Opinion
Civil Action 21-cv-01589-CNS-STV
12-14-2022
PETER GEORGE NOE Plaintiff, v. UNITED STATES, DR. BURKLEY, H. SCHOUWEILER, MS. DUNN, MS. FELLOWS, and FEDERAL BUREAU OF PRISONS Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This Matter comes before the Court on three Motions: a Partial Motion to Dismiss filed by all Defendants [#114], a Partial Motion to Dismiss filed by Defendant United States [#144], (together, the “Motions to Dismiss”), and a “motion for emergency order” filed by Plaintiff (the “Emergency Motion”) [#160]. These Motions have been referred to this Court. [##115; 146; 161] This 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 assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Motions to Dismiss be GRANTED, and that Plaintiff's Complaint be DISMISSED. The Court further RECOMMENDS that the Emergency Motion be DENIED.
The facts are drawn from the allegations in Plaintiff's Second Amended Complaint (the “Complaint”), and Plaintiff's attached Affidavit, which the Complaint incorporates by reference. [#94]; see Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (explaining that a court may consider documents attached to a complaint and incorporated by reference). The Court accepts these allegations as true at this stage of the proceedings. 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)).
Plaintiff, who proceeds pro se, is a convicted and sentenced federal prisoner, housed at USP Florence ADMAX (“ADX”). [#94 at 3] In November 2019, Plaintiff broke a tooth and had an appointment with ADX dentist Dr. Burkley. [Id. at 6] At that appointment, Plaintiff told Dr. Burkley that he had problems with five total teeth (the “Affected Teeth”). [Id.] Dr. Burkley examined all of the Affected Teeth. [Id. at 6-7] Dr. Burkley explained that two of the Affected Teeth (“Teeth #1 and #2”) were “all filling from previous dental work,” but were not medically appropriate for extraction and that Plaintiff “need[ed] crowns on those two teeth.” [Id.] Dr. Burkley further explained that another one of Plaintiff's teeth (“Tooth #3”) was “broken in half,” but was not considered medically appropriate for extraction and “needed a crown.” [Id. at 7] Dr. Burkley informed Plaintiff that he would “lose all three of the teeth that need[ed] crowns” because ADX told facility dentists that they were “not allowed to request crowns due to them costing to[o] much money.” [Id. at 8] Finally, Dr. Burkley said that the remaining two Affected Teeth (“Teeth #4 and #5”) could be fixed with fillings. [Id. at 7] During that appointment, Dr. Burkley attempted to “fix” Tooth #3 by putting a filling in and explained that-because of an ADX policy permitting only “one procedure, per inmate, per visit”-Plaintiff would have to return on other occasions to fix the remaining teeth. [Id. at 7-9]
The filling in Tooth #3 did not improve Plaintiff's pain, so Plaintiff sought additional care and was called back to Dental. [Id. at 9] Dr. Burkley again explained that Tooth #3 “needed a crown” but since he could not provide a crown he “would have to ‘figure something out.'” [Id.] Dr. Burkley filled Tooth #3 again and placed Plaintiff back on the waiting list, refusing to address the other Affected Teeth. [Id.] Plaintiff sent numerous requests for further dental care, but “[f]or the next six months [Plaintiff] was left suffering.” [Id. at 9-10]
On June 3, 2020, Dr. Burkley visited Plaintiff's cell. [Id. at 10] Dr. Burkley told Plaintiff that he knew of Plaintiff's “broken teeth but couldn't fix them due to [COVID-19].” [Id.] On June 17th, however, Plaintiff returned to Dental. [Id. at 10] Plaintiff asked Dr. Burkley to treat his three broken teeth (i.e., Teeth #3, #4, and #5) because they were all causing substantial pain. [Id. at 11] Dr. Burkley refused, instead only treating Tooth #3. [Id.] Dr. Burkley proceeded to “drill out and put a pin [and filling]” in Tooth #3. [Id. at 11, 26] This procedure “caused unbearable pain, [and] broke [Tooth #3],” which had “rotted over the seven month delay.” [Id. at 11, 26] Plaintiff returned to Dental on July 31st, and Tooth #3 was removed. [Id. at 26] During that visit, Plaintiff again asked for Teeth #4 and #5 to be treated due to the pain, but treatment on those teeth was refused. [Id.] On August 27th, Plaintiff was called to Dental for an x-ray on Teeth #4 and #5. [Id. at 26] Plaintiff was told that one tooth had a “crack” and one was “broken,” but was refused treatment on the teeth.[Id.]
Plaintiff was not provided with pain medication during this time period. [Id. at 11]
Plaintiff filed several more requests to be seen by Dental. [Id. at 12] These requests either went unanswered, or Plaintiff was informed by Defendant Schouweiler-a dental assistant at ADX “responsible for scheduling appointments”-that Plaintiff was “on the list.” [Id.] Several times between June 2020 and November 2020, Plaintiff also stopped Defendants Dunn and Fellows, both nurses at ADX, and requested dental care. [Id. at 12-13] Defendants Dunn and Fellows promised to “make sure [Plaintiff's requests] were logged,” but failed to put Plaintiff's requests in his file “with the exception of one from [Ms.] Fellows.” [Id. at 13]
On November 12, 2020, Plaintiff returned to Dental, and Dr. Burkley placed a filling in Tooth #4. [Id.] Dr. Burkley again refused treatment on Plaintiff's other broken tooth and refused to place crowns on Teeth #1 and #2. [Id.] Dr. Burkley also denied Plaintiff pain medication. [Id.]
Plaintiff continued to send dental requests. [Id. at 14] In one request, Plaintiff “explain[ed] he was tired of suffering and that if they didn't treat him he would file again.” [Id.] Defendant Schouweiler responded that Plaintiff “could ‘file' all he wants and that he was not to ‘threaten her.'” [Id.] Plaintiff filed a grievance, and “in retaliation” Dr. Burkley and Ms. Schouweiler reported to the warden that Plaintiff's teeth had been fixed in November 2020. [Id.]
