Curphey v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-03433-NYW-JPO
TIMOTHY DEAN CURPHEY,
Plaintiff,
v.
LIEUTENANT WASSELL, individually,
CORRECTIONAL OFFICER WILCOX, individually,
CORRECTIONAL OFFICER KARASAWA, individually,
CORRECTIONAL OFFICER VERRAZANO, individually,
CORRECTIONAL OFFICERS JOHN DOES #1-4, individually,
DR. WINTERS, individually,
DR. NORTION, individually,
HEALTH SERVICES ADMINISTRATOR LINDGREN, individually, and
UNITED STATES OF AMERICA,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Entered by Magistrate Judge James P. O'Hara
This matter is before the Court on Defendants Wassell, Wilcox, Karasawa,
Verrazano, Dr. Winters, Lindgren, and the United States’ Motion to Dismiss Plaintiff’s
Second Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) [#83], Defendants Wassell, Wilcox, Karasawa, Verrazano, Dr. Winters, Lindgren,
and the United States’ Motion for Summary Judgment [#85], and Defendant United
States’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41(b) [#94]
(collectively, the “Motions”). The Motions have been referred to this Court. [## 84, 86, 95]
The Court has carefully considered the Motions and related briefing, the entire case file,
and the applicable case law, and has determined that oral argument would not materially
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assist in the disposition of the Motions. For the following reasons, the Court respectfully
RECOMMENDS that the Motion to Dismiss pursuant to Rule 12(b)(1) and 12(b)(6) [#83]
and the Motion for Summary Judgment [#85] be GRANTED in part and DENIED in part
as MOOT, and that Defendant United States’ Motion to Dismiss pursuant to Rule 41(b)
[#94] be DENIED.
I. BACKGROUND
A. Plaintiff’s Allegations1
Plaintiff, who proceeds pro se, is an inmate in the custody of the Federal Bureau
of Prisons (“BOP”). [#75 at 2] This action arises out of a protest by Plaintiff at the U.S.
Penitentiary in Florence, Colorado, and the response to that protest by the BOP. [See
generally #75]
On December 31, 2019, Plaintiff and his cellmate staged a protest in their cell, by
covering their cell door window, to demand certain amenities, including: hygiene supplies,
clothing, useable mattresses, linens, and stamps. [Id. at 6] A correctional officer ordered
Plaintiff and his cellmate to uncover the window, which they refused to do. [Id.] In
response, a large quantity of “foreign gas” was released into the cell. [Id.] Plaintiff and
his cellmate removed the window covering and attempted to submit to hand restraints.
[Id. at 7] After an extended period of time, Defendant Wassell ordered the door slot to be
1 The facts in this section are drawn from Plaintiff’s Second Amended Complaint [#75]
and must be taken as true for the purposes of the Motions to Dismiss. See Wilson v.
Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152,
1162 (10th Cir. 2011)). The allegations in Plaintiff’s Complaint are also considered for the
purposes of defining the issues raised in this civil action, as relevant for determining
whether Plaintiff’s Federal Tort Claims Act (“FTCA”) claims were timely filed as required
by 28 U.S.C. § 2401(b).
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opened and allowed Plaintiff to be placed in handcuffs. [Id.] “[O]ne or more of the
defendants” then entered the cell and began to punch Plaintiff in the face and head. [Id.]
Plaintiff was knocked onto the floor, and he was again punched and kicked, while “one
defendant” placed his knee on Plaintiff’s back and neck restricting his ability to move and
breathe. [Id.] Plaintiff also alleges that once he was escorted out of the cell, “one of the
defendants” punched and/or kicked Plaintiff in the face. [Id.]
As a result of the incident, Plaintiff suffered a dislocated left shoulder and a chipped
shoulder bone. [Id. at 14] Plaintiff made numerous requests to Defendant Lindgren for
medical assistance, and in response, Defendant Lindgren stated Plaintiff should “try
acting like a man instead of a woman,” asked Plaintiff if he “‘learned anything’ from his
actions,” and stated that Plaintiff would never forget “the day of his assault.” [Id. at 15]
In May of 2020, Defendant Dr. Norton evaluated Plaintiff and diagnosed him with
a partially dislocated shoulder and ordered X-rays. [Id.] In June of 2020, X-rays showed
that in addition to a dislocated shoulder, Plaintiff had a 2-centimeter piece of bone lodged
in his left shoulder muscle. [Id.] Dr. Norton requested that Plaintiff undergo orthopedic
surgery. [Id.] Plaintiff has not yet received surgery. [Id.]
