Opinion
Civil Action 20-cv-00877-RBJ-NYW
03-26-2021
JOSEPH SMITH, Plaintiff, v. A. TRUJILLO, Lt., GONZALEZ, S.I.S. Tech., UNIDENTIFIED CORRECTIONAL OFFICERS, PELTON, Doctor, and UNITED STATES OF AMERICA, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
NINA Y. WANG MAGISTRATE JUDGE
This matter comes before this court on Defendants Trujillo, Gonzales, Pelton, (the “Individual Defendants”), and the United State of America's (“United States” and collectively with Individual Defendants, “Defendants”) Motion for Dismissal in Part (or “Motion”), filed October 23, 2020. [#49]. The presiding judge, the Honorable R. Brooke Jackson, referred this Motion to the undersigned pursuant to 28 U.S.C. § 636(b) and the Memorandum dated October 26, 2020, [#50], and this court concludes that neither oral argument nor additional briefing will materially assist in the resolution of this matter. For the following reasons, I respectfully RECOMMEND that the Motion for Dismissal in Part be GRANTED IN PART and DENIED IN PART.
Following several lengthy extensions of time, Plaintiff Joseph Smith filed his Response to the Motion for Dismissal in Part on March 16, 2021. [#80]. Having reviewed the Parties' briefing, the undersigned concludes it is appropriate to issue a Recommendation on the Motion for Dismissal in Part without any further briefing. See D.C.COLO.LCivR 7.1(d) (permitting the court to rule on a motion at any time).
BACKGROUND
This court draws the following facts from the Second Amended Complaint [#21] and presumes they are true for purposes of the instant Motion. Plaintiff Joseph Smith (“Plaintiff” or “Mr. Smith”), while incarcerated at the Federal Correctional Institution Florence (“FCI”) within the Federal Bureau of Prisons (“BOP”), learned of “a perceived physical threat to [his] safety posed by other inmates” on or about May 19, 2019. [#21 at 7-9]. Mr. Smith informed FCI personnel who alerted Defendant Trujillo of the threat and placed Mr. Smith in a secured cell. See [id.]. Not soon after, Defendants Trujillo and Gonzalez and an unidentified FCI officer arrived at Mr. Smith's cell, with Defendant Trujillo handcuffing Mr. Smith's hands behind his back, slamming Mr. Smith to the ground, and then placing pressure on Mr. Smith's face and head hard enough to slam Mr. Smith's head into the floor. [Id.]. Mr. Smith alleges the unidentified FCI officer similarly assaulted him. [Id.]. Mr. Smith was then placed in leg restraints and escorted to the Special Housing Unit (“SHU”). [Id.].
While escorted to the SHU, Mr. Smith alleges his “head was forced downward towards the ground causing [him] to bend at ¶ 45 degree angle while [his] arms were forced upward behind [his] back beyond their normal range of motion causing extreme pain.” [Id.]. In addition, Mr. Smith alleges he was “pulled backwards by [his] hand restraints and pushed backwards by [his] head, ” which contributed to his sustained injuries. [Id.]. Mr. Smith continues that Defendant Trujillo interrogated Mr. Smith about the alleged threat and threatened Mr. Smith with an assault incident report if Mr. Smith did not answer Defendant Trujillo's questions. See [id.]. Once at the SHU, Mr. Smith alleges that an unidentified FCI officer pushed Mr. Smith's head into a brick wall four times, placed Mr. Smith in exceedingly tight ambulatory restraints, and exclaimed that “this should break you!” [Id.].
At some point, Mr. Smith underwent a medical assessment, but Mr. Smith alleges Defendants “intimated [him] . . . to the point of being unable to relay [his] injuries to the [registered nurse] . . . for fear of further physical abuses.” [Id. at 10]. Several days later, Mr. Smith submitted a written “sick-call” detailing his injuries and pain. See [id.]. Plaintiff saw several medical providers for his pain and injuries, with each prescribing rest and other conservative treatments that did not alleviate Plaintiff's pain, and although he received an X-ray, Plaintiff alleges Defendant Dr. Pelton (“Dr. Pelton”) cancelled Mr. Smith's MRI appointment. See [id. at 10-15]. Plaintiff further avers that Dr. Pelton did so only after Plaintiff filed a grievance with the BOP regarding his inadequate medical care, though Mr. Smith has since received an MRI. [Id. at 12, 15]. Despite his injuries, Mr. Smith claims he has received “no treatment, no pain medication, no bottom-bunk pass to prevent [him] from having to climb onto a top bunk-bed, no ‘front-cuff' pass . . ., nothing.” [Id. at 16].
Believing Defendants violated his constitutional and related federal rights, Mr. Smith initiated this action by filing his pro se prisoner Complaint on March 30, 2020. [#1]. Following orders from the Honorable Gordon P. Gallagher, Plaintiff filed an Amended Prisoner Complaint on April 29, 2020 and a Second Amended Prisoner Complaint on May 26, 2020. See [#5; #12; #14; #15; #21]. The Second Amended Complaint alleged a host of constitutional claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396-97 (1971) as well as a Federal Torts Claim Act (“FTCA”) claim against the United States. See generally [#21]. On June 3, 2020, Magistrate Judge Gallagher recommended that the court dismiss Plaintiff's purported Bivens claims against several individual defendants but draw Plaintiff's (1) Eighth Amendment excessive force claim against Defendants Trujillo, Gonzales, and an unidentified FCI officer (“Claim 1”), (2) Eighth Amendment deliberate indifference claim against Dr. Pelton (“Claim 2”), and (3) FTCA claim against the United States (“Claim 3”) to a presiding judge. [#25]. The Honorable Lewis T. Babcock adopted the Recommendation and drew Plaintiff's three remaining claims to the undersigned, [#28], but upon the Parties nonconsent, the Clerk of the Court redrew this matter to Judge Jackson who has since referred certain pretrial matters back to the undersigned, see [#47; #48].
