Barroca v. United States

• Decision Date: 27 January 2021
• Docket Number: Case No. 19-2688-DDC-TJJ
• Parties: ROBERT BARROCA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Kansas

ROBERT BARROCA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case No. 19-2688-DDC-TJJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

January 27, 2021

MEMORANDUM AND ORDER

Plaintiff Robert Barroca brings this pro se¹ medical negligence action against defendant, the United States of America, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Doc. 36. Plaintiff seeks to recover damages for injuries that, he contends, he sustained from negligent medical care while in custody of the Federal Bureau of Prisons ("BOP"). Id. This matter is before the court on defendant's Motion for Partial Dismissal or, in the Alternative, Motion for Partial Summary Judgment (Doc. 40). Defendant contends that the court lacks subject matter jurisdiction over plaintiff's claims because plaintiff has failed to exhaust administrative remedies, as the FTCA requires. Defendant also argues many of plaintiff's claims are time barred by the FTCA's two year statute of limitations and Kansas's four year statute of repose. Plaintiff filed a Response (Doc. 50) and defendant has filed a Reply (Doc. 52). For reasons explained below, the court grants defendant's motion in part and denies it in part.

I. Legal Standards

Defendant asks the court to dismiss, or in the alternative, grant summary judgment against some of plaintiff's claims asserting both jurisdictional arguments and arguments that plaintiff has failed to state a claim.

A. Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) for Lack of Subject Matter Jurisdiction

Defendant argues the court lacks subject matter jurisdiction over many of plaintiff's claims because he failed to satisfy the FTCA's jurisdictional pre-suit notice requirement.

Because federal courts are courts of limited jurisdiction, a presumption against jurisdiction exists, and the party invoking federal jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "Motions to dismiss for lack of subject matter jurisdiction 'generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations [about] subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.'" City of Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (quoting Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), cert. denied, 538 U.S. 999 (2003)). If the motion only challenges the jurisdictional allegation's sufficiency, the district court must accept all such allegations as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). But the analysis differs if the movant goes beyond the complaint's allegations and challenges the facts on which subject matter jurisdiction depends. In that circumstance, a court "may not presume the truthfulness of the complaint's factual allegations" and "has wide discretion to allow affidavits [and] other documents . . . to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. at 1003.

Considering material outside the pleadings does not require a court to convert a Rule 12(b)(1) motion to dismiss into one seeking summary judgment under Rule 56 unless resolving"the jurisdictional question is intertwined with the merits of the case." Id. (citing Wheeler v. Hurdman, 825 F.2d 257, 259 & n.5 (10th Cir. 1987), cert. denied, 484 U.S. 986 (1987)). The jurisdictional question is intertwined with the merits of the case if "resolution of the jurisdictional question requires resolution of an aspect of the substantive claim." Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000).

As explained below, to consider defendant's Rule 12(b)(1) failure to exhaust argument, the court must examine plaintiff's Administrative Claim attached to defendant's motion. This is so because plaintiff failed to attach or otherwise claim he submitted an administrative claim. See Doc. 36. But resolving defendant's 12(b)(1) motion doesn't require the court to address the case's merits—i.e., the merits of plaintiff's negligent medical care claims. So, considering the Administrative Claim does not require the court to convert the portion of defendant's motion seeking dismissal under Rule 12(b)(1) into one seeking summary judgment under Rule 56. Cf. Trobaugh v. United States, 35 F. App'x 812, 814-15 (10th Cir. 2002) (holding district court properly treated Rule 12(b)(1) motion arguing FTCA's statute of limitations had expired as a Rule 12(b)(1) motion rather than converting it to a summary judgment motion because the FTCA "statute of limitations" wasn't "intertwined with the merits" of the case); Gonzalez v. United States, 284 F.3d 281, 287-88 (1st Cir. 2002) (concluding facts relevant to timeliness of plaintiff's claims and whether court had subject matter jurisdiction don't go to the merits of plaintiff's medical malpractice FTCA claim and district court thus was not required to convert Rule 12(b)(1) motion to a Rule 56 motion despite considering materials outside pleadings); Mechler v. United States, No. 12-1183-EFM, 2013 WL 3989640, at *3 (D. Kan. Aug. 2, 2013) (finding facts relevant to the timeliness of plaintiff's FTCA claims don't go to the merits of the private nuisance claim and so the court need not convert a motion for summary judgment).Consistent with these holdings, the court determines the jurisdiction question under Rule 12(b)(1) and the FTCA in Part III.A., below.

