Chipps v. United States

Decision Date29 December 2013
Docket NumberCivil Action No. 11-cv-02484-CMA-BNB
CourtU.S. District Court — District of Colorado

Judge Christine M. Arguello


This matter is before the Court on Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(h)(3). (Doc. # 34.) For the following reasons, this Court denies the motion.


Between September 2005 and February 2009, Plaintiff was a prisoner at the Federal Correctional Institution ("FCI") in Florence, Colorado and, later, at the FCI in Sandstone, Minnesota. (Doc. # 1 at 2.) On September 3, 2005, Plaintiff sought medical attention at FCI Florence's clinic, complaining about blood in his urine and pain in his right side and groin. (Id.) Medical staff diagnosed him with kidney stones and gave him medication. (Id.) Plaintiff returned to the clinic on September 8, 2005, with similar complaints (Doc. # 1 at 2-3) and was diagnosed with kidney stones and a urinary tract infection. (Doc. # 8-1.) When Plaintiff returned to the clinic for a check-up onSeptember 20, 2005, his symptoms were no longer present. (Doc. # 8-1.) A urine sample taken from Plaintiff in October 2005 revealed the continued presence of blood (Doc. # 1 at 3), but Plaintiff was not told about the results. (Doc. # 8-1.) No healthcare provider performed testing to determine the cause of the blood from 2005 until 2009. (Doc. # 1 at 3.) Meanwhile, Plaintiff was transferred to the FCI in Sandstone. (Id.) Plaintiff visited the medical clinics in Florence and Sandstone several times from 2007 through 2009 for other medical problems. (Doc. # 1; Doc. # 7-1.)

Plaintiff requested his medical records from the Federal Bureau of Prisons ("BOP") on December 26, 2008. (Doc. # 34-5.) The health clinic at Sandstone received Plaintiff's request on December 29, 2008. (Doc. #34-4 at 2; Doc. #34-5.) The following day, December 30, 2008, Ms. Jaclyn Revier, a Health Information Technician at Sandstone, placed Plaintiff on "call-out" so he could pick-up his medical records. (Doc. 34-4 at 1-2.) The record does not reveal what exactly was contained in these medical records only that they were handed over to Plaintiff on December 30.

On February 9, 2009, Plaintiff's symptoms returned. (Doc. # 8-1.) He reported to the clinic in Sandstone, complaining of an inability to urinate and a recent episode of bloody urine. (Id.) A urinalysis performed on February 9, 2009, showed a large amount of blood in Plaintiff's urine and a CT scan performed later that same day detected probable kidney masses. (Doc. # 34-6, at 1-2.) Further, Mr. Pete Bennett, a nurse at Sandstone, entered a clinical encounter administrative note on February, 11, 2009, that Plaintiff was to be treated for bilateral renal cancer. (Id. at 3.) There is no indication in the record presented whether Plaintiff knew of this diagnosis on February 11, 2009.

On February 17, 2009, Plaintiff's right kidney was removed. (Doc. # 39-4.) A pathology exam performed on that same date revealed that Plaintiff had kidney cancer. (Doc. # 39-5, at 1.) Plaintiff claims that he first learned that he had kidney cancer on February 17, 2009. (Doc. # 8-1, at 2.) In April 2009, part of Plaintiff's left kidney was removed, and a pathology exam revealed that it, too, was cancerous. (Doc. # 1 at 4.)

When claiming damage, injury, or death, against the federal government, a claimant must submit a form SF-95 to the appropriate agency. Plaintiff submitted this form to the BOP claiming personal injury for the loss of his kidneys and for increased risk of death or disability from the development of kidney cancer. (Doc. #7-1.) The BOP received Plaintiff's SF-95 on February 15, 2011. (Doc. #7-1 at 1).


Plaintiff filed a claim against the United States alleging negligence in its diagnosis and treatment of his kidney condition on September 21, 2011. Specifically, Plaintiff alleged negligence for the following: (1) "failing to properly work up" the cause of blood in his urine and (2) failing "to construct medical records in a proper manner." (Doc. # 1 at 4.) Plaintiff alleged that this negligence was a proximate cause of the "worsening" and "spread" of cancer throughout Plaintiff's kidneys. (Id.) Plaintiff alleged that these claims arose under the Federal Tort Claims Act or FTCA. See 28 U.S.C. § 1346(b)(1).

