Morales v. Rattan

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant United States of America's Motion to Dismiss Medical Negligence Claim for Failure to File a Certificate of Review [#19]^[1](the “Motion”).^[2] Plaintiff, who proceeds in this matter as a pro se litigant, ^[3] filed a Response [#24] in opposition to the Motion. The United States did not file a Reply. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion has been referred to the undersigned for a recommendation regarding disposition. See [#21]. The Court has reviewed the Motion, the Response, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#19] be GRANTED.

         I. Summary of the Case

          Plaintiff is a pro se inmate currently confined at the Bureau of Prisons' (“BOP”) U.S. Penitentiary in Florence, Colorado. Compl. [#1] at 1. On December 14, 2017, Plaintiff filed his Prisoner Complaint [#1] against Defendant Sattinder Rattan in his individual and official capacity as a prison healthcare provider, citing the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 2671-2680, as the basis for this Court's jurisdiction. Id. at 3, 4.

         Plaintiff's claims involve an ulcer or infection^[4] of Plaintiff's big right toe which was allegedly caused or aggravated by Plaintiff's Type II diabetes and ultimately required amputation of the toe. Id. at 3-5. Plaintiff alleges that Defendant Rattan acted negligently as Plaintiff's “custodial medical caretaker” by failing to appropriately treat the ulcer or infection prior to the amputation despite Plaintiff's medical history, Plaintiff's repeated complaints, and the obvious severity of Plaintiff's condition. Id. at 4-5. Specifically, Plaintiff alleges that Defendant Rattan wrongfully diagnosed the ulcer or infection as a foot fungus and directed Plaintiff to treat the toe with a fungal cream which was inadequate. Id. at 3-4. Plaintiff further states that the surgeon who performed the amputation informed Plaintiff “that the toe could have been saved had Plaintiff received earlier treatment.” Id. at 5.

         On the face of the Complaint [#1], Plaintiff presents only one claim for relief in which he states that Defendant Rattan “unnecessarily created negligent acts with a reckless disregard for medical needs, causing me to lose a limb[ ] (my right big toe).” Id. at 4. Plaintiff also states that Defendant Rattan acted with deliberate indifference “to Plaintiff's medical [ ]needs, in violation of the E[i]ghth Amendment under cruel and unusual punishment.” Id. at 5. For relief, Plaintiff seeks money damages from Defendant Rattan and an “order granting an injunction in obtaining recordings of inmate complaints lodged against” Defendant Rattan. Id.

         On March 26, 2018, Defendant Rattan filed the instant Motion [#19] and the Motion for Partial Summary Judgment [#20] (the “Motion for Summary Judgment”). Taken together, the Motions [#19 & #20] construe Plaintiff's Complaint [#1] as asserting the following two claims: (1) an FTCA^[5] claim against Defendant Rattan for medical negligence; and (2) a Bivens claim against Defendant Rattan for deliberate indifference under the Eighth Amendment. Plaintiff filed a consolidated Response [#24] to both Motions [#19 & #20] on April 12, 2018, in which Plaintiff does not appear to contest this construction. See generally [#24]. Accordingly, and after careful review of the Complaint [#1], the Court construes Plaintiff's Complaint as asserting both an FTCA claim for medical negligence against Defendant Rattan in his official capacity and an Eighth Amendment Bivens claim for medical indifference against Defendant Rattan in his individual capacity. The instant Motion [#19] seeks to dismiss only Plaintiff's FTCA claim due to Plaintiff's failure to file a certificate of review as required by Colo. Rev. Stat. § 13-20-602. See [#19] at 1, 3-4.^[6]

         On April 2, 2018, the Court granted Plaintiff's request to take judicial notice of a letter, dated October 12, 2017, addressed to Plaintiff from the U.S. Department of Justice (the “Denial Letter”). Minute Order [#22]. According to the Denial Letter, it serves as notification of the final denial of an unidentified federal tort claim under 28 C.F.R. § 14.9. See Denial Letter [#16] at 3. The Court took judicial notice of the Denial Letter pursuant to Fed.R.Civ.P. 12(b)(1) to the extent that it had any impact on the adjudication of the Court's subject matter jurisdiction over this action. Minute Order [#22] (citing Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000)).

         On June 11, 2018, the United States filed a Notice of Substitution [#29] certifying that Defendant Rattan was acting within the scope of his federal employment with the BOP at all times material to the allegations in the Complaint [#1]. [#29] at 1. As such, and pursuant to 28 U.S.C. § 2679(d)(1), the United States was substituted for Defendant Rattan on Plaintiff's FTCA claim for medical negligence. [#29]. Accordingly, the United States is the proper defendant with respect to Plaintiff's FTCA claim for purposes of the instant Motion [#20].

         II. Standard of Review

          The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” TON Services, Inc. v. Qwest Corp., 493 F.3d 1225, 1235 (10th Cir. 2007) (citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). As the Tenth Circuit has explained, “[t]he court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted) (internal quotation marks omitted). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 566 U.S. at 679 (citation omitted) (internal quotation marks omitted).

         III. Analysis

         As stated above, the United States argues that Plaintiff's FTCA claim for medical negligence should be dismissed because Plaintiff has failed to file a certificate of review as required by C.R.S. § 13-20-602. See Motion [#19] at 1, 3-4. Plaintiff concedes that he has not filed a certificate of review but asserts that a certificate of review is not necessary because “[a]n expert witness is not needed in this matter.” Response [#24] at 2. The parties appear to agree, and the Court concurs, that Colorado law applies to the present dispute because the alleged negligence occurred in the State of Colorado. See Motion [#19] at 3; Response [#24] at 2; see FDIC v. Meyer, 510 U.S. 471, 478 (1994) (stating ...