United States District Court, D. Colorado
KRISTEN L. MIX MAGISTRATE JUDGE.
This matter is before the Court on Defendant’s Motion to Dismiss [#20] (“Motion”). Plaintiff, who proceeds in this matter pro se,  filed a Response [#31], and Defendant filed a Reply [#36]. In addition, Plaintiff has filed a Motion for Reconsideration of Order Denying Motion for Appointment of Counsel [#35] (“Motion for Reconsideration”). Defendant has not filed a Response, and the time for doing so has expired. This matter is now ripe for review. For the reasons set forth below, the Motion [#20] is DENIED and the Motion for Reconsideration [#35] is DENIED. Further, the Court will sua sponte DISMISS several of Plaintiff’s claims pursuant to his request in the Response and Rule 41(a)(2), and will DISMISS Plaintiff’s claim under the Eighth Amendment pursuant to 28 U.S.C. § 1915A(b)(1).
1. Factual Background
Plaintiff Gabriel Rodriguez-Aguirre is an inmate at the Federal Prison Camp in Englewood, Colorado (“FCP Englewood”). Compl. [#1] at 2. On December 26, 2012, Plaintif alleges that he fell while walking through a wet hallway in the Education Building at FCP Englewood. Id. at 3. Plaintiff underwent surgery in January 2013 to repair injuries to his knee sustained from this fall. Id. at 4. Thereafter, he met with doctors complaining of pain in his left shoulder throughout 2013. Id. at 5-6. The doctors performed numerous x-rays of his shoulder, none of which revealed any injury sustained as a result of Plaintiff’s December 2012 accident. Id. During this time, Plaintiff states that he fell again in November 2013 on a sidewalk covered with snow. Id. at 11.
On September 10, 2013, Plaintiff requested a Magnetic Resonance Imaging (“MRI”) test; however, this request was denied. Id. at 5. He filed two administrative complaints on September 26, 2013 and December 19, 2013, asserting that he had fallen in December 2012 and that no caution signs had been placed warning of the wet hallway. Id. at 5; Compl. [#1-2] at 33-36. As relief, he requested an MRI and pain medication. Id. After he received a response denying his requests, he appealed the decision. Id. at 6. When the appeal was denied, he appealed a second time. Id.; Compl. [#1-2] at 39. The time for responding to this appeal expired on April 28, 2014, and Plaintiff received no response by that deadline (or at all); when he inquired about his appeal, he was informed that the absence of a response amounted to a denial. Id.; Compl. [#1-2] at 41-42.
Plaintiff continued to see physicians throughout 2014, and in January 2015 he was taken to Swedish Medical Center for an MRI. Id. at 8. On his way to the Englewood Detention Center for transport to Swedish Medical Center, he claims that the Detention Center lobby was wet and, as a result, he fell and sustained more injuries. Id.
2. Procedural Background
On March 5, 2015, Plaintiff filed this action alleging that Defendant’s negligence caused Plaintiff’s injuries. Id. He identifies three falls which he claims were caused by Defendant’s negligence: (1) the December 26, 2012 accident in the FCP Englewood Education Building; (2) the November 2013 accident when he slipped and fell on a snow-covered sidewalk; and (3) the fall that occurred in January 2015 when he was on his way to Swedish Medical Center. Id. at 9. He also appears to assert either a medical negligence claim or an Eighth Amendment claim, contending that Defendant neglected to provide proper diagnosis and treatment for his injuries, which he claims should have been discovered earlier. Id. at 13. Given this ambiguity, the Court will construe the Complaint as alleging both.
On June 25, 2015, Defendant filed the present Motion to Dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6). Motion [#20]. First, Defendant argues that the Federal Tort Claims Act (“FTCA”) precludes subject-matter jurisdiction over Plaintiff’s slip-and-fall claims, and thus the Court should dismiss these claims pursuant to Rule 12(b)(1). Id. at 2. Defendant also argues that Plaintiff failed to exhaust his administrative remedies for his claims occurring on November 2013 and January 2015. Id. In the alternative, Defendant argues that Plaintiff’s slip-and-fall claims should be dismissed pursuant to Rule 12(b)(6) because he has not sufficiently alleged a claim pursuant to the Colorado Premises Liability Act (“PLA”). Id. Lastly, Defendant argues that, “with respect to [Plaintiff’s] medical negligence claims, Plaintiff has not filed a valid Certificate of Review, as required by Colorado law, ” and hence the claim should be dismissed. Id. Defendant does not address Plaintiff’s allegations in the context of the Eighth Amendment. See generally id.
In his Response, Plaintiff states that “[t]he November 2013 and January 2015 falls are not applicable/irrelevant [sic] to this Civil Action, because no additional injuries/damages occurred from these falls, ” and concedes that he did not file administrative claims as a result. Response [#31] at 3. He also asserts: “Take notice, This is [not] a medical negligence action, therefore a CERTIFICATE OF REVIEW is not required.” Id. (emphasis, capitalization, and brackets in original). Plaintiff does not clarify whether he intended to allege a violation under the Eighth Amendment, and devotes the entirety of his argument to his negligence claim relating to the December 2012 accident. See generally id.
In light of Plaintiff’s Response,  the Court dismisses Plaintiff’s claims for negligence with respect to the November 2013 and January 2015 falls, and, to the extent that it is alleged, Plaintiff’s claim for medical malpractice. These claims are dismissed pursuant to Rule 41, which provides for dismissal “at the plaintiff’s request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a)(2).
Therefore, the Court will analyze Defendant’s arguments for dismissal with respect to Plaintiff’s remaining claims, which are: (A) the claim for negligence arising out of the December 2012 accident; and (B) the claim for violation of Plaintiff’s Eighth Amendment rights as a result of Defendant’s failure to provide medical care.
II. Legal Standard
A. Rule 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because “federal courts are courts of limited jurisdiction, ” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter ...