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Luciano v. United States

United States District Court, D. Colorado

December 29, 2017



          Nina Y. Wang, United States Magistrate Judge.

         This matter comes before the court on the United States of America's (“United States” or “Defendant”) Motion for Summary Judgment. [#57, filed May 10, 2017]. The Motion is before the court pursuant to the Order of Reference dated March 8, 2016 [#24], 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. This court has carefully considered the Motion, the entire case file, and the applicable case law and, for the following reasons, ORDERS that the Motion is GRANTED.


         Plaintiff Miguel Luciano is in the custody of the Federal Bureau of Prisons (“BOP”) and initiated this civil action on June 29, 2015 by filing a pro se prisoner complaint in the United States District Court for the Middle District of Pennsylvania, asserting claims pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671, et seq., arising from allegations of medical malpractice and negligence related to dental care he received while housed at a federal prison in Colorado. [#1-1]. The Middle District of Pennsylvania granted Plaintiff's motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, see [#1-6], prior to granting Defendant's motion to transfer venue and transferring the action to this District. [#1, #1-28]. Section 1915 and the Local Rules of this District require a court to evaluate a prisoner complaint and dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); D.C.COLO.LCivR 8.1(b). On January 4, 2016, the court directed Plaintiff to re-file the Complaint on the court-approved Prisoner Complaint form. [#5]. Plaintiff submitted the Amended Complaint in compliance with the court's order.

         The Amended Complaint is verified and avers as follows. On February 11, 2014, at the federal penitentiary in Florence, Colorado, Plaintiff underwent a tooth extraction and subsequently developed an infection. [#12 at 3]. Dr. Nixon Roberts, the BOP dentist responsible for the extraction, unsuccessfully treated Plaintiff with ibuprofen for pain.[1] On February 24, 2014, Plaintiff underwent an emergency operation with Dr. Robert McLean, at an outside hospital, to address the infection. [Id. at 4]. After Plaintiff returned to the prison, Dr. Roberts told him that his “diabetic issue was the cause of the infection as such only occurs in one in a million cases.” [Id.]. Plaintiff alleges that Dr. McLean's instructions regarding Plaintiff's recovery included removing the “Nu-Gauze” from Plaintiff's mouth no later than February 29, 2014. No one removed the “Nu-Gauze, ” and, during a March 11, 2014 check-up, Dr. McLean observed that Plaintiff's mouth was healing over the “Nu-Gauze, ” requiring that he perform a second operation on Plaintiff. [Id.]

         On October 3, 2014, Mr. Luciano filed an administrative claim arising from these allegations of negligence. [#12 at 4]. The United States failed to respond to the administrative claim. [Id.] Plaintiff initiated this civil action on June 29, 2015, and now seeks $25, 000.00 in monetary damages for the alleged negligence of Dr. Roberts and his employees. [Id. at 7]. Plaintiff identified three different alleged acts of negligence by Dr. Roberts: (1) failure to check his medical issues, specifically diabetes, prior to removing his tooth on February 11, 2014; (2) failure to provide medical attention prior to February 24, 2014, once swelling and infection had been visible for ten days; and (3) failure to follow the post-operative directions of Dr. McLean, the outside physician, which necessitated the second emergency operation. [#12 at 5].

         On April 5, 2016, the court held a Status Conference at which the undersigned led discussion regarding Mr. Luciano's plan to obtain and file a certificate of review, and granted Defendant's oral motion for an extension of time to respond to the Amended Complaint. See [#27]. On April 15, 2016, the United States filed a motion to dismiss on the singular basis that Plaintiff had failed to file a certificate of review. See [#28]. Plaintiff subsequently filed three motions for extension of time to file a certificate of review, [#31, #34, #36], which the court granted, [#32, #35, #37], permitting Plaintiff to file a certificate of review on or before July 18, 2016. Plaintiff also filed a Response to the Motion to Dismiss, arguing that a certificate of review is not jurisdictional and that the court may in its discretion determine that a certificate of review is not necessary to proceed under the FTCA. [#33]. The United States did not file a reply.

