Scott v. Reno

• Decision Date: 25 September 1995
• Docket Number: No. CV 93-6217-TJH (RMC).,CV 93-6217-TJH (RMC).
• Citation: 902 F. Supp. 1190
• Court: U.S. District Court — Central District of California
• Parties: Milton SCOTT, Plaintiff, v. Janet RENO, et al., Defendants.

902 F. Supp. 1190

Milton SCOTT, Plaintiff, v. Janet RENO, et al., Defendants.

No. CV 93-6217-TJH (RMC).

United States District Court, C.D. California.

September 25, 1995.

Milton Scott, Riviera, Arizona, pro se.

Michael Johnson, Assistant United States Attorney, Los Angeles, CA, for defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HATTER, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Complaint and other papers along with the attached Report and Recommendation of the United States Magistrate Judge, as well as the objections of defendants, and has made a de novo determination of the Report and Recommendation.

IT IS ORDERED that: (1) the Report and Recommendation is APPROVED and ADOPTED; (2) defendants' motion to dismiss plaintiff's Bivens claims under the Eighth Amendment for deliberate indifference to his serious medical needs and under the Fifth Amendment for retaliatory transfer is DENIED; (3) defendants' motion to dismiss plaintiff's claim under the Fourteenth Amendment for violation of personal security is GRANTED; and (4) judgment be entered dismissing the action as to defendants United States Department of Justice, the Federal Bureau of Prisons and United States Prison, Lompoc, California.

IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order and the Judgment of this date on all parties.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This report and recommendation is submitted to the Honorable Terry J. Hatter, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

BACKGROUND

Plaintiff, a federal prisoner proceeding pro se and in forma pauperis, filed a Bivens¹ complaint on October 14, 1993. By order of the Court, plaintiff's First Amended Complaint ("Complaint") was filed on June 24, 1994. As individual defendants, plaintiff names the warden, various medical workers, supervisors and administrators at the United States Penitentiary (U.S.P.) at Lompoc, California, Kathleen Hawks, the Director of the Federal Bureau of Prisons, Attorney General Janet Reno, the Department of Justice, the Federal Bureau of Prisons, and U.S.P. Lompoc. Plaintiff's claims arise from an injury plaintiff sustained while working in the kitchen at U.S.P. Lompoc, and defendants' subsequent medical treatment of his injury. Plaintiff alleges that on June 6, 1993, he was given an order to move a cart containing 530 pounds of metal sheet pans into the kitchen. A wheel of the cart broke when it hit a hole, causing the metal pans to fall on his leg and pinning plaintiff under the cart. Plaintiff broke his tibia. Plaintiff alleges that defendants knew that the cart and the floor were both defective. (Complaint, par. 25-26). Plaintiff further alleges that, after his fall, defendants initially left him under the cart until they took photographs of the incident (Complaint, par. 28), and defendant N. Pasao, a physician's assistant, merely wrapped plaintiff's leg in an ace bandage, gave plaintiff a cane, and told plaintiff that a doctor would examine him the next day. (Complaint, par. 31-32). The following day, June 7, 1993, defendant J. Gonzales, another physician's assistant, is alleged to also have misdiagnosed the injury as a sprain. (Complaint, par. 33-35).

On June 8, 1993, plaintiff had X-rays taken, which showed that his leg was broken. Plaintiff alleges that defendants still did little to alleviate his pain, and that he was issued a wheel chair and told to return to his cell without further treatment. (Complaint, par. 36-37). On June 10, 1993, plaintiff was sent to an outside orthopedic surgeon, who implanted a metal plate and surgical screws in his leg. The surgeon allegedly informed defendants that plaintiff was to be brought back in four to five months to have the metal plate and screws removed. (Complaint, par. 39-40). In December of 1993 and January of 1994, plaintiff complained to prison authorities that the screws in his leg were loose. Instead of having the metal plate and screws removed, plaintiff claims defendants transferred him to Federal Correction Institution (F.C.I.) at Florence, Colorado, to avoid providing proper medical care to him. (Complaint, par. 42-43). As a result of his injury and subsequent treatment, plaintiff alleges that he continues to suffer pain in his leg and will never have full use of his leg. (Complaint, par. 44). Moreover, as of the date of the Complaint, plaintiff alleges he still has the metal plate and screws in his leg. (Complaint, par. 45).

