United States District Court, D. Colorado
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 ...