B. Administrative Tort Claims2
Plaintiff filed three administrative tort claims3 (i.e. “SF-95”) with BOP related to the
2 The facts in this section are drawn, where possible, from the parties’ statements of
undisputed fact included in briefing and from the exhibits attached to the Motion for
Summary Judgment and related briefing.
3 The BOP offers an administrative tort claims procedure for inmates to file a claim
for money damages for personal injury or death and/or damage to or loss of property,
which is codified at 28 C.F.R. § 543.30 et seq. Once filed, the claim is referred to the
appropriate institution or office for investigation. 28 C.F.R. § 543.32(c). Once the
investigation is complete, the Regional Counsel or his or her designee will render a
decision. 28 C.F.R. § 543.32(d). If dissatisfied with the Regional Counsel’s decision, the
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December 31, 2019 incident, and they were filed on January 20, 2020, December 9, 2020
and January 13, 2021, respectively. [##85 at 3; 101 at 3-4 (citing #85-1 at 30, 36, 45)]
i. January 20, 2020 SF-95
On January 20, 2020, Plaintiff submitted an SF-95 alleging a personal injury claim
resulting in $7,500,000 in damages. [#85-1 at 30] The January 20, 2020 SF-95 alleged
that, on December 31, 2019, in response to Plaintiff’s protest -- when Plaintiff refused to
uncover the window – a “large amount of a OC gas” was released into the cell. [#85-1 at
31] Plaintiff was thereafter placed in handcuffs, and then the correctional officers entered
his cell and began to “viciously assault” Plaintiff. [#85-1 at 31] Correctional officers
repeatedly punched Plaintiff in the face, threw him to the ground, and then continued to
assault Plaintiff while has restrained on the floor. [Id.] Plaintiff’s reported injuries were
“lacerations over [his] right eyebrow, upper and lower lips, swollen and severely bruised
forehead, eyes, and cheeks, a busted nose, left shoulder, neck and upper back injuries
to include but not limited to contusions and severe soreness. Left kidney pain. [He] also
suffer[ed] from nightmares, anxiety, paranoia, depression, and fear of correctional
officers.” [#85-1 at 30, 32] BOP issued a denial letter via certified mail on April 7, 2021.
[#101 at 3-4 (citing #85-1 at 33)].
ii. December 9, 2020 SF-95
On December 9, 2020, Plaintiff submitted another SF-95 alleging a personal injury
claim resulting in $7,500,000 in damages. [#85-1 at 36] The December 9, 2020 SF-95
inmate may request that the Regional Counsel reconsider the claim, and file additional
evidence in support of the request for reconsideration. 28 C.F.R. § 543.32.(g). If the
inmate is dissatisfied with the final agency action, he or she may file suit in the appropriate
U.S. District Court. See 28 C.F.R. § 543.32.(g), (h).
