due to 3 plaintiff's failure to state a claim upon which relief may be granted as to them; and 4 4. This case is referred back to the magistrate judge for further proceedings, 5 including initiation of service of process. 6 | IT IS SO ORDERED. si am 7 Li. wh F Dated: _ April 9, 2020 wea rE 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28