ORDER DENYING DEFENDANT'S MOTION TO DISMISS
CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(h)(3). (Doc. #34.) For the following reasons, this Court denies the motion.
Between September 2005 and February 2009, Plaintiff was a prisoner at the Federal Correctional Institution ("FCI") in Florence, Colorado and, later, at the FCI in Sandstone, Minnesota. (Doc. #1 at 2.) On September 3, 2005, Plaintiff sought medical attention at FCI Florence's clinic, complaining about blood in his urine and pain in his right side and groin. ( Id. ) Medical staff diagnosed him with kidney stones and gave him medication. ( Id. ) Plaintiff returned to the clinic on September 8, 2005, with similar complaints (Doc. #1 at 2-3) and was diagnosed with kidney stones and a urinary tract infection. (Doc. #8-1.) When Plaintiff returned to the clinic for a check-up on September 20, 2005, his symptoms were no longer present. (Doc. #8-1.) A urine sample taken from Plaintiff in October 2005 revealed the continued presence of blood (Doc. #1 at 3), but Plaintiff was not told about the results. (Doc. #8-1.) No healthcare provider performed testing to determine the cause of the blood from 2005 until 2009. (Doc. #1 at 3.) Meanwhile, Plaintiff was transferred to the FCI in Sandstone. ( Id. ) Plaintiff visited the medical clinics in Florence and Sandstone several times from 2007 through 2009 for other medical problems. (Doc. #1; Doc. #7-1.)
Plaintiff requested his medical records from the Federal Bureau of Prisons ("BOP") on December 26, 2008. (Doc. #34-5.) The health clinic at Sandstone received Plaintiff's request on December 29, 2008. (Doc. #34-4 at 2; Doc. #34-5.) The following day, December 30, 2008, Ms. Jaclyn Revier, a Health Information Technician at Sandstone, placed Plaintiff on "call-out" so he could pick-up his medical records. (Doc. 34-4 at 1-2.) The record does not reveal what exactly was contained in these medical records only that they were handed over to Plaintiff on December 30.
On February 9, 2009, Plaintiff's symptoms returned. (Doc. #8-1.) He reported to the clinic in Sandstone, complaining of an inability to urinate and a recent episode of bloody urine. ( Id. ) A urinalysis performed on February 9, 2009, showed a large amount of blood in Plaintiff's urine and a CT scan performed later that same day detected probable kidney masses. (Doc. #34-6, at 1-2.) Further, Mr. Pete Bennett, a nurse at Sandstone, entered a clinical encounter administrative note on February, 11, 2009, that Plaintiff was to be treated for bilateral renal cancer. ( Id. at 3.) There is no indication in the record presented whether Plaintiff knew of this diagnosis on February 11, 2009.
On February 17, 2009, Plaintiff's right kidney was removed. (Doc. #39-4.) A pathology exam performed on that same date revealed that Plaintiff had kidney cancer. (Doc. #39-5, at 1.) Plaintiff claims that he first learned that he had kidney cancer on February 17, 2009. (Doc. #8-1, at 2.) In April 2009, part of Plaintiff's left kidney was removed, and a pathology exam revealed that it, too, was cancerous. (Doc. #1 at 4.)
When claiming damage, injury, or death, against the federal government, a claimant must submit a form SF-95 to the appropriate agency. Plaintiff submitted this form to the BOP claiming personal injury for the loss of his kidneys and for increased risk of death or disability from the development of kidney cancer. (Doc. #7-1.) The BOP received Plaintiff's SF-95 on February 15, 2011. (Doc. #7-1 at 1).
B. PROCEDURAL HISTORY
Plaintiff filed a claim against the United States alleging negligence in its diagnosis and treatment of his kidney condition on September 21, 2011. Specifically, Plaintiff alleged negligence for the following: (1) "failing to properly work up" the cause of blood in his urine and (2) failing "to construct medical records in a proper manner." (Doc. #1 at 4.) Plaintiff alleged that this negligence was a proximate cause of the "worsening" and "spread" of cancer throughout Plaintiff's kidneys. ( Id. ) Plaintiff alleged that these claims arose under the Federal Tort Claims Act or FTCA. See 28 U.S.C. § 1346(b)(1).
On January 3, 2012, Defendant filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1), arguing that this Court does not have subject-matter jurisdiction because Plaintiff's claim is time-barred by the FTCA's statute of limitations. See 28 U.S.C. § 2401(b). (Doc. #7.) This Court denied Defendant's Motion to Dismiss on September 24, 2012. (Doc. #14.)
After completing discovery, Defendant filed its current Motion to Dismiss on August 1, 2013. (Doc. #34.) Plaintiff responded on August 22, 2013 (Doc. #39), and ...