Plaintiff brings claims under the Eighth Amendment for deliberate indifference to his serious medical needs (Complaint, par. 60-63), under the due process clause of the Fifth Amendment for his "retaliatory" transfer to F.C.I. Florence (Complaint, par. 43-45, 56-57), and under the Fourteenth Amendment for the violation of his right to "personal security." (Complaint, par. 58). This action is now before the Court on defendants' motion to dismiss, pursuant to Federal Rules Civil Procedure 12(b)(1) and 12(b)(6).

DISCUSSION

Eighth Amendment Claims:

Defendants argue that plaintiff's Eighth Amendment claims must be dismissed due to lack of subject matter jurisdiction in that 18 U.S.C. Section 4126 provides the exclusive remedy for plaintiff's claims. Section 4126 establishes the Prison Industries Fund, which provides "compensation to inmates or their dependents for injuries suffered in any prison industry or in any prison work activity." Section 4126(c)(4). Regulations establish an administrative scheme for handling Section 4126 claims.²

In arguing that plaintiff has only an administrative claim under Section 4126, defendants rely on two lines of cases. The first line of cases holds that where Congress has provided a comprehensive statutory scheme to remedy an injury, the courts should not create a separate remedy under Bivens case law for redressing related Constitutional violations. Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 389, 103 S.Ct. 2404, 2417, 76 L.Ed.2d 648 (1983). Applying Schweiker, the Ninth Circuit has stated: "The Supreme Court has made clear the propriety of according great deference to Congress in devising remedial schemes.... When Congress has created a statutory remedy for potential harms, the courts must refrain from implying non-statutory causes of actions such as Bivens. In obeying the Court's directive to show deference to Congress, we have held ... that if there is some statutory mechanism for remedying harm ... non-statutory claims are barred." Berry v. Hollander, 925 F.2d 311, 316 (9th Cir.1991). See also Janicki Logging Company v. Mateer, 42 F.3d 561, 564-65 (9th Cir. 1994); Pereira v. U.S. Postal Service, 964 F.2d 873, 875-76 (9th Cir.1992); Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir.1989) on remand from 487 U.S. 1212, 108 S.Ct. 2861, 101 L.Ed.2d 897 (1988). Defendants argue that Section 4126 and its implementing regulations set forth a comprehensive statutory scheme; therefore, Section 4126 bars an Eighth Amendment Bivens claim arising from work-related injuries.

The second line of cases holds that a prisoner cannot bring claims under the Federal Tort Claims Act ("FTCA") for work-related injuries, as well as related negligence, but must rely on Section 4126. United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966); Wooten v. United States, 825 F.2d 1039, 1045 (6th Cir.1987); Thompson v. United States, 495 F.2d 192 (5th Cir. 1974); Berry v. Prison Industries, Inc., 440 F.Supp. 1147, 1149 (N.D.Cal.1977). Defendants argue that because plaintiff alleges only work-related injuries, and subsequent negligence, in the treatment of those injuries, Section 4126 provides the exclusive remedy; and the claims relating to his injury, and the subsequent acts and omissions by the prison officials, must be dismissed in their entirety.

To the extent that plaintiff alleges injuries arising from his prison work, defendants' are correct. Under Demko and the Ninth Circuit's interpretation of Schweiker, plaintiff has no Bivens claim for work-related injuries. What defendants ignore, however, is that plaintiff alleges more than work-related injuries. Plaintiff also alleges deliberate indifference to his serious medical needs after the injury. He alleges that defendants still denied him access to medical care for approximately 1½ days after prison medical staff improperly diagnosed the injury as a sprain, rather than a broken leg, and after discovering the leg was broken. (Complaint, par. 36-39). Plaintiff further claims that despite the surgeon's recommendation to remove the metal plate and screws within four to five months, and despite his repeated requests for their removal, the metal plate and screws remained in his leg as of March 26, 1994. (Complaint, par. 3 and 39-45).

The deliberate indifference allegations state claims in addition to those under Section 4126. The denial of adequate medical care subsequent to a work-related injury may form the basis of a claim under FTCA, even if such allegations are intertwined with allegations of negligence stemming from work-related injuries. See Wooten v. United States, 825 F.2d at 1045. In Wooten, plaintiff brought suit under FTCA when his pre-existing back problem was aggravated by performing a prison job for which he was unfit. At trial, plaintiff established that prison officials and medical staff initially failed to provide proper medical evaluation of his injury, and forced him to perform unsuitable jobs, and then repeatedly refused to heed his complaints and disregarded his injury, allowing it to become aggravated to the point that he suffered permanent partial disability. Based on an advisory jury's findings, the trial court held that...