On January 3, 2012, Defendant filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), arguing that this Court does not have subject-matter jurisdiction because Plaintiff's claim is time-barred by the FTCA's statute of limitations. See 28 U.S.C. § 2401(b). (Doc. # 7.) This Court denied Defendant's Motion to Dismiss on September 24, 2012. (Doc. #14.)

After completing discovery, Defendant filed its current Motion to Dismiss on August 1, 2013. (Doc. # 34.) Plaintiff responded on August 22, 2013 (Doc. # 39), and Defended replied on September 4, 2013 (Doc. #40).


The Court must dismiss a cause of action if it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). The issue of subject matter jurisdiction may be raised at any time during the proceedings. See McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988). Analytically, a Rule 12(h)(3) motion and a Rule 12(b)(1) motion are the same. See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 884 n.3 (3d Cir. 1992) (noting that the distinction between the two motions is that a 12(h)(3) motion "may be asserted at any time and need not be responsive to any pleading of other party").

A Rule 12(b)(1) motion to dismiss may take the form of a facial attack on the complaint's allegations, or, as here, it may challenge the facts on which subject matter jurisdiction depends. Holt v. United States, 46 F.3d 1000, 1002-1003 (10th Cir. 1995). As the Tenth Circuit stated in Holt:

When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1003.

When the resolution of the jurisdictional question is "intertwined with the merits of the case," however, a court is required to convert a Rule 12(b)(1) motion into a Rule 12(b)(6) motion or a Rule 56 motion for summary judgment. Id.

Here, the Court converts Defendant's motion into one for summary judgment under Rule 56 because the submissions of both parties, which include numerous pieces of evidence obtained in discovery, go beyond what is normally considered in deciding a motion to dismiss. See Lowe v. Town of Fairland, Okl., 143 F.3d 1378, 1381 (10th Cir. 1998).

Thus, this Court reviews Defendant's motion under Federal Rule of Civil Procedure 56. Under that Rule, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(a). Further, "[i]n deciding whether summary judgment is appropriate, the Court construes all facts and reasonable inferences drawn from the record in the light most favorable to the nonmoving party." Entek GRB, LLC v. Stull Ranches, LLC, 937 F. Supp. 2d 1328, 1332 (D. Colo. 2013).


By enacting the FTCA, Congress "consented to suits against the United States for certain torts committed by federal employees while acting within the scope of their employment." Woodruff v. Covington, 389 F.3d 1117, 1125 (10th Cir. 2004). At the same time, 28 U.S.C. § 2401(b) dictates that "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues . . . ."

Resolving the disagreement between the parties on this motion requires determining whether there is a genuine dispute that Plaintiff "presented" his claims within two years of when they accrued, such that the claims are not barred under 28 U.S.C. § 2401(b).

As an initial matter, there is no dispute about the date the claim was "presented" for purposes of 28 U.S.C. § 2401(b). It is well established that presentment occurs when the federal agency receives the claim. See, e.g., Anderberg v. United States, 718 F.2d 976, 977 (10th Cir. 1983). Further, the parties agree—as does the Court—that presentment occurred for purposes of Plaintiff's claims on February 15, 2011, when the BOP received Plaintiff's SF-95.

The parties do dispute, however, whether the claim accrued within two years of presentment: in other words, there is a dispute whether the claim accrued on or after February 15, 2009. Further, determining the date of accrual is a more complicated matter in a medical malpractice case. As to this question, in United States v. Kubrick, 444 U.S. 111 (1979), the Supreme Court reasoned that "the general rule under the [Federal Tort Claims] Act has been that a tort claim accrues at the time of the plaintiff's injury." Id. at 120. At the same time, "the [Kubrick] Court found an exception in medical malpractice and latent injury cases, adopting therein the 'discovery rule.'" Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1267 (10th Cir. 2002).

As the Tenth Circuit has reasoned, "the discovery rule, which holds a claim does not accrue until the injured party knows of both the existence and cause of the injury, is followed to protect plaintiffs who are blamelessly unaware of their claim because the injury has not yet manifested itself or because the facts establishing a causal linkbetween the injury and the medical malpractice are...

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