It is unclear under which theories Mr. Smith's FTCA claim arises. Based on this court's liberal interpretation of the Second Amended Complaint, it appears Mr. Smith's FTCA claim encompasses the allegations underlying both the alleged excessive force and the alleged deliberate indifference to his medical needs. See generally [#21]. Thus, I construe Mr. Smith's FTCA claim as asserting a claim for assault and battery and medical negligence, but because Defendants do not challenge Mr. Smith's assault and battery claim under the FTCA, I focus my analysis only on the purported medical negligence claim.
On October 23, 2020, Defendants filed the instant Motion. See [#49]. Upon referral from Judge Jackson, the undersigned set a response deadline as December 4, 2020. See [#51]. Plaintiff, however, alerted the court that he had recently transferred to another correctional facility, had yet to receive a copy of the Motion, and needed more time to respond due to COVID-19 restrictions, see [#54], and so this court extended Mr. Smith's response deadline to January 18, 2021, see [#57]. Then, on December 22, 2020, this court further extended Plaintiff's response deadline to January 29, 2021, given Plaintiff's representations that he remains under COVID-19 lockdowns. See [#62]. This court provided one last extension to March 19, 2021 for Mr. Smith to respond to the Motion. See [#70]. Plaintiff filed is Response on March 16, 2021. [#80]. Although the deadline to file a Reply has not expired, this court concludes it is appropriate to consider the Motion presently without additional briefing. See D.C.COLO.LCivR 7.1(d). Accordingly, I consider the Parties' arguments below.
Although Defendants invoke Rule 12(b)(1) of the Federal Rules of Civil Procedure in their Motion for Dismissal in Part, they do so within the context of whether Mr. Smith may assert an Eighth Amendment excessive force claim under Bivens. See [#49 at 8-9]. Whether a Bivens remedy exists for Mr. Smith's Eighth Amendment excessive force claim, however, does not implicate the court's subject matter jurisdiction, and thus I consider the argument under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020) (explaining, “the availability of a Bivens cause of action . . . is not an issue that implicates a court's subject-matter jurisdiction.”).
“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.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the “court accepts as true all well-pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
In applying this legal principle, this court is mindful that Mr. Smith proceeds pro se and is entitled to a liberal construction of his papers. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). But the court cannot and does not act as an advocate for a pro se party. United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Nor does a party's pro se status exempt him from complying with the procedural rules that govern all civil actions filed in this District, namely, the Federal Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
ANALYSIS
I. Claim 1 - Eighth Amendment Excessive Force
Defendants move to dismiss Mr. Smith's Eighth Amendment excessive force claim (Claim 1) because no Bivens remedy exists for such a claim. See [#49 at 4-9]. At the outset, this court notes that several judicial officers in this District have concluded the same. See Silva v. United States, No. 19-CV-02563-CMA-MEH, 2020 WL 7706785, at *5 (D. Colo. Dec. 29, 2020) (concluding Eighth Amendment excessive force claim arose in new context for purposes of Bivens remedy); Abdo v. Balsick, No. 18-CV-01622-KMT, 2019 WL 6726230, at *6 (D. Colo. Dec. 11, 2019) (same); Millbrook v. Spitz, No. 1:18-CV-01962-RM-KMT, 2019 WL 4594275, at *4 (D. Colo. Sept. 23, 2019) (same); see also Bowman v. Sawyer, No. 19-CV-1411-WJM-KMT, 2020 WL 6390992, at *1, **4-5 (D. Colo. Nov. 2, 2020) (declining to extend a Bivens remedy to Eighth Amendment conditions of confinement claim). While it has utmost respect for all the judicial officers within the District who have passed on this issue, this court is not bound by their respective unpublished decisions. See Grynberg v. Kinder Morgan Energy Partners, L.P., 805 F.3d 901, 904 n.1 (10th Cir. 2015) (noting that unpublished district court opinions provide no precedential value, though they may be persuasive). And other unpublished decisions reflect courts permitting Bivens claims to proceed based on alleged Eighth Amendment violations, albeit without passing upon the precise issue before this court. See, e.g., Peraza v. Martinez, No. 14-CV-03056-MJW, 2017 WL 11486454, at *2 (D. Colo. Sept. 14, 2017) (denying summary judgment on plaintiff's Bivens claims arising under the Eighth Amendment for excessive force and failure to protect). For the following reasons, I respectfully disagree with Defendants and recommend otherwise.
A. Applicable Law
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court of the United States established that an individual may seek monetary damages from a federal official in his or her individual capacity for an alleged violation of the Fourth Amendment's prohibition on unreasonable search and seizure, even in the absence of statutory authority. Id. at 396-97. Though not the focus of the opinion, Bivens also included allegations of unreasonable force. See Id. at 389; see also Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001) (interpreting Bivens as holding “that officers may be held liable in damages for violating persons' Fourth Amendment rights, including the use of unreasonable force.”). The Bivens Court rejected the proposition that the Fourth Amendment was not an independent limitation upon the exercise of federal power, observing that “damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition.” Id. at 394, 395. In doing so, the Supreme Court found that the case presented no special factors counseling hesitation in the absence of affirmative action by Congress. Id. at 396.