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again alleged that, on December 31, 2019, in response to Plaintiff’s protest -- when
Plaintiff refused to uncover the window – BOP correctional officers released a large
amount of gas into the cell. [#85-1 at 36-37] Plaintiff was thereafter placed in handcuffs,
and then the correctional officers entered his cell and began to punch him in the face and
head, eventually knocking him to the ground. [#85-1 at 37] While on the ground, the
officers continued to assault Plaintiff. Plaintiff’s reported injuries were a “[b]roken &
dislocated left shoulder – x-rays/awaiting surgery . . . right eye, top lip, bottom lip; busted
nose; swollen & bruised – left & right eye; swollen & bruised left cheek & forehead; kidney
pains with bloody urine; psychological trauma – anxiety, depression, fear, nightmares,
etc.” [#85-1 at 36] BOP issued a denial letter via certified mail on July 6, 2021. [#101 at
4 (citing #85-1 at 42)]
iii. January 13, 2021 SF-95
On January 13, 2021, Plaintiff submitted an SF-95 alleging a personal injury claim
resulting in $650,000 in damages. [#85-1 at 45] Plaintiff’s January 13, 2021 SF-95
alleged BOP medical providers committed “medical malpractice” in treating his injuries
from the December 31, 2019 incident. [#85-1 at 45, 48] Plaintiff reported injuries of a
“[b]roken & dislocated left shoulder . . . muscle, tendon & ligament damage.” [#85-1 at
45] BOP issued a denial letter via certified mail on October 7, 2021. [#101 at 4 (citing
#85-1 at 50)]
C. This Lawsuit
Plaintiff initiated the instant action on December 22, 2021. [#1] Plaintiff filed the
operative Second Amended Complaint (the “Complaint”) on October 3, 2023. [#75] The
Complaint asserts eight federal claims. Specifically, the Complaint asserts six claims
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against the United States under the Federal Tort Claims Act (“FTCA”)4 for negligence
(Claim 1), negligent hiring/retention/supervision (Claim 2), battery (Claim 3), medical
negligence (Claim 4), negligent/intentional infliction of emotional distress (Claim 5), and
failure to protect (Claim 6). [Id. at 6-22] The Complaint also asserts two Eighth
Amendment claims against Defendants Wassell, Karasawa, Verrazano, John Does #1-4,
Dr. Winters, Dr. Norton and Lindgren under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (Claims 7 and 8). [#75 at 23-27] The
Complaint seeks unspecified compensatory and punitive damages. [Id. at 28]
On October 31, 2023, Defendants Wassell, Wilcox, Karasawa, Verrazano, Dr.
Winters, and Lindgren (collectively, the “Individual Defendants”) moved to dismiss the
Bivens Claims (Claims 7 and 8), and Defendant United States moved to dismiss Plaintiff’s
FTCA claim for negligent hiring, retention, and supervision (Claim 2) under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). [#83] Plaintiff did not respond to this motion.
That same day, the Individual Defendants and the United States also moved for summary
judgment on all claims except one – Plaintiff’s FTCA claim for medical negligence (Claim
4). [#85] Plaintiff filed a response to this motion for summary judgment [#101], and
Defendants replied [#106]. On December 4, 2024 Defendant United States separately
moved to dismiss Plaintiff’s FTCA claim for medical negligence (Claim 4) pursuant to
Federal Rule of Civil Procedure 41(b) based on Plaintiff’s failure to file a certificate of
review. [#94] Plaintiff did not respond to this motion.
4 Plaintiff’s FTCA claims for battery, medical negligence, and negligent/intentional
infliction of emotional distress also name other individual Defendants [see e.g., #75 at
12], but the United States was substituted as the sole Defendant on Plaintiff’s claims
arising under the FTCA. [## 81, 97]
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II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint
for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule
12(b)(1) is not a judgment on the merits of a plaintiff’s case, but only a determination that
the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576,
1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may
only exercise jurisdiction when specifically authorized to do so). A court lacking
jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes
apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906,
909 (10th Cir. 1974).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving
party may (1) facially attack the complaint’s allegations as to the existence of subject
matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting
evidence to challenge the factual basis upon which subject matter jurisdiction rests.”
Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004)
(quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When reviewing a
facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations
contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180
(10th Cir. 2002).
B. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” In deciding a motion under
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Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
C. 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., 41 F.3d 567, 569 (10th Cir. 1994). If the moving
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party bears the burden of proof at trial, “the moving party must establish, as a matter of
law, all essential elements of the [claim or defense upon which summary judgment is
sought] before the nonmoving party can be obligated to bring forward any specific facts
alleged to rebut the movant’s case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008).
In other words, the moving party “must support its motion with credible evidence showing
that, if uncontroverted, the moving party would be entitled to a directed verdict.” Rodell
v. Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770, at *3
(D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477 U.S. at 331). “Where, as here, a
defendant moves for summary judgment to test an affirmative defense, ‘[t]he defendant
. . . must demonstrate that no disputed material fact exists regarding the affirmative
defense asserted.’” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011) (quoting
Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997)). “Once the defendant makes this
initial showing, ‘the plaintiff must then demonstrate with specificity the existence of a
disputed material fact.’” Id. (quoting Hutchinson, 105 F.3d at 564). “If the plaintiff cannot
meet this burden, ‘the affirmative defense bars [her] claim, and the defendant is then
entitled to summary judgment as a matter of law.’” Id. (quoting Hutchinson, 105 F.3d at
564).
