United States District Court, D. Colorado
ORDER ON PENDING MATTERS
Michael J. Watanabe United States Magistrate Judge
The following matters are currently pending in this case:
• The Court’s Order to Show Cause (Docket No. 30), directing plaintiff to effect service on Defendants John Doe and Utilization Review Committee or otherwise show cause why those defendants should not be dismissed from this case;
• Defendants Allred, McDermitt, Thompson, and Nehls’s Motion to Dismiss (Docket No. 43), brought under Rules 12(b)(1) and 12(b)(6); and
• Plaintiffs Motion for Leave to File an Amended Complaint (Docket No. 65), seeking to add Defendant Brandy Hawkins as a Defendant.
The Court held Show Cause Hearings on May 12, 2015, and June 25, 2015. (Docket Nos. 46 & 70.) The Court has reviewed the parties’ filings, taken judicial notice of the Court’s entire file in this case, and considered the applicable Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the Court makes the following orders.
Order to Show Cause (Docket No. 30)
Plaintiff has now named all of the individuals of the Utilization Resource Committee. All of the members of the committee are either (1) already named as Defendants in this case, or (2) as to Brad Cink and Brandy Hawkins, are the new defendants to be named if the Court grants Plaintiff’s motion for leave to file an amended complaint. (See Docket Nos. 53 & 54.) The Utilization Resource Committee itself is not a proper party, as it isn’t a legal entity capable of being sued. Further, Plaintiff has failed to identify John Doe #1, despite having had over three months to do so since the Order to Show Cause was entered. (See Docket No. 30.)
Accordingly, pursuant to Federal Rule of Civil Procedure 4(m) and Federal Rule of Civil Procedure 41(b), Defendants “Utilization Resource Committee” and “John Doe Officer #1” are hereby DISMISSED from this case with prejudice.
Motion to Dismiss (Docket No. 43)
The four individual defendants have moved to dismiss on three grounds. First, Defendant Thompson alleges that he is a commissioned officer of the Public Health Service and thus immune from suit. Second, Defendants Allred, Nehls, and McDermitt argue that Plaintiff has failed to allege facts plausibly establishing either the subjective or the objective components of a deliberate-indifference claim. Finally, Allred, Nehls, and McDermitt argue in the alternative that, to the extent a deliberate-indifference claim has been alleged, the right violated was not clearly established at the time of the violation.
I. Public Health Service
The Federal Tort Claims Act is the exclusive remedy “for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment . . . .” 42 U.S.C. § 233 (2012). This means that commissioned officers of the Public Health Service are immune from Bivens liability. Hui v. Castaneda, 559 U.S. 799 (2010).
Defendant Thompson provided a declaration establishing that he is a commissioned officer. (Docket No. 43-1.) This Court can consider such affidavits in a Rule 12(b)(1) motion, Cherry Creek Card & Party Shop, Inc. v. Hallmark Marketing Corp., 176 F.Supp.2d 1091, 1094–95 (D.Colo.2001) (citing Holt v. United States, 46 F.3d 1000, 1002–03 (10th Cir.1995)), and Plaintiff has offered no reason to doubt Defendant ...