As jurisprudence developed, it became clear that Bivens was not co-extensive to 42 U.S.C. § 1983, which provides an avenue for a plaintiff to address constitutional violations perpetuated by state actors. The Supreme Court has limited the applicability of Bivens to only a handful of constitutional violations. See, e.g., Bivens, 403 U.S. at 396 (providing a Bivens remedy for violations under the Fourth Amendment); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (providing a Bivens remedy for gender discrimination under the Fifth Amendment Due Process Clause); Carlson v. Green, 446 U.S. 14, 18-21 (1980) (providing a Bivens remedy for failure to provide adequate medical treatment under the Eighth Amendment Cruel and Unusual Punishments Clause). Given concerns regarding the separation of powers between the legislative and judicial branches of government, the Supreme Court has cautioned lower courts not to imply causes of action under Bivens where no statutory authority exists, explaining such a task is better fit for Congress. Ziglar v. Abbasi, 137 S.Ct. 1843, 1856-57 (2017) (“[T]he Court has made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity.”).
Section 1983 has been extended to private actors in certain circumstances as well. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 934 (1982) (holding that private actors may be liable under § 1983 when the action is fairly attributable to the State); Wittner v. Banner Health, 720 F.3d 770, 777 (10th Cir. 2013) (observing that a private actor can be transformed into a state actor under the “joint action” test, in which a court inquires whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights).
In exercising this caution, the Supreme Court has articulated two questions that the court must address before implying a Bivens remedy for a claim not captured by Bivens, Davis, or Carlson. First, the court must determine whether the claim arises in a new context, which broadly encompasses any claims “different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020) (internal quotations omitted). If so, the court must determine second whether “there are special factors counselling hesitation in the absence of affirmative action by Congress.” Ziglar, 137 S.Ct. at 1857 (internal quotations omitted). In resolving these two questions, the court must be mindful of whether an alternative remedy exists that could protect the constitutional interests at stake such that implying a damages remedy under Bivens may interfere with the powers of Congress. See Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 860-61 (10th Cir. 2016).
B. Application
i. New Context
Defendants first contend that while the Supreme Court has extended a Bivens remedy to Eighth Amendment deliberate indifference claims, Mr. Smith's excessive force claim arises in a new context. See [#49 at 6]. This is because Mr. Smith does not allege Defendants Trujillo and Gonzalez were deliberately indifferent to Mr. Smith's serious medical needs, nor that these Defendants were medical personnel, but rather Defendants Trujillo, Gonzalez, and an unidentified FCI officer assaulted Mr. Smith. See [id. at 6-7]. I respectfully disagree.
It is true that Mr. Smith's excessive force claim is not identical on all fours to the deliberate indifference claim in Carlson. But even in the absence of a Supreme Court, Tenth Circuit, or a published District of Colorado opinion extending a Bivens remedy to Eighth Amendment excessive force claims, this alone does not foreclose this court from doing so here. See Lanuza v. Love, 899 F.3d 1019, 1026-27 (9th Cir. 2018) (explaining that the Supreme Court in Ziglar did not broadly prohibit the extension of a Bivens remedy to claims not already recognized under Bivens and its progeny, but rather that the court must consider the specific facts and claims presented in making its determination). Indeed, other Tenth Circuit cases-while not expressly passing on the issue of whether courts may extend Bivens to excessive force claims brought by inmates against federal actors-do not preclude such a cause of action. See Jones v. Theodoroff, 104 Fed.Appx. 141, 143 (10th Cir. 2004) (affirming dismissal of a Bivens action arising from alleged excessive force brought inmate against federal correctional officers without passing on whether such a claim under Bivens is cognizable). And the Supreme Court implicitly recognized that a prisoner can pursue a Bivens claim for failure to protect under the Eighth Amendment if prison officials know that the inmate faces a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it. See Farmer v. Brennan, 511 U.S. 825, 834-45 (1994). Similarly, in the context of § 1983 excessive force claims arising under the Fourth Amendment, the Supreme Court implicitly acknowledged the viability of a Bivens action. See Graham v. Connor, 490 U.S. 386, 394 n.9 (1989) (in articulating the applicable standard, acknowledging that “[t]he same analysis applies to excessive force claims brought against federal law enforcement and correctional officials under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).”).
Next, though mindful of the concerns regarding the separation of powers articulated by the Supreme Court in extending Bivens remedies to new contexts, see Hernandez, 140 S.Ct. at 742, (discussing the development of Bivens jurisprudence and reluctance to create new causes of action), this court disagrees with Defendants' suggestion that divergent legal theories or factual scenarios creates meaningful difference between Mr. Smith's excessive force claim and the deliberate indifference claim in Carlson. See Jacobs v. Alam, 915 F.3d 1028, 1038 (6th Cir. 2019) (“In arguing plaintiff's Bivens claims are ‘new,' defendants make much out of factual differences between Bivens . . . and this case. Yet at no point do defendants articulate why this case ‘differ[s] in a meaningful way' under Ziglar's rubric. Jacobs's action presents no such novel circumstances identified in Ziglar.”). As with Carlson, Mr. Smith's excessive force claim arises under the Eighth Amendment Cruel and Unusual Punishment Clause, Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014), which places strict scrutiny on an inmate's treatment and conditions of confinement and not only requires the provision of adequate medical treatment but also prohibits the use of excessive force, Contreras on behalf of A.L. v. Dona Ana Cty. Bd. of Cty. Commissioners, 965 F.3d 1114, 1116-17 (10th Cir. 2020) (Tymkovich, J., concurring). Similarly, the Farmer Court articulated the appropriate standard for a Bivens claim for an Eighth Amendment conditions of confinement claim based on risks posed to an inmate by other inmates and federal actors' failure to intervene. See Farmer, 511 U.S. at 847.