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 juror 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., v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of Ariz. v. Cities
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Serv. Co., 391 U.S. 253, 288 (1968)). In reviewing a motion for summary judgment, the
Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most
favorable to the non-moving party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210,
1216 (10th Cir. 2002).
D. Pro se Pleadings
“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.” Id. at 1110 n.3. The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of
procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
First, Defendants make several arguments in support of dismissal of Claims 1, 2,
3, 5, 6, 7, 8 in the Motion to Dismiss pursuant to Rule 12(b)(1) and 12(b)(6) [#83] and the
Motion for Summary Judgment [#85]. Because the Court agrees that (1) no Bivens
remedy exists for Plaintiff [#83 at 3-8]; and (2) Plaintiff’s FTCA claims for negligence,
negligent hiring/retention/supervision, battery, negligent/intentional infliction of emotional
distress, and failure to protect should be dismissed as untimely [#85 at 8-10], the Court
does not address Defendants’ alternative arguments supporting dismissal in these two
Motions.
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Next, in the Motion to Dismiss Plaintiff’s FTCA claim for medical negligence (Claim
4), Defendant United States argues this claim should be dismissed for failure to file a
certificate of review [#94 at 3-6]. Ultimately, the Court disagrees with Defendant. The
Court will explain each finding in turn.
A. Bivens Claims (Claims 7, 8)
The Complaint asserts two Eighth Amendment claims against Defendants
Wassell, Karasawa, Verrazano, John Does #1-4, Dr. Winters, Dr. Norton5 and Lindgren
under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971) (Claims 7 and 8). [#75 at 23-27] Specifically, Plaintiff brings claims of excessive
force and cruel and unusual punishment. [Id.] In the Motion to Dismiss pursuant to Rule
12(b)(1) and 12(b)(6), the Individual Defendants argue no Bivens remedy exists for
Plaintiff’s Eighth Amendment claims. [#83 at 3-8] This Court, bound by the decisions of
the Supreme Court and the Tenth Circuit, agrees.
Bivens established that the victims of a constitutional violation by a federal agent
have a right to recover damages against the official in federal court. 403 U.S. at 392. In
Ziglar v. Abbasi, 137 S. Ct. 1843, 1855-59 (2017), the Supreme Court adopted a two-step
approach to determine whether a plaintiff could vindicate his constitutional rights in a suit
for damages through a Bivens action. First, the Court asked whether the case presented
“a new Bivens context” such that it was “different in a meaningful way from previous
Bivens cases” including Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green,
5 The Complaint purports to assert claims against Defendant Dr. Norton. He has not
entered an appearance in this case. [#75 at 23] The allegations against Defendant Dr.
Norton suffer from the same failings identified herein. Thus, the Court believes dismissal
of the Bivens claims is appropriate as applied to Dr. Norton, even though Dr. Norton did
not participate in a dismissal motion.
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446 U.S. 14, 18 (1980). Id. at 1859. If so, then the Court examined whether there was
any alternative remedial structure present or other “special factor counselling hesitation”
in creating an implied damages remedy. Id. at 1857-58
But as the Tenth Circuit explained in an opinion published earlier this year – which
this Court will quote extensively from – the Supreme Court has tightened the vise around
Bivens and “is on course to treating Bivens as a relic of the 20th century.” Logsdon v.
United States Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024). In Logsdon, the Tenth
Circuit relied on Egbert v. Boule, 596 U.S. 482, 492 (2022) to conclude that a Bivens
remedy did not exist for the plaintiff. Summarizing its understanding of Egbert, the Tenth
Circuit stated:
Without explicitly overruling its three acknowledged precedents [that
established Bivens remedies in similar contexts], the [Supreme] Court has
shown an increasing willingness to distinguish them, now stating that the
ultimate question to ask when determining whether the courts should
recognize a Bivens cause of action not created by Congress is ordinarily
only “whether there is any reason to think that Congress might be better
equipped to create a damages remedy.” Egbert v. Boule, 596 U.S. 482, 492,
142 S.Ct. 1793, 213 L.Ed.2d 54 (2022). And the circumstances in which
the answer to the question is “no” appears to comprise a null set. See id. at
503[.]
