United States District Court, D. Colorado
ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS
CRAIG B. SHAFFER UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Defendants Craig Thompson and Samantha McCoic’s Motion to Dismiss [Doc. 35], filed on August 7, 2015. Also before the court is Defendant Jacob Patterson’s Motion to Dismiss [Doc. 50], filed on October 22, 2015. Upon consent of the parties, this case was referred to the Magistrate Judge for all purposes by Order of Reference dated September 28, 2015 [Doc. 48]. See D.C. Colo. LCivR 40.1. For the following reasons, the court grants both motions.
FACTUAL ALLEGATIONS & PROCEDURAL BACKGROUND
Plaintiff, a pro se prisoner currently incarcerated at a federal prison in Terre Haute, Indiana, filed this lawsuit pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §2674,  and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [Doc. 16]. Plaintiff’s claims arise out of events that occurred while he was incarcerated at a federal prison in Florence, Colorado (“USP Florence”). Id. at 3.
Specifically, Plaintiff alleges that the Federal Bureau of Prisons (“BOP”) was negligent in maintaining the concrete surface of the recreation area at USP Florence, and he injured his left ankle and foot while playing basketball on April 8, 2013. Id. at 4. Plaintiff further alleges that his Eighth Amendment rights were violated by the individual Defendants’ deliberate indifference in denying him a “lower bunk pass” following his injury. Id. at 5. He contends that this led to additional injuries when Plaintiff fell while descending from an upper bunk on April 11, 2013. Id. After falling in his cell, Plaintiff claims that Defendants “delay[ed] coming to his aid for a four hour period, during which time he was forced to lie in his own waste.” Id.
Plaintiff initiated this action by filing his original complaint on November 21, 2014. [Doc. 1]. The court ordered Plaintiff to cure certain deficiencies in his original complaint [Doc. 4], and Plaintiff filed his First Amended Complaint on January 26, 2015. [Doc. 7]. Then, on January 28, 2015, the court directed Plaintiff to amend his complaint again because it was unsigned. [Doc. 9]. The court also told Plaintiff that, in filing a second amended complaint, he “must explain what each defendant did to him or her; when the defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Id. (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007)).
Plaintiff filed a response stating “I’m writing to let the courts know that I would like to pursue the (FTCA) part of the suit & not the Bivins [sic] aspect part of it.” [Doc. 10]. In an Order entered on February 19, 2015, the court acknowledged Plaintiff’s intent to pursue only his FTCA claim, but again directed Plaintiff to cure the fact that his operative complaint, as of that date, was unsigned. [Doc. 11]. Plaintiff then filed a Second Amended Complaint on March 2, 2015 [Doc. 13], which was stricken as improper by the court because it was not on the court-approved prisoner complaint form. [Doc. 14].
On March 24, 2015, Plaintiff filed his Third Amended Complaint, which named Jacob Patterson, M.D., Craig Thompson, RN, Samantha McCoic, and the Federal Bureau of Prisons as Defendants. [Doc. 16]. Notwithstanding Plaintiff’s prior statement that he no longer wanted to pursue the Bivens claim, his Third Amended Complaint asserted this claim against the abovementioned individual Defendants. Id. Defendants McCoic and Thompson sent Waivers of Service to the court on April 22, 2015 and April 29, 2015, respectively. On August 7, 2015, Defendants McCoic and Thompson filed a Motion to Dismiss Plaintiff’s Eighth Amendment deliberate indifference claim [Doc. 35], to which Plaintiff responded. [Doc. 47]. On August 25, 2015, the court ordered defense counsel to provide it with Defendant Patterson’s address so he could be served. [Doc. 38]. On October 1, 2015, Defendant Patterson was served. [Doc. 49]. Thereafter, Defendant Patterson filed a separate Motion to Dismiss for failure to state a claim, as well as insufficient service of process. [Doc. 50]. Plaintiff failed to respond to Defendant Patterson’s Motion by the extended deadline, December 30, 2015. [Doc. 51]. As of January 12, 2016, Plaintiff has not filed a response to this motion or requested an extension of time to file a response.
I. The court lacks subject matter jurisdiction over Plaintiff’s Bivens claim against Defendant Craig Thompson.
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court’s jurisdiction over subject matter is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng’rs, 841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
A motion to dismiss for a lack of subject matter jurisdiction may take two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack a complaint’s allegations or, as here, it may challenge the facts upon which subject matter jurisdiction depends. Id. at 1002-1003.
When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1003 (internal citations omitted); see also Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) ...