B. Motion to Dismiss under Rule 12(b)(6) or, Alternatively, Motion for Summary Judgment under Rule 56

Unlike a Rule 12(b)(1) motion, when a court considers a matter outside the pleadings for a Rule 12(b)(6) motion, the court must convert the motion into one for summary judgment. See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). As explained more below, to consider defendant's argument that plaintiff failed to state plausible claims for some of the allegations in the Second Amended Complaint because the claims are untimely, the court must consider a matter outside of the pleadings—plaintiff's Administrative Claim.

The court may convert a motion to dismiss under Rule 12 into a motion for summary judgment if plaintiff had explicit notice that the district court intended to do so. See Marquez v. Cable One, Inc., 463 F.3d 1118, 1121 (10th Cir. 2006). When a defendant styles its motion as a motion to dismiss, or, alternatively, one seeking summary judgment and includes materials outside the complaint—as defendant did here—our Circuit has held plaintiff received the requisite explicit notice. Id. The Circuit also considers whether plaintiff's response clearly demonstrates that "he [is] aware that the motion would be converted to a Rule 56 motion for summary judgment." Id.

Here, defendant styled its motion as a Motion for Partial Dismissal, or in the Alternative, Motion for Partial Summary Judgment. Doc. 40. And, defendant provided plaintiff with a Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment on April 8, 2020. See Doc. 42. This notice informed plaintiff that if he didn't respond with evidence contradicting the facts asserted by defendant then the court could accept defendant's facts as true. Id. at 1-2. The notice attached Fed. R. Civ. P. 56 and D. Kan. Rule 56.1, as D. Kan. Rule 56.1(f) requires.Docs. 42-1, 42-2. Plaintiff's Response to defendant's motion incorporates and discusses the exhibits attached to defendant's motion and doesn't challenge any of defendant's statement of facts. See Doc. 50 at 2, 6-9. Plaintiff also explicitly refers to defendant's motion as one seeking dismissal or summary judgment. See id. at 1-2. Plaintiff's Response thus demonstrates plaintiff was aware that the court could convert the motion into one for summary judgment. Because the record shows plaintiff received the required explicit notice that the court could convert defendant's motion into one for summary judgment, the court considers defendant's arguments about the timeliness of plaintiff's claims under Rule 56's summary judgment standard.

"Summary judgment is proper if the moving party shows 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" United States v. Distefano, 279 F.3d 1241, 1243 (10th Cir. 2002) (quoting Fed. R. Civ. P. 56(a)). "When applying this standard, [the court] view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving party." Id. (citation and internal quotation marks omitted).

"At summary judgment, the moving party carries the initial burden of demonstrating a lack of genuine issue of material fact, which it may satisfy by showing an 'absence of evidence to support the nonmoving party's case.'" Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015) (quoting Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013)). Then, if the moving party satisfies its initial burden, "the burden shifts to the nonmoving party 'to set forth specific facts showing that there is a genuine issue for trial.'" Id. (quoting Schneider, 717 F.3d at 767). "'A fact is 'material' if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is 'genuine' if a rational jurycould find in favor of the nonmoving party on the evidence presented.'" Id. (quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)).

Finally, summary judgment is not a "disfavored procedural shortcut[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Instead, it is an important procedure "designed 'to secure the just, speedy and inexpensive determination of every action.'" Id. (quoting Fed. R. Civ. P. 1). "The very purpose of a summary judgment action is to determine whether trial is necessary." White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).

II. Factual Background

The following facts either are uncontroverted or, where genuinely controverted, stated...