91 F.4th at 1355. The Tenth Circuit continued, “perhaps even more striking, the
[Supreme] Court has justified a departure from those precedents even when the facts are
virtually the same if the government can provide a reason for not recognizing a cause of
action that was not considered in the applicable precedent.” Id. Such a reason includes,
in the Tenth Circuit’s reading, the existence of an alternative remedial process. Id. at
1356–57.
The Tenth Circuit in Logsdon “conclude[ed their] analysis should focus on that
single question,” id. at 1357, “whether there is any reason to think that Congress might
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be better equipped to create a damages remedy.” Id. (quoting Egbert, 596 U.S. at 492).
The Tenth Circuit then found three features of Logsdon that meaningfully differed from
Bivens, one of which was “the existence of other remedies for misconduct.” Id. at 1357.
The Tenth Circuit explained that Egbert instructed:
So long as Congress or the Executive has created a remedial process that
it finds sufficient to secure an adequate level of deterrence, the courts
cannot second-guess that calibration by superimposing a Bivens remedy.
That is true even if a court independently concludes that the Government’s
procedures are not as effective as an individual damages remedy.
Id. at 1359 (quoting Egbert, 596 U.S. at 498) (omission of internal quotation marks
maintained).
Another court in this district succinctly summarized the Bivens inquiry after
Logsdon:
[T]he Court sees two potential avenues for district courts in the Tenth
Circuit: either (1) the two Ziglar questions remain, but following Egbert, the
order of consideration is immaterial because an affirmative answer to either
provides an “independent reason” to deny a Bivens remedy, or (2) the two
questions have collapsed into one because the existence of an “alternative
remedial structure” or other “special factors” not considered in
Bivens/Carlson is both a “meaningful difference” and an indication that
“Congress might be better equipped to create a damages remedy.” Ziglar,
582 U.S. at 122, 136; Egbert, 596 U.S. at 492; Silva, 45 F.4th at 1141 n.5;
91 F.4th at 1357.
In Logsdon, although not explicitly mandating one of these analytical
frameworks, the Tenth Circuit clearly indicates a preference for the latter.
91 F.4th at 1357 (“In this case we conclude our analysis should focus on
that single question.”) Of course, whichever framework is used, the outcome
in this case is the same, the existence of an alternative remedial process
not considered in Carlson—including the BOP Administrative Remedy
Program—forecloses the availability of Bivens to plaintiffs seeking damages
for constitutional violations by federal officials. Silva, 45 F.4th at 1141; Noe
I, 2023 WL 8868491, at *3; see also Corr. Serv. Corp. v. Malesko, 534 U.S.
61, 74 (2001) (explaining that Bivens relief was unavailable where a federal
prisoner could, amongst other options, file grievances through the
Administrative Remedy Program).
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Noe v. United States, No. 21-CV-03340-CMA-STV, 2024 WL 1464375, at *5 (D. Colo.
Apr. 4, 2024)
Here, Plaintiff does not dispute that his allegations of excessive force and cruel
and unusual punishment fall within the BOP’s Administrative Remedy Program6. [See
##75 at 24, 26; 101 at 2-3; 6-8 (discussing exhaustion of administrative remedies)]
Pursuant to the case law outlined above, the Court has no choice but to dismiss Plaintiff’s
Bivens claim against the Individual Defendants.
Accordingly, the Court RECOMMENDS that Plaintiff’s Eighth Amendment claims
(Claims 7 and 8) against the Individual Defendants be DISMISSED WITH PREJUDICE
due to the lack of a Bivens remedy.
B. Untimely FTCA Claims (Claims 1, 2, 3, 5, 6)
The Complaint asserts six claims against the United States under the FTCA:
negligence (Claim 1), negligent hiring/retention/supervision (Claim 2), battery (Claim 3),
medical negligence (Claim 4), negligent/intentional infliction of emotional distress (Claim
5), and failure to protect (Claim 6). In the Motion for Summary Judgment,7 Defendant
asserts that five of the six FTCA claims brought against the United States should be
dismissed as untimely.8 [#85 at 8-10] The Court agrees.
6 The BOP Administrative Remedy Program “allow[s] an inmate to seek formal review of
an issue relating to any aspect of his/her confinement.” 28 C.F.R. § 542.10(a). It “applies
to all inmates in institutions operated by [the BOP] . . . .” Id. at § 542.10(b).
