Noe v. United States

1

PETER GEORGE NOE Plaintiff, v. UNITED STATES, DR. BURKLEY, H. SCHOUWEILER, MS. DUNN, MS. FELLOWS, and FEDERAL BUREAU OF PRISONS Defendants.

Civil Action No. 21-cv-01589-CNS-STV

United States District Court, D. Colorado

December 14, 2022

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.

I. BACKGROUND^[1]

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.^[2][Id.]

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).^[3][#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]

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...