Under either theory of violation of the Eighth Amendment's prohibition of cruel and unusual punishment-deliberate indifference or excessive force-an inmate must establish both an objective and subjective component. See Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018) (outlining the two prongs of an excessive force claim as requiring a showing that the force “was objectively harmful enough to establish a constitutional violation” and done so “maliciously and sadistically for the very purpose of causing harm[.]”); Wilson v. Falk, 877 F.3d 1204, 1209 (10th Cir. 2017) (outlining the two prongs of a deliberate indifference as requiring a showing the defendant was “subjectively aware” of an objectively serious medical need and “recklessly disregarded that risk.”). Thus, as with Carlson, Mr. Smith's excessive force claim seeks damages based on the Eighth Amendment's proscription of prisoner mistreatment while within the custody of federal actors. See Reid v. United States, 825 Fed.Appx. 442, 444 (9th Cir. 2020) (finding no meaningful difference between Carlson and the plaintiff's excessive force claim in concluding that Bivens includes an implied right of action for Eighth Amendment excessive force violations).
Nor does this court interpret Ziglar as precluding “run-of-the-mill challenges to ‘standard law enforcement operations' that fall well within Bivens itself.” Jacobs, 915 F.3d at 1038. Cf. Bueno Diaz v. Mercurio, 442 F.Supp.3d 701, 708 (S.D.N.Y. 2020) (concluding that the plaintiff's Fourth Amendment excessive force claim did not arise in a “new context” because it was a basic challenge to standard law enforcement operations and there existed substantial judicial guidance regarding the unconstitutionality of excessive force). Indeed, “[a] claim for damages based on individualized mistreatment by rank-and-file federal officers is exactly what Bivens was meant to address, ” and recognizing an implied Bivens remedy for Eighth Amendment excessive force claims “will not require courts to plow new ground because there is extensive case law establishing conditions of confinement claims and the standard for circumstances that constitute cruel and unusual punishment.” Reid, 825 Fed.Appx. at 444-45; accord Ullery v. Bradley, 949 F.3d 1282, 1290 (10th Cir. 2020) (“The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment”; “among unnecessary and wanton inflictions of pain are those that are totally without penological justification.” (internal quotations omitted)).
With this understanding, I find no meaningful difference between the deliberate indifference claim in Carlson and Mr. Smith's excessive force claim-both arising under the Eighth Amendment. In addition, it appears that the Tenth Circuit already recognizes, at least implicitly, the extension of Bivens to a claim of excessive force arising in the Fourth Amendment context. See, e.g., Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010) (considering Bivens excessive force claim arising under the Fourth Amendment against federal Alcohol Firearms and Tobacco agents); Holland ex rel. Overdorff, 268 F.3d at 1195; Serrano v. United States, 766 Fed.Appx. 561, 565-70 (10th Cir. 2019) (considering whether qualified immunity shielded a deputy United States Marshal from liability on plaintiff's Fourth Amendment excessive force claim brought pursuant to Bivens). To find otherwise would allow individual federal officials to escape liability for the alleged unconstitutional use of force, depending on the timing of the act or so long as they provide adequate medical care afterwards-even with dire consequences. This court is not convinced that the Supreme Court, in cautioning against extending Bivens remedies to new contexts, intended for such a result.
ii. Special Factors
Even if Mr. Smith's excessive force claim arose in a new context, the court finds no special factors counseling against extending a Bivens remedy here. In this regard, Defendants argue that the FTCA provides an alternative remedy for Mr. Smith and the court should not insert itself into the BOP's operation and management of its federal prisons. See [#49 at 7-8]. I respectfully disagree.
To start, this court is not convinced that the FTCA provides an adequate alternative remedy to preclude a Bivens claim based on excessive force in violation of the Eighth Amendment. The FTCA provides a federal cause of action against the United States for torts arising under state law and requires courts to apply the substantive law of the place where the event occurred. 28 U.S.C. § 1346(b)(1). As the Tenth Circuit explained, the Supreme Court in Carlson rejected such an assertion because the FTCA imposes liability on the United States, not individual federal actors, and thus does not have the same deterring effect as a Bivens remedy. Smith v. United States, 561 F.3d 1090, 1101 (10th Cir. 2009). This is because a Bivens claim allows for the possibility of punitive damages and a jury trial-neither of which is available under the FTCA. See id.
Though not addressing the issue of whether Bivens provides an implied right of action for Eighth Amendment excessive force claims, Justice Sotomayor's recent concurrence in Brownback v. King, 141 S.Ct. 740, 751-52 (2021) (Sotomayor, J., concurring) highlights a different consideration with respect to the question of whether the FTCA is an adequate alternative remedy to a Bivens claim in these circumstances: a potentially meritorious claim may survive under Bivens while failing under the FTCA due to a difference in the elements of the applicable legal standards. See Brownback, 141 S.Ct. at 751-52 (Sotomayor, J., concurring). Though the recent changes to qualified immunity under Colorado state law, Colo. Rev. Stat. § 13-21-131, do not appear to apply in the context of incarcerated inmates (particularly federal ones), such change highlights the potential for different outcomes under Colorado state law, applied in the FTCA context, versus federal law, applied to a Bivens claim. And Defendants point to no other alternative remedies (such as habeas corpus relief, state-law tort relief, or equitable relief) that counsel hesitation at extending a Bivens remedy to Mr. Smith's excessive force claim. See Reid, 825 Fed.Appx. at 445 (finding no special factors weighed against a Bivens remedy for the plaintiff's Eighth Amendment excessive force claim because the defendant failed to identify other alternative remedies).