7 The Court addresses the timeliness of Plaintiff’s administrative claims under a Rule 56
standard, because that argument is not jurisdictional and requires the Court to examine
materials outside the pleadings. United States v. Wong, 575 U.S. 402, 410-12 (2015)
(holding 28 U.S.C. § 2401(b) is not jurisdictional). Plaintiff does not dispute the contents
or authenticity of the Motion’s exhibits; in fact Plaintiff cites to the attached exhibits in his
response brief. [#101 at 3 (citing #85-1)]
8 Defendants do not dispute that Plaintiff’s FTCA claim for medical negligence (Claim 4)
was timely filed. [#85 at 8-9] Rather, in the United States’ Motion to Dismiss pursuant to
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The Federal Tort Claims Act (“FTCA”) “is a limited waiver of sovereign immunity,
making the Federal Government liable to the same extent as a private party for certain
torts of federal employees acting within the scope of their employment.” Lopez v. United
States of America, 823 F.3d 970, 975-76 (10th Cir. 2016) (quoting United States v.
Orleans, 425 U.S. 807, 813 (1976)). Section 2401(b) of the FTCA “bars any tort claim
against the United States unless it is presented to the appropriate federal agency within
two years of the claim's accrual, and filed within six months after notice of denial of the
claim by that agency.” In re Franklin Savings Corp., 385 F.3d 1279, 1287 (10th Cir. 2004)
(citing 28 U.S.C. § 2401(b)).
Here, Plaintiff filed his first SF-95 related to the December 31, 2019 incident on
January 20, 2020, alleging that BOP correctional officers entered his cell and assaulted
him following the protest. [## 85 at 3; 101 at 3-4 (citing 85-1 at 30)]. Plaintiff’s reported
injuries were “lacerations over [his] right eyebrow, upper and lower lips, swollen and
severely bruised forehead, eyes, and cheeks, a busted nose, left shoulder, neck and
upper back injuries to include but not limited to contusions and severe soreness. Left
kidney pain. [He] also suffer[ed] from nightmares, anxiety, paranoia, depression, and fear
of correctional officers.” [#85-1 at 30, 32] Plaintiff sought $7,500,000 in damages [#85-1
at 30], and the administrative tort claim was denied on April 7, 2021. [## 101 at 4 (citing
85-1 at 33)].
Plaintiff filed a second SF-95 on December 9, 2020, alleging that BOP correctional
officers entered his cell and assaulted him following the protest. [## 85 at 3; 101 at 3-4
Federal Rule of Civil Procedure 41(b), Defendant argues the medical negligence claim
should be dismissed solely for failure to file a certificate of review. [#94] The Court will
address this argument infra Section III.C.
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(citing 85-1 at 36)] Plaintiff’s reported injuries were a “[b]roken & dislocated left shoulder.
. . right eye, top lip, bottom lip; busted nose; swollen & bruised – left & right eye; swollen
& bruised left cheek & forehead; kidney pains with bloody urine; psychological trauma –
anxiety, depression, fear, nightmares, etc.” [#85-1 at 36] Plaintiff sought $7,500,000 in
damages [#85-1 at 36], and the administrative tort claim was denied on July 6, 2021 [##
101 at 4 (citing 85-1 at 42)].
In the Motion for Summary Judgment Defendant United States argues that, under
the FTCA, Plaintiff was required to file his lawsuit in federal court within six months of the
denial of his first administrative claim, or by October 7, 2021. [#85 at 8-9] Because the
Complaint was not filed until December 22, 2021 [#1], Defendant argues, it is time-barred.
[#85 at 10]
In response, Plaintiff argues the second-filed administrative claim was “intended
to supplement and/or amend” the first-filed administrative claim. [#101 at 13-14
(Declaration of Timothy Dean Curphey)] Therefore, Plaintiff argues, his second SF-95—
the December 9, 2020 SF-95—extended Section 2401(b)’s six-month filing requirement;
and thus the deadline to file the Complaint was six months from when Plaintiff received
the second denial letter, or by January 6, 2022. [#101 at 9]
Although the intention supposedly was to amend or supplement through filing the
second SF-95, upon review of the documents, the Court finds both SF-95s are
functionally the same. The January 20, 2020 SF-95 and the December 9, 2020 SF-95
relate to the same event (the December 31, 2019 assault), and the December 9, 2020
SF-95 makes no additional claims or statements concerning the December 31, 2019
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assault. [Compare #85-1 at 30 with id. at 36] The SF-95s also seek the same amount in
damages and assert the same category of injuries. [Id.]
“Where a party files duplicative administrative claims, the court may regard the
second claim ‘as either an attempt to re-file the original claim or an attempt to have the
agency reconsider its disposition of the original claim.’” Pedro v. Smith, No. 11-CV-02746-
CBS, 2012 WL 4442805, at *9 (D. Colo. Sept. 26, 2012) (citing Roman–Cancel v. United
States, 613 F.3d 37, 42 (1st Cir. 2010)). “Either way, the second claim in this case is a
nullity . . . If the second claim is viewed as an attempt to re-file, it would not reconfigure
the FTCA statute of limitations.” Id. “Nothing to change the substance of the claims
occurred in the interval between the first and second filings.” Id. Thus, “the second
administrative claim served no legitimate purpose.” Id. “[H]onoring a re-filed claim would
frustrate the goal of the FTCA's filing deadlines.” Id. “[O]ne bite at the apple is all that the
FTCA's claim-filing scheme allows.” Id.
Consequently, the first administrative claim is the relevant claim for the purpose of
determining the timeliness of the instant action, and the first administrative claim was
denied on April 7, 2021. [## 101 at 4 (citing 85-1 at 33)]. Plaintiff had six months from
that date within which to sue. See 28 U.S.C. § 2401(b). He commenced this suit on
December 22, 2021. [#1] This was eight months and fifteen days after the denial of the
relevant administrative claim, which is untimely. See Soto v. Matthews, No. 18-cv-02319-
KMT, 2020 WL 1183365, at *3 (D. Colo. Mar. 12, 2020) (holding that “FTCA claim is
‘forever barred’ because [plaintiff] did not file this lawsuit on or before … six months after
the date of mailing, by certified mail, of the notice of the BOP’s final denial of his
administrative claim”). Accordingly, the Court RECOMMENDS that Defendants’ Motion
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for Summary Judgment [#85] be GRANTED as to Claims 1, 2, 3, 5, and 6 against the
United States.
C. FTCA Claim for Medical Negligence (Claim 4)
Finally, Plaintiff brings an FTCA claim against the United States for medical
negligence based on the alleged medical malpractice of Defendants Dr. Norton and
Lindgren. [#75 at 14-18] Defendant United States filed a Motion to Dismiss, arguing that
Plaintiff’s FTCA claim should be dismissed in its entirety pursuant to Federal Rule of Civil
Procedure 41(b) for failure to file a certificate of review. [#94] The Court disagrees.
Colorado law applies to suits brought against the United States under the FTCA
and, thus, Colorado’s certificate of review requirement applies. Coleman v. United States,
803 F. App'x 209, 212 (10th Cir. 2020); Hill v. SmithKline Beecham Corp, 393 F.3d 1111,
1117 (10th Cir. 2004). Colo. Rev. Stat. § 13-20-602(1)(a) states as follows:
In every action for damages or indemnity based upon the alleged
professional negligence of . . . a licensed professional, the plaintiff’s or
complainant’s attorney shall file with the court a certificate of review for each
. . . licensed professional named as a party, as specified in subsection (3)
of this section, within sixty days after the service of the complaint,
counterclaim, or cross claim against such person unless the court
determines that a longer period is necessary for good cause shown.
“The certificate of review requirement is not jurisdictional; rather, it acts as an
affirmative defense that may be waived.” Morales v. Rattan, No. 17-cv-03009-PAB-KLM,