         On August 1, 2016, the court granted the motion to dismiss in part and denied it in part. See [#39]. Specifically, the court granted the motion as to the claim for negligence arising from the allegations regarding Dr. Roberts's extraction and treatment of the infection, finding that those allegations “form precisely the type of claim that requires expert testimony, and therefore, a certificate of review.” [Id. at 10]. The court denied the motion as to the claim that Dr. Roberts was negligent in failing to remove the Nu-Gauze within the 4-day time period as directed by Dr. McLean, finding that the circumstances presented by Mr. Luciano are analogous to the circumstances in which a foreign body was left in a patient after surgery, and where courts did not require a certificate of review. [Id.] The court observed that even if the remaining claim ultimately required evidence from a physician, Mr. Luciano “may be able to solicit that evidence through the examination of Dr. Roberts or Dr. McLean, ” and that “[t]he issue of the application of res ipsa loquitur or the ability of Mr. Luciano to carry his burden” would be more appropriately addressed at a later stage and after the opportunity to take discovery. [Id. at 13]. Accordingly, the Parties entered discovery with one claim for negligence pending, i.e., whether Dr. Roberts or his staff was negligent in not removing the Nu-Gauze within four days of the first surgery, as instructed by Dr. McLean.

         On August 15, 2016, the United States filed its Answer. [#41]. On September 29, 2016, the undersigned presided over a Status Conference at which she set certain pretrial dates and the following deadlines: designate principal experts on or before January 27, 2017 and rebuttal experts on or before February 27, 2017; complete discovery by March 31, 2017; and file dispositive motions by May 1, 2017. See [#47]. The court thereafter granted Defendant's motion for extension of time to file dispositive motions, see [#55; #56], and the United States filed the pending Motion for Summary Judgment on May 10, 2017. [#57]. The court instructed Plaintiff to file a response on or before June 9, 2017. See [#58]. The United States thereafter moved to vacate the July 11, 2017 Final Pretrial Conference, [#59], which the court granted, [#60]. To date, Plaintiff has not filed a certificate of review or a response to the Motion for Summary Judgment.


         Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). However, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (citation omitted). When, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying “a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation omitted). Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). See also Anderson, 477 U.S. at 256 (The nonmovant “may not rest upon mere allegation or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.”).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant, including … summary judgment proceedings.” Id. at n. 3 (citations omitted). However, the court cannot be a pro se litigant's advocate. Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008). “Although [o]ur summary judgment standard requires us to view the facts in the light most favorable to the non-moving party[, ] it does not require us to make unreasonable inferences in favor of the non-moving party.” Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008) (quoting Starr v. Downs, 117 Fed. App'x. 64, 69 (10th Cir. 2004)). Because Mr. Luciano failed to file a Response to the Motion for Summary Judgment, the court deems the properly supported facts offered by the United States as true. See Fed. R. Civ. P. 56(e)(2); Lammle v. Ball Aerospace & Techs. Corp., No. 11-cv-3248-MSK-MJW, 2013 WL 4718928, *1 (D. Colo. Sept. 1, 2013). In doing so, however, the court has reviewed the entirety of the exhibits submitted by Defendant to ascertain the context of that evidence. Despite Mr. Luciano's lack of response, the court may not enter summary judgment unless the United States carries its burden under Rule 56 of the Federal Rules of Civil Procedure. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002).


         The following facts are taken from the Motion for Summary Judgment and are supported by the record. Plaintiff's claims arose in the State of Colorado. [#12 at 3]. On February 11, 2014, Dr. Roberts extracted a tooth from the left side of Plaintiff's mouth. [#12 at 3]. On February 24, 2014, following complications from the extraction, Plaintiff was escorted to St. Mary Corwin Hospital where Dr. McLean operated on an infected abscess that had developed in Plaintiff's mouth. [#12 at 4, 20-21; #57-2 at ¶ 13]. Dr. McLean packed the wound with Nu-Gauze. [Id. at 21]. Dr. McLean is employed by St. Mary Corwin Hospital; he is a contractor and not an employee of the United States. [#57-3 at ¶¶ 11, 13, 14]. Dr. Roberts was not present during the February 24, 2014 surgery that Dr. McLean performed on Plaintiff. [#57-2 at ¶¶ 11, 12]; see [#57-3 at ΒΆ 9]. The Nu-Gauze was not timely removed. On March 11, 2014, Plaintiff returned to St. Mary Corwin Hospital for a check-up, at which ...

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