United States District Court, D. Colorado
OPINION AND ORDER
Y. Wang, United States Magistrate Judge.
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.
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
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. 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.]
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].
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.
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.
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
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)).
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.”).
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).
OF UNDISPUTED FACTS
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 ¶ 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 ...