On April 1, 2021, Plaintiff received treatment on Tooth #5. [Id. at 15] Plaintiff “is still . . . in substantial pain with [Teeth #1 and #2] that need crowns.” [Id.] Plaintiff filed this lawsuit on May 26, 2021 [#1] and filed his operative Complaint on April 27, 2022 [#94].
In his Complaint, Plaintiff brings three claims for relief against the United States, BOP, and various medical providers at ADX regarding Plaintiff's dental care. [Id.] In Claim One, Plaintiff alleges that Dr. Burkley, Ms. Schouweiler, Ms. Dunn, and Ms. Fellows (the “Individual Defendants”) violated Plaintiff's Eighth Amendment rights by intentionally denying and delaying his dental care and interfering with his treatment, bringing the claim pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).[#94 at 6-15] In Claim Two, Plaintiff brings a claim of medical negligence against Defendant United States Government under the Federal Tort Claim Act (“FTCA”), arising out of Dr. Burkley's refusal to provide Plaintiff with crowns. [Id. at 16-18] Finally, in Claim Three, Plaintiff brings an Eighth Amendment claim against Defendant Federal Bureau of Prisons (“BOP”) for “enforcing a policy that is deliberately indifferent to serious medical needs.” [Id. at 19] Claim Three seeks only injunctive relief. [Id. at 22]
A Bivens action provides a “private action for damages against federal officers” in certain limited circumstances. Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
Defendants filed a partial motion to dismiss, seeking to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and (b)(6), except to the extent that Plaintiff's FTCA claim related to a single tooth for which Plaintiff had exhausted his administrative remedies. [#114] Defendant United States Government then filed a motion to dismiss Plaintiff's FTCA claim in its entirety pursuant to Federal Rule of Civil Procedure 41(b) based on Plaintiff's failure to file a certificate of review. [#144] The Motions to Dismiss have been fully briefed, and supplemental briefing has been filed and accepted in regards to #114. [##121, 122, 140-1, 147, 149, 153, 155] Plaintiff then filed his Emergency Motion, which has not received briefing. [#160]
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.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under 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.” Casanova 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. Pro Se Litigants
“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 Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
Defendants argue in their partial motion to dismiss that: the Court lacks subject matter jurisdiction over Ms. Fellows based on her absolute immunity [#114 at 5]; Plaintiff's claims against the Individual Defendants should be dismissed because the Individual Defendants are entitled to qualified immunity [id. at 6-12]; Plaintiff failed to plead facts showing an Eighth Amendment violation by the BOP [id. at 12-14]; and Plaintiff's FTCA claim should be dismissed for failure to exhaust administrative remedies, except to the extent that it relates to Tooth #3 [Id. at 14-15]. In its subsequently filed Motion to Dismiss, Defendant United States Government argues that Plaintiff's FTCA claim should be dismissed in its entirety for failure to file a certificate of review as required by Colo. Rev. Stat. § 13-20-602. [#144] The Court proceeds by analyzing its jurisdiction over Plaintiff's claim against Ms. Fellows, then Plaintiff's claim against the remaining Individual Defendants, then Plaintiff's claim against the BOP, and finally Plaintiff's FTCA claim.
A. Absolute Immunity
Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff's claim against Ms. Fellows due to the absolute immunity provided to Public Health Service (“PHS”) officers. [##114 at 5; 122 at 1-3] 42 U.S.C. § 233(a) “grants absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of employment by barring all actions against them for such conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010). Bivens claims against PHS officers acting within the scope of their employment should be dismissed for lack of subject matter jurisdiction. See Weeks v. Barkman, No. 20-cv-00544-PAB-NYW, 2021 WL 4555999, at *5 (D. Colo. Mar. 22, 2021) (dismissing Bivens claims against PHS officers for lack of jurisdiction), report and recommendation adopted, No. 20-cv-00544-PAB-NYW, 2021 WL 4146001 (D. Colo. Sept. 13, 2021); Pitts v. Fed. Bureau of Prisons, No. 20-cv-01422, 2021 WL 849812, at *4 (D. Colo. Feb. 16, 2021) (finding that the court lacked subject matter jurisdiction over a commissioned PHS officer who was entitled to absolute immunity under § 233(a)), report and recommendation adopted, 2021 WL 848345 (D. Colo. Mar. 5, 2021); Freeman v. Vineyard, No. 10-cv-02690-MSK-CBS, 2012 WL 1813119, at *6 (D. Colo. May 18, 2012) (dismissing for lack of subject matter jurisdiction the plaintiff's claims against PHS officers under § 233(a) because the Attorney General certified that these officers were acting within the scope of their employment).
Ms. Fellows has provided a sworn declaration stating that, during all times at issue, she was a commissioned PHS officer at ADX and that “any action taken by [her] with regard to [Plaintiff] was done . . . within the course and scope of [her] employment as commissioned officer with the PHS, stationed at the ADX.”[#114-2 at ¶ 3] Plaintiff contends that Ms. Fellows's failure to file Plaintiff's medical requests fell outside of the scope of her duty because she did not follow the standard of care or facility policy. [#121 at 1-6] However, Section 233(a) exists to provide immunity from such alleged violations, and would serve little purpose if it could be pleaded around by alleging a violation of the standard of care or policy. See Weeks v. Barkman, No. 20-CV-00544-PAB-NYW, 2021 WL 4146001, at *2 (D. Colo. Sept. 13, 2021) (rejecting the argument that PHS officers do not act within the scope of their employment when they fail to follow the standard of care as “contrary [to] § 233(a)”). Here, Plaintiff alleges that Ms. Fellows took Plaintiff's requests for dental care but failed to adequately file them. [#94 at ¶¶ 22-23] Ms. Fellows's alleged action or inaction was therefore “related to [P]laintiff's medical care” such that she was acting in the scope of her employment. See Weeks, 2021 WL 4146001 at *2 (“Because [PHS officers'] alleged action and inaction were related to plaintiff's medical care, the Court finds that they were acting within the scope of their employment.”); Pitts, 2021 WL 849812 at *4 (finding that allegations arising from performance of medical function were within the scope of employment of PHS employee); Camerano v. United States, 196 F.Supp.3d 172, 180 (D. Mass. 2016) (finding that court did not have jurisdiction over Bivens claim brought against PHS employees when plaintiff alleged that defendants violated the standard of care).
