IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LARRY DALE JOHNSON, 3:15-CV-00581-AC

Plaintiff, 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. Johnson I, Opin. and Order at

2 (Jan. 18, 2011). 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