Appellee James King brought an action against, inter alia, a Federal Bureau of Investigation (“FBI”) agent, alleging violations of the Fourth Amendment pursuant to 42 U.S.C. § 1983 and Bivens, as well as an FTCA claim against the United States. King v. United States, No. 1:16-CV-343, 2017 WL 6508182, at *2 (W.D. Mich. Aug. 24, 2017), rev'd and remanded, 917 F.3d 409 (6th Cir. 2019), rev'd sub nom. Brownback v. King, 141 S.Ct. 740 (2021). The district court held that § 1983 did not apply to the FBI agent as a federal actor, and qualified immunity precluded his Bivens claim for excessive force under the Fourth Amendment. See King, 2017 WL 6508182, at *6, **9-10. It also dismissed FTCA claims based on governmental immunity and failure to state a cognizable claim, reasoning that once plaintiff failed to establish a cognizable FTCA claim, it also was divested of subject matter jurisdiction over such claim. Id. at *15. On appeal, the United States Court of Appeals for the Sixth Circuit (the “Sixth Circuit”) expressly considered whether the FTCA's judgment bar could apply in the instance where the FTCA claim was dismissed for lack of subject matter jurisdiction and held that it did not. See King v. United States, 917 F.3d 409, 419 (6th Cir. 2019) rev'd sub nom. Brownback v. King, 141 S.Ct. 740 (2021). The Sixth Circuit also held that plaintiff's excessive force claims properly arose as implied right of action pursuant to Bivens and reversed the application of qualified immunity. Id. at 433-34. The only issue before the Supreme Court was whether the FTCA's judgment bar could be triggered by a dismissal for failure to state a cognizable claim when such a finding also divests a district court of subject matter jurisdiction over such claim.
Next, this court is not convinced that extending a Bivens remedy to Mr. Smith's excessive force claim interferes with the BOP's operation of its federal prisons. To be sure, courts are “mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts.” Est. of DiMarco v. Wyoming Dep't of Corr., Div. of Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007). But Mr. Smith's excessive force claim concerns the conduct of individual federal actors-something Bivens set out to address. Reid, 825 Fed.Appx. at 444-45 (“A claim for damages based on individualized mistreatment by rank-and-file federal officers is exactly what Bivens was meant to address”); cf. Smith, 561 F.3d at 1101 (explaining that the FTCA is not an adequate alternative remedy to a Bivens claim because the FTCA lacks the same deterrent on an individual federal actor as Bivens). Indeed, Mr. Smith seeks redress from Defendants Trujillo, Gonzalez, and the unidentified FCI officer in their individual capacities, and such cases, “due to their very nature[, ] are difficult to address except by way of damages actions after the fact.” Ziglar, 137 S.Ct. at 1862 (categorizing such cases as “damages or nothing”). Ultimately, Mr. Smith's excessive force claim is not one implicating important BOP policies that counsel against extending a Bivens remedy. Cf. Id. at 1860-62 (declining to extend a Bivens remedy where the plaintiffs sought to challenge the implementation of an executive policy regarding the confinement of inmates deemed a national security risk, because doing so raises the possibility of judicial interference into “matters committed to the other branches.”); Hernandez, 140 S.Ct. at 739 (declining to extend a Bivens remedy to a claim involving “a cross-border shooting claim [that] has foreign relations and national security implications”).
Beyond the Ninth Circuit's unpublished opinion in Reid, this court found no other decision by any court of appeal addressing the precise issue of whether Bivens included an implied right of action for excessive force arising under the Eighth Amendment against a federal actor. But this court notes that a number of courts of appeals, including the Tenth Circuit, appear to implicitly recognize such a cause of action, focusing their analysis on defenses such as qualified immunity, see Hill v. Crum, 727 F.3d 312 (4th Cir. 2013); whether the evidence amounted to a constitutional violation, see Burke v. Bowns, 653 Fed.Appx. 683, 698 (11th Cir. 2016); whether the defendant personally participated in the alleged constitutional violation, see McCrudden v. United States, 763 Fed.Appx. 142, 145 (3d Cir. 2019); or whether the claim was properly exhausted, see Watkins v. Donnelly, 551 Fed.Appx. 953, 957 (10th Cir. 2014). Thus, this court concludes that an implied right arising under the Eighth Amendment for excessive force claims is appropriate under Bivens.
C. Conclusion
In sum, this court respectfully concludes that Mr. Smith may proceed with his Eighth Amendment excessive force claim asserted pursuant to Bivens. Accordingly, I respectfully RECOMMEND that the Motion for Dismissal in Part be DENIED in this regard.
II. Claim 2 - Deliberate Indifference
A. Applicable Law
The Eighth Amendment's proscription on cruel and unusual punishment extends to the conditions under which an inmate is confined and requires prison officials to provide adequate medical care. Contreras on behalf of A.L., 965 F.3d at 1116-17 (Tymkovich, J., concurring). For instance, “[d]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Walker, 947 F.3d at 1249 (brackets omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To demonstrate deliberate indifference, Plaintiff must satisfy both an objective component and a subjective component. Requena, 893 F.3d at 1215. That is, he must show that Dr. Pelton was “subjectively aware” of an objectively serious medical need and “recklessly disregarded that risk.” Wilson, 877 F.3d at 1209 (brackets and internal quotation marks omitted).
B. Application
Defendants move to dismiss Claim 2 because Mr. Smith fails to plead either an objectively serious medical need or that Dr. Pelton consciously disregarded a substantial risk of harm to Mr. Smith's wellbeing. See [#49 at 9-10]. I respectfully agree.
i. Objective Component
“The objective component of deliberate indifference is met if the ‘harm suffered rises to a level “sufficiently serious” to be cognizable under the Cruel and Unusual Punishment Clause.'” Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (quoting Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005)). If a plaintiff alleges a denial of medical care, he must “produce objective evidence that the deprivation at issue was in fact sufficiently serious.” Est. of Booker, 745 F.3d at 430 (internal quotation marks omitted). “‘A medical need is objectively serious if it 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.'” Clark v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018) (quoting Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005)). If “the claim involves a delay in treatment, [a plaintiff] ha[s] to show that the delay resulted in substantial harm.” Vasquez v. Davis, 882 F.3d 1270, 1275 (10th Cir. 2018) (internal quotation marks omitted). A showing of “lifelong handicap, permanent loss, or considerable pain” may satisfy the substantial harm requirement. McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (internal quotation marks omitted).
Mr. Smith's Second Amended Complaint alleges he suffered pain and injuries following Defendants Trujillo, Gonzalez, and the unidentified FCI officer's use of force on or about May 19, 2019. See [#21 at 7-10, 13-14]. He further alleges he submitted various “sick-calls” but received only conservative treatments that did not alleviate his pain. See [id.]. After receiving an X-ray, which revealed “no damaged bones in [his] shoulders, ” Mr. Smith alleges other medical providers indicated Mr. Smith would receive an MRI. See [id. at 11]. According to Mr. Smith, Dr. Pelton “denied the MRI.” [Id. at 12]. Yet Plaintiff alleges that he did receive an MRI on his shoulder that revealed no “broken bones.” [Id. at 15].
Defendants argue, and this court agrees, that Mr. Smith's allegations fail to allege an objectively serious medical need. Indeed, Mr. Smith's Second Amended Complaint admits that various medical personnel prescribed conservative treatments for his injuries. See Est. of Booker, 745 F.3d at 430 (explaining that the objective component of a deliberate indifference claim based on the delay or denial of medical treatment requires a showing that the delay and/or denial was sufficiently serious). Moreover, Mr. Smith alleges that both his X-ray and MRI revealed no broken bones in his shoulders. See [#21 at 11, 15]. While Mr. Smith seeks to bolster his allegations of severe pain and injuries through his Response, [#80], a plaintiff may not effectively amend his pleading through a response to a motion to dismiss. Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (“Plaintiff, however, cannot amend her complaint by adding factual allegations in response to Defendant's motion to dismiss.”). Further, the medical evidence alluded to in Mr. Smith's Response, aside from not being before the court, is not typically considered by the court on a Rule 12(b)(6) motion. See Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014) (explaining that such documents, while undoubtedly relevant to the plaintiff's claims, “are not the kind of documents [courts] have ordinarily allowed to be entertained at the motion to dismiss stage.”).
As pleaded, it does not appear that Mr. Smith has alleged an objectively serious medical need that so obviously needed treatment such that the delay in receiving an MRI caused substantial harm. See Vasquez, 882 F.3d at 1275. Without more, this court respectfully concludes that Mr. Smith fails to establish the objective component of his deliberate indifference claim (Claim 2) against Dr. Pelton. See Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (finding “no medical support for the existence of the disorders” and “no symptoms that would alert a lay person to the need for treatment, ” but rather “only a failure to treat self-diagnosed ailments, which is insufficient to establish an Eighth Amendment violation.”).
ii. Subjective Component
Notwithstanding this court's conclusion above, because Mr. Smith proceeds pro se, I consider whether he satisfies the subjective component of a deliberate indifference claim against Dr. Pelton for the sake of completeness. For the following reasons, I conclude he fails to do so.
“To satisfy the subjective component, the plaintiff must show that the defendant knew that the plaintiff faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” The Estate of Lockett by & through Lockett v. Fallin, 841 F.3d 1098, 1112 (10th Cir. 2016) (internal quotation marks omitted). “The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed.” Redmond, 882 F.3d at 940 (brackets and internal quotation marks omitted). Further, a plaintiff may satisfy the subjective component if the need for treatment is so obvious that any delay or denial equates to recklessness; mere negligence, even if constituting medical malpractice, is not enough. See Self v. Crum, 439 F.3d 1227, 1231-33 (10th Cir. 2006). But prison officials do not “act with deliberate indifference when they provide medical treatment even if it is subpar or different from what the inmate wants.” Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018). Ultimately, to prove a culpable mindset, a plaintiff “must show a prison official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Walker, 947 F.3d at 1249 (internal quotation marks omitted).
Defendants argue that Mr. Smith fails to allege any facts establishing Dr. Pelton's culpable state of mind. See [#49 at 11]. I respectfully agree.
As pleaded, Mr. Smith alleges that Dr. Pelton denied the request for an MRI and did so not long after Mr. Smith filed a grievance regarding his perceived inadequate medical care. See [#21 at 12]. But as discussed above, Mr. Smith's allegations fail to demonstrate the existence of an objectively serious medical need that would have alerted Dr. Pelton to the need for further treatment. See Est. of Booker, 745 F.3d at 431-32 (explaining that a defendant can be deliberately indifferent when the plaintiff's symptoms reveal an obvious need for treatment, especially when the defendant's training should alert her to the need for treatment). And Mr. Smith's suggestions in his Response that Dr. Pelton was aware of Mr. Smith's condition based on a review of Mr. Smith's medical records does not suggest otherwise. See Evans v. Diamond, 957 F.3d 1098, 1100 (10th Cir. 2020) (“The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” (ellipsis and internal quotation marks omitted)).
Further, Mr. Smith admits that he received treatment for his injuries, and while those treatments did not alleviate his alleged pain, it is well established that inmates do not have a constitutionally protected right to a preferred course of treatment. See Henderson v. Fisher, 767 Fed.Appx. 670, 674 (10th Cir. 2019) (explaining that “an inmate has only a constitutional right to care, not to the type or scope of medical care which he personally desires.” (internal quotations omitted)). As to Dr. Pelton specifically, Plaintiff's sole assertion is that Dr. Pelton denied Plaintiff an MRI. But “[d]isagreement with a doctor's particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation.” Gee, 627 F.3d at 1192. Nor will courts find deliberate indifference when a medical provider exercises her medical judgment in refusing to undertake additional testing. Self, 439 F.3d at 1232 (finding no deliberate indifference for matters “that traditionally fall within the scope of medical judgment, ” such as decisions to “undertake additional medical testing.”).
Absent from Mr. Smith's Second Amended Complaint is any suggestion that Dr. Pelton intentionally interfered with or denied a prescribed course of treatment for an objectively serious medical need. See Redmond, 882 F.3d at 940. At the least, Mr. Smith alleges a mere disagreement with treatment, and at the most, negligence. Neither is sufficient to establish an Eighth Amendment deliberate indifference claim. See Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (“Moreover, a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.”); Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (“Deliberate indifference requires more than a showing of simple or heightened negligence.”).
C. Conclusion
Based on the foregoing, this court respectfully concludes that Mr. Smith fails to plead a plausible Eighth Amendment deliberate indifference claim against Dr. Pelton. Thus, I respectfully RECOMMEND that the Motion for Dismissal in Part be GRANTED in this regard.
III. Claim 3 - Medical Negligence Under the FTCA
A. Applicable Law
Sovereign immunity shields the United States and its agencies from suit and deprives federal courts of jurisdiction to consider such claims. San Juan Cty., Utah v. United States, 754 F.3d 787, 792 (10th Cir. 2014). This is so unless “Congress unequivocally expresses its intention to waive the government's sovereign immunity in the statutory text.” Governor of Kansas v. Kempthorne, 516 F.3d 833, 841 (10th Cir. 2008) (internal quotation marks omitted). The FTCA is one of those statutes and “provides a limited waiver of sovereign immunity” when the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment” would establish liability for a private person under the laws where the conduct occurred. Ball v. United States, 967 F.3d 1072, 1075 (10th Cir. 2020) (citing 28 U.S.C. § 1346(b)). “State substantive law applies to suits brought against the United States under the FTCA, ” which is Colorado law in this matter. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004).
Relevant here, Colorado law requires plaintiffs to file a certificate of review to pursue claims alleging professional negligence by a licensed professional:
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 . . . against such person unless the court determines that a longer period is necessary for good cause shown.Colo. Rev. Stat. § 13-20-602(1)(a); see also Id. § 13-20-602(3)(a) (describing the contents of a sufficient certificate of review). The Tenth Circuit has held that Colorado's certificate of review requirement constitutes state substantive law and therefore applies to FTCA claims based on medical negligence. See Hill, 393 F.3d at 1117. Moreover, this requirement applies to all plaintiffs, even those proceeding pro se. See Yadon v. Southward, 64 P.3d 909, 912 (Colo.App. 2002). Failure to file a certificate of review necessitates the dismissal of the claim. See Colo. Tr. for Prot. & Benefits v. Souder, Miller & Assocs., Inc., 870 F.Supp.2d 1173, 1179 (D. Colo. 2012) (quoting Colo. Rev. Stat. § 13-20-602(4)).
But a plaintiff may forego filing a certificate of review if she believes there is no need for expert testimony to establish a prima facie case of negligence. See Martinez v. Badis, 842 P.2d 245, 249 (Colo. 1992); accord Sherman v. Klenke, 653 Fed.Appx. 580, 595 (10th Cir. 2016) (certificate of review required if the claim for professional negligence requires expert testimony to substantiate the claim). Under such circumstances, § 13-20-602(2) provides a mechanism by which the defendant can compel the plaintiff to provide a certificate of review when the defendant believes expert testimony is necessary. See Miller v. Rowtech, L.L.C., 3 P.3d 492, 494 (Colo.App. 2000) (discussing Colo. Rev. Stat. § 13-20-602(2)). The court must then decide whether expert testimony is required, thereby necessitating a certificate of review. See id.; see also Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623, 628 (Colo. 1999) (explaining that courts should be mindful of § 13-20-602's legislative purpose to “weed[] out frivolous claims” and “avoid unnecessary costs.”).
B. Application
Defendants move to dismiss Mr. Smith's FTCA claim predicated on the alleged medical negligence of Dr. Pelton because expert testimony is required to substantiate such a claim. [#49 at 11-12]. Having not filed a certificate of review, Defendants argue that the court must dismiss Plaintiff's FTCA claim for medical negligence. See [id.]. I respectfully agree.
In Colorado, medical malpractice actions are a subset of negligence actions and thus require a plaintiff to “show a legal duty of care on the defendant's part, breach of that duty, injury to the plaintiff, and that the defendant's breach caused the plaintiff's injury.” Day v. Johnson, 255 P.3d 1064, 1068-69 (Colo. 2011). Establishing the requisite duty of care depends on whether the physician-defendant is a nonspecialist or specialist. See Hall v. Frankel, 190 P.3d 852, 858 (Colo.App. 2008) (“Physicians who practice a medical specialty are required to possess a higher degree of skill within that specialty than would a general practitioner or a practitioner in another specialty.”). “A nonspecialist physician must act consistently with the standards required of the medical profession in the community where he or she practices[, ]” whereas “a physician who holds himself or herself out as a specialist in a particular field of medicine is measured against a standard commensurate with that of a reasonable physician practicing in that specialty.” Jordan v. Bogner, 844 P.2d 664, 666 (Colo. 1993).
But “[a] physician possessing ordinary skill and exercising ordinary care in applying it is not responsible for a mistake of judgment.” Basanti v. Metcalf, No. 11-CV-02765-PAB-NYW, 2015 WL 868758, at *27 (D. Colo. Feb. 26, 2015) (citing Bonnet v. Foote, 107 P. 252, 254 (Colo. 1910)). Indeed, a poor outcome is insufficient to prove negligence. See Day, 255 P.3d at 1069. Mr. Smith must instead prove a breach of the duty of care, “measured by whether a reasonably careful physician of the same school of medicine as the defendant would have acted in the same manner as did the defendant in treating and caring for the patient.” Gallardo v. United States, 752 F.3d 865, 871 (10th Cir. 2014) (quoting Day, 255 P.3d at 1069)).
Mr. Smith's medical negligence claim against Dr. Pelton hinges on whether Dr. Pelton's denial of an MRI breached a duty of care owed to Mr. Smith. See [#21 at 11-15]. To be sure, there may be instances where a medical malpractice claim “lies within the ambit of common knowledge or experience of ordinary persons, ” but “matters relating to medical diagnosis and treatment ordinarily involve a level of technical knowledge and skill beyond the realm of lay knowledge and experience, ” requiring expert opinion testimony. Melville v. Southward, 791 P.2d 383, 387 (Colo. 1990). Under the circumstances, I conclude such a claim requires the use of expert testimony. See Luciano v. United States, No. 15-CV-02792-NYW, 2017 WL 6729620, at *7 (D. Colo. Dec. 29, 2017) (concluding expert testimony was required for the plaintiff's medical negligence claim under the FTCA where the issue was whether the licensed professional's failure to remove gauze from the plaintiff's gums constituted breach of a duty of care); but cf. Chrisco v. Raemisch, 374 F.Supp.3d 1093, 1099 (D. Colo. 2019) (concluding at the motion to dismiss phase that it was not clear whether expert testimony was required for the plaintiff's medical negligence claim predicated on allegations the defendants falsified records to inflict unnecessary pain on the plaintiff).
Nor is the court convinced by Mr. Smith's argument that he be excused from the certificate of review requirement because he is beholden to the BOP and its medical providers. See [#80 at 5]. While this court understands the difficulties pro se inmates face in securing expert testimony, Mr. Smith cites no authority to support his assertion that he be exempt from the certificate of review requirement, and this court's independent research similarly yielded no results. Indeed, courts within the Tenth Circuit have consistently applied the certificate of review requirement to pro se inmates asserting medical negligence claims under the FTCA based on the perceived inadequacy of medical treatment. See, e.g., Coleman v. United States, No. 18-CV-01965-KMT, 2020 WL 6151005, at *3 (D. Colo. Oct. 20, 2020); Abdo v. Balsick, No. 18-CV-01622-KMT, 2019 WL 6726230, at *13 (D. Colo. Dec. 11, 2019); Morales v. Rattan, No. 17-CV-03009-PAB-KLM, 2019 WL 588192, at *5 (D. Colo. Feb. 13, 2019). Thus, this court respectfully concludes that Mr. Smith was required to file a certificate of review but failed to do so, necessitating dismissal of his FTCA claim. See Cestnik v. Fed. Bureau of Prisons, 84 Fed.Appx. 51, 53 (10th Cir. 2003) (no abuse of discretion where the district court dismissed the plaintiff's medical negligence claim under the FTCA for failure to file a certificate of review).
C. Conclusion
As discussed, this court concludes that Mr. Smith's FTCA claim relating to Dr. Pelton's alleged medical negligence requires the use of expert testimony to substantiate such a claim. For this reason, Mr. Smith was required to file a certificate of review under Colorado law. Having failed to do so, this court respectfully RECOMMENDS that the Motion for Dismissal in Part be GRANTED in this regard.
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) Defendants' Motion for Dismiss in Part [#49] be GRANTED IN PART and
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings 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); 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. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 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, conclusions of law, 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 and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
A copy of this Recommendation shall be sent to:
CASE MANAGER FOR Joseph Smith #76280-083
VICTORVILLE
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 3900
ADELANTO, CA 92301