This declaration by Ms. Fellows is properly considered under Rule 12(b)(1). Weeks, 2021 WL 4555999, at *4 (explaining that “[t]he court has wide discretion on Rule 12(b)(1) motions to dismiss to consider evidence outside the pleadings where the factual basis for subject matter jurisdiction is challenged” and considering declarations stating that certain defendants were immune to suit based on their roles as commissioned PHS officers).
Accordingly, the Court RECOMMENDS that Plaintiff's claim against Ms. Fellows be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
A dismissal for lack of subject matter jurisdiction should be without prejudice. See Webb v. Utah, 706 Fed.Appx. 470, 474 (10th Cir. 2017) (citing Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)).
B. Plaintiff's Bivens Claims
Plaintiff alleges that the Individual Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. [#94 at 15] The Eighth Amendment to the United States Constitution protects a prisoner's right to “humane conditions of confinement guided by ‘contemporary standards of decency.'” Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials are required to “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). Prison officials violate this standard when they are deliberately indifferent to an inmate's serious medical needs. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). “[D]ental care is one of the most important medical needs of inmates.” Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980).
“‘Deliberate indifference' involves both an objective and a subjective component. The objective component is met if the deprivation is ‘sufficiently serious.'” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A sufficiently serious medical need “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). “The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Crowson v. Washington Cnty., 983 F.3d 1166, 1178 (10th Cir. 2020).
The Supreme Court has made clear that a prisoner asserting a deliberate indifference claim has some fairly high hurdles to clear. Mere negligence on the part of his medical providers is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component [of a deliberate indifference claim] is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839).
Nonetheless, a prisoner who can clear these high hurdles, who can establish that his medical providers acted with a mindset “akin to recklessness in the criminal law,” has historically had a civil remedy against his medical providers. For a state prisoner, that remedy was provided through 42 U.S.C. § 1983. “Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). Thus, a state prison official-or any individual acting under color of state law-may be sued for violating another individual's constitutional rights. By its terms, however, Section 1983 only applies to individuals acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” 42 U.S.C. § 1983. Thus, federal officials are not covered by Section 1983.
So, without an explicit statutory remedy applicable to federal officials, are individuals acting pursuant to federal law free to violate others' constitutional rights without recourse? Historically, no. As the United States Supreme Court has explained, “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 despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). Indeed, “[i]n the early years of Bivens, the [Supreme] Court essentially presumed new Bivens actions were valid ‘unless the action [wa]s “defeated” in one of two specified ways'-an express declaration from Congress creating a substitute remedy or the existence of ‘special factors' that counselled ‘hesitation.'” Silva v. United States, 45 F.4th 1134, 1139 (10th Cir. 2022) (quoting Carlson, 446 U.S. at 26-27, (Powell, J., concurring in the judgment)).
Following this formulation, the Supreme Court expanded the remedy recognized in Bivens to a gender discrimination claim under the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and, most relevant here, to a claim of deliberate indifference under the Eighth Amendment arising out of inadequate medical treatment to a prisoner, Carlson, 446 U.S. 14.
Despite this precedent-despite the fact that the Supreme Court held more than forty years ago in Carlson that a prisoner who can establish that his medical providers acted with a mindset akin to recklessness in the criminal law could seek a civil remedy against those medical providers-the United States argues that such a remedy no longer exists. [See generally #140-1] Reluctantly, this Court, bound by the decisions of the Supreme Court, agrees.
The Supreme Court's early amicability towards Bivens actions was short-lived. The Supreme Court has since “adopted a far more cautious course” with respect to Bivens actions. Ziglar v. Abbasi, 137 S.Ct. 1843, 1855 (2017). Thus, Bivens, Davis, and Carlson “represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution itself.” Id.
As solidified in Ziglar, 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” Bivens, Davis, or Carlson. 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. Applying this two-step regime, courts have arrived at inconsistent outcomes in considering whether a Bivens remedy is available for an Eighth Amendment claim of deliberate indifference towards a prisoner's dental care. Compare Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018) (holding that “an implied right of action [existed] against a federal actor who shows deliberate indifference to a prisoner's serious medical needs in violation of the Eighth Amendment” in a case involving inadequate dental care); with Sharp v. United States Marshals Serv., No. 5:20-CT-03282, 2022 WL 3573860, at *7 (E.D. N.C. July 15, 2022) (finding that a Bivens remedy was not available when the plaintiff's “alleged injuries-dental pain, infected and bleeding gums, and a tooth breaking into pieces-are vastly different from those in Carlson”); Dissler v. Zook, No. 3:20-CV-00942, 2021 WL 2598689, at *4-5 (N.D. Tex. May 7, 2021) (finding that the plaintiff's “deliberate indifference claim for inadequate dental treatment ar[ose] in a new context” in part because the plaintiff alleged “far less serious injuries” than those alleged in Carlson, and that “the administration of the federal prison system qualifie[d] as a special factor” that prevented the court from allowing a Bivens action), report and recommendation adopted, No. 3:20-CV-0942-D, 2021 WL 2589706 (N.D. Tex. June 23, 2021). Thus, were Ziglar the last Supreme Court opinion to address Bivens expansion, this Court would be presented with a close case as to whether a Bivens remedy is available to Plaintiff for his allegedly deficient dental care.
Just this year, however, the Supreme Court once again tightened the vice around Bivens. In Egbert v. Boule, 142 S.Ct. 1793 (2022), the Court made its strongest pronouncement yet against Bivens. The Court emphasized that “recognizing a cause of action under Bivens is ‘a disfavored judicial activity,'” and that “‘[e]ven a single sound reason to defer to Congress' is enough to require a court to refrain from creating such a remedy.” Egbert, 142 S.Ct. at 1803 (first quoting Ziglar, 137 S.Ct. at 1856-57 then quoting Nestle USA, Inc. v. Doe, 141 S.Ct. 1931, 1937 (2021) (plurality opinion)). The Court explained its two-step approach that “inform[s] a court's analysis of a proposed Bivens claim”-i.e., whether the case arises in a new context and whether special factors counsel against recognizing a Bivens remedy-but clarified that “those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. at 1803. Put differently, “[a] court faces only one question [in conducting a Bivens inquiry]: whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Id. at 1805 (quoting Ziglar, 137 S.Ct. at 1858).
And, as the Court explained, there is essentially always at least one rational reason to defer to Congress to create a remedy, namely that: “At bottom, creating a cause of action is a legislative endeavor . . . [and] Congress is far more competent than the Judiciary to weigh [the] policy considerations [involved with creating a cause of action]. And the Judiciary's authority to do so at all is, at best, uncertain.” Egbert, 142 S.Ct. at 1802 (quotations and citations omitted).
The Egbert Court further explained that a court must determine whether there is “an alternative remedial structure” available. Id. at 1804 (quoting Ziglar, 137 S.Ct. at 1858). A court must conduct such an inquiry because “a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure'”-regardless of the extent of relief provided to the plaintiff by that remedial scheme. Id. (quoting Ziglar, 137 S.Ct. at 1858). Simply put, “[s]o 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.” Id. at 1807.
As explained below, the Tenth Circuit has described these two questions-whether Congress is better positioned to create remedies and whether the Government has already provided remedies-as “two independent reasons” to deny a Bivens remedy. Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022). This Court is not entirely convinced that the two questions are completely independent. One possible reading of Egbert is that the fact that the Government created alternative remedies necessarily means that Congress is better positioned to create remedies. Egbert, 142 S.Ct. at 1803 (“While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” (emphasis added)); id. at 1804 (“If there are any alternative remedial structures in place, that alone, like any special factor, is reason enough to limit the power of the Judiciary to infer a new Bivens cause of action.” (quotation omitted)). Ultimately, however, this is a distinction without a difference-postEgbert, a “yes” answer to either question necessarily disposes of the Bivens claim.
Applying these general principles, the Egbert Court unsurprisingly held that a Bivens remedy was not available to Plaintiff Boule against federal officials for an alleged violation of the Fourth Amendment. The Court accepted the Court of Appeals' concession that Plaintiff Boule's Fourth Amendment Claim presented a new context, and held that no Bivens remedy could exist under this context because: (1) national security was at issue, distinguishing the case from the facts of Bivens and making the case particularly ill-suited for judicial intervention, id. at 1804-06, and, independently; (2) “Congress ha[d] provided alternative remedies for aggrieved parties in [Plaintiff] Boule's position that independently foreclose a Bivens action here,” id. at 1806-07. This was true even though the “set of facts [presented did not] differ[] meaningfully from those in Bivens itself.” Id. at 1810 (Gorsuch, J., concurring); see also id. at 1805 (recognizing that “Bivens and this case . . . arguably present ‘almost parallel circumstances'” (quoting Ziglar, 137 S.Ct. at 1859)); id. at 1815 (Sotomayor, J., concurring in part and dissenting in part) (“At bottom, [Plaintiff] Boule's claim is materially indistinguishable from the claim brought in Bivens.”).
In providing guidance on how courts in this Circuit are to apply Egbert, the Tenth Circuit has explained that expanding Bivens “is an action that is impermissible in virtually all circumstances.” Silva, 45 F.4th at 1140; see also id. at 1140-41 (noting the similarity between the facts in Egbert and those in Bivens, and questioning whether any circumstances could exist where there would be no reason to think that Congress was better equipped than the courts to create a cause of action). The Tenth Circuit stated that “the Supreme Court appeared to alter the existing two-step Bivens framework” and “emphasize[d] what [it] view[ed] as the key takeaway from Egbert, namely, that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs.'” Id. at 1139, 1141 (quoting Egbert, 142 S.Ct. at 1804) (emphasis in original). The Tenth Circuit then held that the existence of the BOP Administrative Remedy Program constituted an adequate alternative remedy that foreclosed the plaintiff's Bivens claim against a BOP corrections officer. Id. at 1141. The Tenth Circuit declined to address whether there was any reason to think that Congress might be better equipped to create a damages remedy with respect to the plaintiff's claim. Id. at 1141 n.5.
Under this precedent, this Court finds that a Bivens remedy is not available to Plaintiff. Pursuant to Egbert and Silva, the existence of an alternative remedial scheme available to Plaintiff bars Plaintiff's Bivens claim. The Court acknowledges that Plaintiff's claim presents somewhat “parallel circumstances” and a “similar mechanism of injury” as that presented in Carlson-an Eighth Amendment claim for deliberate indifference to a prisoner's medical needs. But, under Egbert, factual similarity to previous cases no longer appears sufficient to permit a Bivens claim to proceed. According to the Court in
Some courts across the country have disagreed, and have interpreted Egbert as merely restating the two-step test-concluding that if a claim does not arise in a “new [factual] context” but is sufficiently similar to claims that the Supreme Court or governing Circuit caselaw had allowed in the past, then the analysis ends there and the Bivens claim may proceed even after Egbert. See, e.g., Kennedy v. Massachusetts, No. CV 22-11152-NMG, 2022 WL 17343849, at *4 (D. Mass. Nov. 30, 2022); (“[B]ecause this Court is not fashioning a new Bivens context, the Court need not consider alternative remedial structures.”); Ibuado v. Fed. Prison Atwater, No. 1:22-cv-00651-BAM(PC), 2022 WL 16811880, at *4 (E.D. Cal. Nov. 8, 2022) (“Plaintiff's medical claim does not present a new Bivens context. In Carlson v. Green, the Supreme Court found that there was an available Bivens remedy for a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment. The Court will therefore consider whether Plaintiff states a cognizable claim[] [u]nder the Eighth Amendment.” (citations omitted)). Bound as it is to Supreme Court and Tenth Circuit precedent, this Court is unpersuaded that Egbert and Silva permit this method of analysis.
Egbert, “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances' with Bivens, Passman, or Carlson unless he also satisfies the ‘analytic framework' prescribed by the last four decades of intervening case law.” 142 S.Ct. at 1809; see also Silva, 45 F.4th at 1140 (“The Supreme Court's rejection of the plaintiff's Fourth Amendment claim, despite its close resemblance to the facts of Bivens itself, underscores the extent of the Court's disfavor towards Bivens claims.”); Washington v. Fed. Bureau of Prisons, No. CV 5:16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022) (“[Under Egbert], a court should conduct a special factors analysis even when the plaintiff's allegations closely resemble Carlson because that case ‘predates [the Court's] current approach to implied causes of action.'” (quoting Egbert, 142 S.Ct. at 1808)). This required “analytical framework” includes asking whether an “alternative remedial structure” exists. Egbert, 142 S.Ct. at 1804. As explained by the Tenth Circuit, the apparent collapsing of the two steps in the Bivens inquiry means that under Egbert's framework, courts should “dispose of Bivens claims for ‘two independent reasons: [(1)] Congress is better positioned to create remedies in the [context considered by the court], and [(2)] the Government already has provided alternative remedies that protect plaintiffs.'” 45 F.4th at 1141 (quoting Egbert, 142 S.Ct. at 1804) (emphasis in original). This second reason asks only if an alternative remedial structure exists. If so, then that alone provides an “independent means of disposing of Bivens claims,” regardless of their context. Id.
As the Tenth Circuit made clear in Silva, the availability of the BOP's Administrative Remedy Program provided “sufficient ground to foreclose [the plaintiff's] Bivens claim.” Id. Because this same administrative remedy program was available to Plaintiff regarding his allegedly inadequate dental care, this Court finds that the existence of this program forecloses the availability of a Bivens remedy against BOP officials in Plaintiff's case, despite any “parallel circumstances” that may exist between it and Carlson.
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).
Accordingly, the Court RECOMMENDS that Plaintiff's claims against Dr. Burkley, Ms. Schouweiler, and Ms. Dunn be DISMISSED WITH PREJUDICE due to the lack of a Bivens remedy. The Court issues this Recommendation fully aware of the implications of the Recommendation's rationale. Under the rationale of this Recommendation, a federal prison official may sadistically beat an inmate to within an inch of his life and that inmate will not have a civil remedy against that prison official-after all, the inmate may file a grievance pursuant to the BOP Administrative Remedy Program.But the Court is bound by Egbert and, in this Court's view, Egbert compels this conclusion.
Dismissal with prejudice is proper under these circumstances, as further amendment to the Complaint would be futile. See Silva, 45 F.4th at 1142 (“In sum, Plaintiff's Bivens claim is foreclosed by the availability of the BOP Administrative Remedy Program to address his complaint. For the foregoing reasons, we AFFIRM the district court's dismissal of Plaintiff's complaint WITH PREJUDICE.”).
To state the obvious, were a state prison official to do the same thing, that state prison official would be subject to civil liability pursuant to Section 1983. See Smith v. Trujillo, 2021 WL 1608829, at *2 (D. Colo. April 26, 2021) (declaring in a preEgbert decision that extended a Bivens remedy to an excessive force claim brought by a federal inmate that “[i]t would be anomalous that a state prisoner could pursue an excessive force claim against a correctional officer, but a federal prisoner could not”).
C. PLAINTIFF'S CLAIMS AGAINST THE BOP
Plaintiff next appears to assert claims against the BOP for injunctive relief under the Eighth Amendment. [#94 at 19, 22] Liberally construed, Plaintiff seeks to enjoin the BOP's alleged “no crowns” policy. Defendants concede that a federal prisoner may sue the BOP for injunctive relief under the Eighth Amendment. [#114 at 12]; see also Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1239 & n.11 (10th Cir. 2005). But Defendants argue that Plaintiff has inadequately pled the existence of a “no crowns” policy, and that such a policy does not violate the Eighth Amendment.
In one sentence under a claim titled “Eighth Amendment (deli[berate] indiff[erence]),” Plaintiff states that the BOP “violate[d] the administrative procedures act because by writ[t]en policy crowns are allowed.” [#94 at 19] This single sentence, nested within an Eighth Amendment claim, fails to state a claim under the APA. For example, Plaintiff makes no allegations “that the [written policy] at issue,” which Plaintiff fails to even identify, “was adopted under APA procedures,” making dismissal appropriate. See Hill v. Pugh, 75 Fed.Appx. 715, 720 (10th Cir. 2003). Moreover, to the extent that Plaintiff is referencing a BOP program statement, such statements are “internal agency guidelines that are not subject to the rigors of the [APA].” Id. (quotation omitted).
To begin, the Court finds that Plaintiff has adequately alleged that a “no crowns” policy has been applied to his case. The existence or nonexistence of a policy is a question of fact for the jury, but it must be pled with specific factual allegations as opposed to bald conclusory assertions. Griego v. City of Albuquerque, 100 F.Supp.3d 1192, 1212-13 (D.N.M. 2015); Atwell v. Gabow, No. CIVA 06CV-02262-JLK, 2008 WL 906105, at *6 (D. Colo. Mar. 31, 2008), aff'd, 311 Fed.Appx. 122 (10th Cir. 2009). Plaintiff concedes to the existence of a written BOP policy that allows for crowns under certain circumstances, but he alleges the existence of an informal policy against the use of crowns. [#121 at 9] As a district court in this Circuit has explained:
With informal, unwritten policies, customs, or practices, the plaintiff can plead either a pattern of multiple similar instances of misconduct-no set number is required, and the more unique the misconduct is, and the more similar the incidents are to one another, the smaller the required number will be to render the alleged policy plausible-or use other evidence, such as a police officers' statements attesting to the policy's existence.Griego, 100 F.Supp.3d at 1213. Here, Plaintiff alleges both a pattern of misconduct (albeit, one limited to himself through the refusal to provide crowns on his three teeth) and Dr. Burkley's statements directly attesting to the existence of a “no crowns” policy that would apply in Plaintiff's case. [See generally #94] Together, the Court finds that Plaintiff has adequately alleged that an informal “no crowns” policy has been applied to Plaintiff's Affected Teeth.
The Court finds, however, that the alleged “no crowns” policy, as applied in Plaintiff's case as currently alleged, did not violate Plaintiff's Eighth Amendments rights. Courts have recognized that offering extraction as the “only dental care” available at a facility generally violates the Eighth Amendment. See Heitman v. Gabriel, 524 F.Supp. 622, 627 (W.D.Mo.1981) (“While it is by no means unprecedented for an old-fashioned prison regime to offer tooth extraction as the only dental care, no case has been found where such a limitation has been deemed judicially tolerable.”); c.f. Baughman v. Garcia, 254 F.Supp.3d 848, 876 (S.D. Tex. 2017) (holding that a policy denying standard fillings if the inmate could not afford them, and instead only offering extractions, could give rise to an Eighth Amendment violation), aff'd sub nom., Baughman v. Seale, 761 Fed.Appx. 371 (5th Cir. 2019). But beyond that “extreme case,” “[t]he majority of courts examining this issue have found that a prison's refusal to restore a tooth rather than extract it is not an Eighth Amendment violation if extraction is a medically appropriate treatment for the prisoner.” Bargo v. Kelley, No. 17-cv-00281-KGB-PSH, 2020 WL 1172206, at *8 (E.D. Ark. Jan. 23, 2020) (emphasis omitted), report and recommendation adopted, 2020 WL 1165761 (E.D. Ark. Mar. 10, 2020); see also Greywind v. Podrebarac, No. 1:10-CV-006, 2011 WL 4750962, at *7 (D.N.D. Sept. 12, 2011) (“[A] number of courts have held that prison policies that offer extraction in lieu of such things as crowns, implants, and even root canals in certain situations do not violate the Eighth Amendment.” (collecting cases)), report and recommendation adopted, 2011 WL 4743751 (D.N.D. Oct. 5, 2011), aff'd, 471 Fed.Appx. 544 (8th Cir. 2012)). In James v. Penn. Dept. of Corr., for example, the Third Circuit held that there was no Eighth Amendment violation when a tooth was extracted despite the fact that a root canal, which was not permitted by the facility's policy, would have saved it. 230 Fed.Appx. 195, 196-98 (3d Cir. 2007). Similarly, in Koon v. Udah, a district court found no Eighth Amendment violation when a facility declined to provide a root canal and crown at state expense on a tooth with “a minor infection or abscess,” and instead only offered extraction of the tooth. No. 8:06-2000, 2008 WL 724041, at *7 (D.S.C. Mar. 17, 2008). Most like this case, in Del Muro v. Federal Bureau of Prisons, the plaintiff alleged that the facility only provided fillings and extractions. No. 5:03-CV-214-B, 2004 WL 1542216, at *3 (N.D. Tex. July 8, 2004). The plaintiff had three teeth filled, but the fillings fell out because of the extent of tooth decay. Id. The plaintiff was offered an extraction, but refused, contending that the denial of crowns or a bridge constituted an Eighth Amendment violation. Id. The district court held that the plaintiff's preference for crowns or a bridge as opposed to fillings and eventual extraction merely constituted an unactionable disagreement with the course of treatment. Id. at *3-4.
The Court acknowledges some caselaw to the contrary. Most significantly, in Carlucci v. Chapa, the Fifth Circuit held that an Eighth Amendment violation could exist when a facility dentist recommended providing a bridge as “the only way to stop” further damage to the plaintiff's teeth, but declined to provide the treatment because the BOP “would never authorize” it. 884 F.3d at 537, 539. The Fifth Circuit explained that the plaintiff's “allegation is that the dentist recommended restoring his bridge and repairing the fractured teeth. [The plaintiff] did not claim that the dentist recommended pulling the teeth and [the plaintiff] disagreed.” Id. at 539. According to the Fifth Circuit, this allegation sufficed to state a claim because the plaintiff “suffered permanent physical injury” due to the denial of the “recommended treatment by medical professionals.” Id. (citing Thompson v. Williams, 56 F.3d 1385, 1385 (5th Cir. 1995) (unpublished) and Huffman v. Linthicum, 265 Fed.Appx. 162, 163 (5th Cir. 2008)). In Carlucci, however, there was no evidence that the plaintiff was offered any type of dental care for over a year after his teeth began to crack. The plaintiff was simply “assured [that he] would receive care,” but after a year had only received a bite-guard. Id. at 536-37.
Here, Plaintiff alleges that he has been denied crowns on Teeth #1, #2, and #3.He does not allege the “extreme case” where the only dental care offered was extraction. Indeed, with respect to Tooth #3, Dr. Burkley treated that tooth with three fillings and a pin. [#94 at 8-11] Though Plaintiff alleges that Dr. Burkley told Plaintiff that Plaintiff needed a crown on Tooth #3, Plaintiff does not allege that Dr. Burkley thought the alternative treatment of fillings and a pin would be ineffective at relieving Plaintiff's pain. [Id.] Ultimately, Tooth #3 was extracted. [Id. at 26] At the time of the extraction, Tooth #3 was rotten and broken in half [id. at 26] and Plaintiff does not allege that, by that point, it was not medically appropriate to extract Tooth #3. The Court thus does not find the “no crown” policy as applied to Tooth #3 constituted a constitutional violation.
Plaintiff does not allege that Crowns were ever recommended, requested, or denied for Teeth #4 and #5.
In any event, Plaintiff's claim for injunctive relief as to Tooth #3 is likely moot because that tooth has been extracted. See Greywind, 2011 WL 4750962 at *9.
With respect to Teeth #1 and #2, Plaintiff alleges that they were “all filling from previous dental work,” but that they caused him pain when drinking hot or cold beverages and when eating hard foods. [Id. at 6-7] He alleges that Dr. Burkley informed Plaintiff that these teeth “need[ed] crowns,” but refused to provide those crowns on three occasions. [Id. at 7-9, 13] But it is unclear whether Plaintiff and Dr. Burkley had any further discussions about Teeth #1 and #2 or whether Dr. Burkley believed that other treatment would eliminate Plaintiff's pain. Indeed, in some instances, Plaintiff alleges that he only requested care for Teeth #3, #4, and #5, or refers simply to “requests” without specifying which teeth Plaintiff requested treatment for. [Id. at 10-12] Given the limited allegations with respect to Teeth #1 and #2-including a lack of any allegations that Dr. Burkley denied any dental care on these teeth besides the requested crowns-the Court cannot conclude that the “no crown” policy as applied to Teeth #1 and #2 constituted a constitutional violation.
Similarly, Teeth #1 and #2 are barely mentioned in Plaintiff's Affidavit. [See id. at 24-28]
Ultimately, Plaintiff has thus failed to allege that the application of BOP's alleged “no crowns” policy has resulted in a violation of Plaintiff's Eighth Amendment rights, nor has Plaintiff adequately alleged that it will do so in the future. Such a policy, globally and indiscriminately applied, may be constitutionally impermissible under a certain set of circumstances. But those circumstances are not before the Court in this case. Accordingly, the Court RECOMMENDS Plaintiff's claims against BOP by DISMISSED WITHOUT PREJUDICE.
The Court's conclusion in this Section is limited. Plaintiff's claim for injunctive relief against the BOP appears to be limited to the “no crowns” policy. [#94 at 19] Plaintiff has also alleged that the BOP has a policy of “one procedure, per inmate, per visit,” that it can take up to three months between visits, and that this delay caused Plaintiff substantial pain. [Id. at 8] Indeed, as a result of this “one procedure, per inmate, per visit” policy, it took Plaintiff roughly one year to get a standard filling in one broken tooth, and roughly a year and five months to get a standard filling in another. [See id. at 13, 15] Plaintiff does not appear to challenge this “one procedure” policy in his injunctive relief claim against the BOP, however, and thus the Court need not opine on whether such a policy could support a deliberate indifference claim for injunctive relief. Similarly, through the Court's conclusion in this Section, the Court does not imply that Plaintiff has failed to plausibly plead a deliberate indifference claim against any of the Individual Defendants based upon their alleged delay in providing Plaintiff with treatment. Rather, as explained in Section III.B above, in light of Egbert, there is simply no remedy against the Individual Defendants for such a claim.
For example, the Court could envision a scenario where an inmate's teeth problems were causing substantial pain, a doctor refused to extract the teeth because extraction was not medically appropriate, standard fillings or other routine dental procedures were not medically appropriate for the teeth, and the doctor refused to (or was prohibited from) placing a recommended crown on the teeth. Under such a scenario, the Court could envision a valid deliberate indifference claim premised upon the no crown policy. As outlined above, however, Plaintiff has failed to allege such a scenario here. Nonetheless, recognizing Plaintiff's pro se status, and the Court's uncertainty as to the treatment for Teeth #1 and #2, the Court is recommending dismissal without prejudice with leave to amend this claim. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
D. FTCA CLAIM
Finally, Plaintiff brings an FTCA claim against the United States for medical negligence/medical malpractice based on Dr. Burkley's failure to provide Plaintiff with the requested crowns. [#94 at 16-18] Defendant United States filed a partial 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. [#144]
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 Fed.Appx. 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 Fed.Appx. at 213; see also Coleman v. United States, No. 18-CV-01965-KMT, 2020 WL 6151005, at *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).