2019 WL 588192, at *3 (D. Colo. Feb. 13, 2019) (quotation omitted) (citing Miller v.
Rowtech, LLC, 3 P.3d 492, 494-95 (Colo. App. 2000)). Before dismissing a claim for
failure to provide a certificate of review, a court must first “determine[] whether expert
testimony and therefore a certificate of review are required.” Coleman, 803 F. App'x at
213; see also Coleman v. United States, No. 18-CV-01965-KMT, 2020 WL 6151005, at
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*3 (D. Colo. Oct. 20, 2020) (dismissing on remand the plaintiff’s claim for failure to provide
a certificate of review after analyzing whether a certificate of review was necessary), aff'd,
No. 20-1403, 2021 WL 2835473 (10th Cir. July 8, 2021). Courts have discretion to
determine whether a certificate of review is necessary. Keller v. U.S. Dep’ t of Veteran
Affairs, No. 08-cv-00761-WYD-KLM, 2008 WL 5330644, at *4 (D. Colo. Dec. 19, 2008)
(citing Giron v. Koktavy, 124 P.3d 821, 825 (Colo. App. 2005)). “[A] certificate of review
is necessary only for those claims of professional negligence which require expert
testimony to establish a prima facie case.” Giron, 124 P.3d at 825. A certificate of review
is typically required for medical malpractice claims based on negligence because most of
those claims require expert testimony. Shelton v. Penrose/St. Francis Healthcare Sys.,
984 P.2d 623, 627 (Colo. 2000). If a certificate of review is necessary, courts will not
excuse pro se plaintiffs from the requirement of filing a certificate of review. Yadon v.
Southward, 64 P.3d 909, 912 (Colo. App. 2002). However, in medical negligence cases
that do not “involve a level of technical knowledge and skill beyond the realm of lay
knowledge and experience,” expert testimony is not required to prove the plaintiff's claims.
Williams v. Intervention, Inc., No. 23-CV-01201-NYW-STV, 2024 WL 1088359, at *7 (D.
Colo. Feb. 20, 2024).
Here, “the factual allegations of Plaintiff’s medical negligence claims are
sufficiently straightforward that expert testimony may not be required to substantiate
them.” Id. Plaintiff contends that he had a dislocated shoulder and a chipped shoulder
bone. [#75 at 14-18] He asserts that Defendants Dr. Norton and Lindgren’s medical care
for those injuries was deficient where: (1) Plaintiff requested medical assistance, and in
response, Defendant Lindgren stated that Plaintiff should “try acting like a man instead of
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a woman” and asked if Plaintiff “’learned anything’ from his actions” and “the day of [the]
assault was a day he would never forget” [#75 at 15]; (2) Plaintiff was denied medical
assistance for nearly six months after the assault [id.]; (3) despite the several diagnoses,
Plaintiff was denied medication to help manage the pain [id.]; and (4) despite Plaintiff’s
apparent injuries, Defendant Dr. Norton attributed Plaintiff’s injuries to a fall, rather than
the assault [id.]. “[C]ourts have found that a plaintiff alleging negligent treatment may not
be required to introduce expert testimony where the trial court decides, in its discretion,
that ‘the factual context of the proceeding is not sufficiently complex to require expert
testimony for establishing the applicable professional standards and minimal levels of
competence.’” Williams, 2024 WL 1088359, at *8 (citing Morales v. Rattan, No. 17-CV-
03009-PAB-KLM, 2019 WL 588192, at *5 (D. Colo. Feb. 13, 2019)). The Court concludes
that, as alleged, Plaintiff's claim for medical negligence “comes within the class of cases
where the opinion of expert witnesses, though helpful, is not indispensable.” Farrah v.
Patton, 59 P.2d 76, 78 (Colo. 1936). The factual circumstances that form the basis of
Plaintiff’s negligent treatment claim—that despite the clear indications of injury,
Defendants Dr. Norton and Lindgren failed to provide Plaintiff with pain medication or a
medical examination for at least six months [see #75 at 15]—appear, at the pleading
stage, to be accessible to a layperson and do not appear to require technical expertise to
understand.
Because the Court finds that because expert testimony may not be necessary to
establish Plaintiff’s medical negligence claims, Plaintiff was not required to file a certificate
of review, and the Court RECOMMENDS that Defendant United States’ Motion to Dismiss
Pursuant to Fed. R. Civ. P. 41(b) be DENIED.
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IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS the following:
(1) Defendants’ Motion to Dismiss pursuant to Rule 12(b) and (12)(b)(6) [#83]
be GRANTED as to Claims 7 and 8;
(2) Defendants’ Motion for Summary Judgment [#85] be GRANTED as to
Claims 1, 2, 3, 5, and 6;
(3) Defendant United States’ Motion to Dismiss Claim 4 pursuant to Rule 41(b)
be DENIED.9
DATED: May 10, 2024 BY THE COURT:
s/James P. O'Hara
United Stated Magistrate Judge
9 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
the district court on notice of the basis for the objection will not preserve the objection for
de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
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