The Court agrees that a certificate of review is necessary in this case. Plaintiff's FTCA claim revolves around Dr. Burkley's refusal to provide crowns for Teeth #1, #2, and #3. [#94 at 16-18] According to Plaintiff, Dr. Burkley's multiple attempts to “fix” Tooth #3 and his decision to leave the fillings in Teeth #1 and #2 in place constituted medical negligence or medical malpractice. [Id.] Plaintiff alleges that Dr. Burkley's decision was made solely “to save the prison money,” constituted a “breach[] [of] his legal duty of care,” and “f[ell] below the degree of care[,] knowledge[,] and skill used by other physicians practicing the same skill or specialty, as anyone else would have done the required crown.” [Id.] Whether the decision to rely on fillings instead of crowns to treat Teeth #1, #2, and #3 fell below the degree of care used by other dentists does not “lie[] within the ambit of common knowledge or experience of ordinary persons.” Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo.App. 1995). This is especially true of Plaintiff's claim as it relates to Tooth #3-the only tooth for which Plaintiff exhausted his administrative remedies-as that tooth received extensive treatment from Dr. Burkley. Indeed, Plaintiff has long conceded the necessity of a certificate of review in this case. [#28 at 2-3] (“There is part of [“Plaintiff's] medical negligence claim that will require an expert[']s testimony.... It will take an expert to prove that [Dr. Burkley's] procedure on [Tooth #3] falls below the degree of knowledge, skill, and care used by other physicians.”). And the Court has previously noted that ‘[s]hould Plaintiff not obtain the required certificate of review, his claims are subject to dismissal.” [#59 at 2-3 (emphases added)]
Before filing an FTCA claim, a plaintiff must have “first presented the claim to the appropriate Federal agency and his claim [must] have been finally denied by the agency.” 28 U.S.C. § 2675(a). This provision “require[s] notice of facts and circumstances underlying [the plaintiff's] claim.” Est. of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 853 (10th Cir. 2005). “Because the FTCA constitutes a waiver of the government's sovereign immunity, the notice requirements established by the FTCA must be strictly construed.” Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992) (citing Three-M Enters., Inc. v. United States, 548 F.2d 293, 295 (10th Cir.1977)). “The requirements are jurisdictional and cannot be waived.” Id. (citing Three-M Enters., Inc., 548 F.2d at 294). In the Complaint, Plaintiff acknowledges the exhaustion requirement and alleges that it was fulfilled “by [Plaintiff's] filing [of] a form 95 tort claim on Sept[ember] 14th case number TRT-NCR-2020-07199.” [#94 at 16] Plaintiff further alleges that “[t]he defendant denied [Plaintiff's] claim in writing,” and the Complaint includes as an exhibit the denial of his claim. [Id. at 16, 30] The Court may consider the tort claim itself because it is a document that Plaintiff “referred to in the complaint” that is “central to [Plaintiff's] claim.” Latham v. Five Bros. Mortg. Co. Servs. & Securing, Inc., 669 Fed.Appx. 513, 514 (10th Cir. 2016). This tort claim only complains of Tooth #3. The “Basis of Claim” section reads, in full:
I had a broken tooth for months that dental refused to fix. They said the tooth needed crowns put on but they couldn't provide crowns because under BOP policy crowns are not allowed and the dentist cannot do them in the BOP. I lost my tooth over this policy.[#114-3 at 2 (emphases added)] Similarly, when instructed to “state the nature and extent of each injury . . . which forms the basis of the claim,” the claim reads, in full:
I suffered in pain for months over this broken tooth and ended up losing it when all I needed was a crown to fix it.[Id. (emphases added)] The tort claim repeatedly and exclusively references only a single tooth. Tooth #3 is the only one that Plaintiff alleges he “lost.” [#94 at 15] Plaintiff has therefore failed to exhaust his administrative remedies as to his remaining Affected Teeth, and the Court lacks jurisdiction over Plaintiff's FTCA claim, except as it relates to Tooth #3.
Plaintiff's deadline to file his required certificate of review in this case has been extended three times, extending his initial deadline of December 29, 2021 by nearly nine months to September 26, 2022. [## 59, 86, 117] In granting the last extension, the Court warned that “NO FURTHER EXTENSIONS WILL BE GRANTED.” [#117; see also #141 (denying another request for extension pursuant to this warning)]. Thus, the operative and final deadline for Plaintiff to file his required certificate of review was September 26, 2022. Because no such certificate of review was filed, the Court RECOMMENDS that Plaintiff's FTCA claim be DISMISSED WITHOUT PREJUDICE.
When a plaintiff fails to file a required certificate of review, dismissal without prejudice under Federal Rule of Civil Procedure 41(b) is appropriate. Coleman v. United States, No. 20-1403, 2021 WL 2835473, at *3 (10th Cir. July 8, 2021).
IV. PLAINTIFF'S EMERGENCY MOTION
Finally, the Court considers Plaintiff's Emergency Motion. [#160] The Emergency Motion represents that one of Plaintiff's Affected Teeth “exploded in his mouth.” [Id. at 2 (emphasis omitted)] Plaintiff requests an order that “the crowns . . . be put on [Plaintiff's] teeth.” [Id.] The Court CONTRUES this Emergency Motion as a request for a preliminary injunction.
Plaintiff has previously requested this same relief from the Court though an earlier-filed Motion for Preliminary Injunction and/or Protective Order. [#30] The Court recommended that this motion be denied, explaining that it requested a disfavored preliminary injunction and that Plaintiff had failed to meet his burden on any of the Preliminary Injunction factors. [See generally #99] This Recommendation was affirmed and adopted by the District Court. [#112] The Emergency Motion before the Court presents no new circumstances or arguments that would alter this Court's previous analysis. Plaintiff asserts that one of his teeth has “exploded,” but fails to support this allegation with any evidence or analysis as to how this alters any of the factors. [#160 at 2]; see Lane v. Buckley, 643 Fed.Appx. 686, 689 (10th Cir. 2016) (“[A] district court should be wary of issuing an injunction based solely upon allegations and conclusory affidavits submitted by plaintiff.” (citation omitted)). Moreover, the Court's further analysis of the Complaint's merits cuts strongly against granting the Emergency Motion-even more than when the Court considered Plaintiff's original request for a preliminary injunction. [See #99 at 11 n.6] As discussed above, the Court recommends dismissing the Complaint in its entirety. The Emergency Motion, with a single unsupported and vague allegation of further tooth damage, does nothing to alter that recommendation. Accordingly, the Court RECOMMENDS that the Emergency Motion be DENIED.
V. CONCLUSION
For the reasons set forth above, the Court RECOMMENDS that the Motions to Dismiss be GRANTED, that the Complaint be DISMISSED, and that the Emergency Motion be DENIED. More specifically, the Court RECOMMENDS that:
1. Plaintiff's claim against Ms. Fellows be DISMISSED WITHOUT PREJUDICE; 2. Plaintiff's claim against Dr. Burkley, Ms. Schouweiler, and Ms. Dunn be DISMISSED WITH PREJUDICE; 3. Plaintiff's claim against the BOP be DISMISSED WITHOUT PREJUDICE; 4. Plaintiff's claim against the United States be DISMISSED WITHOUT PREJUDICE; 5. Plaintiff's Emergency Motion be DENIED; and 31 6. If the Recommendation is Adopted, Plaintiff be given 14 days to file an Amended Complaint limited to claims for injunctive relief against the BOP.