Gabriel v. Peak Vista Health Center, et al

Filing 75

ORDER. The Order granting Defendant's Motion to Dismiss 67 and the Judgment 68 are VACATED, pursuant to Fed. R. Civ. P. 60(b)(6). The court will allow Defendant up to and including April 26, 2016, to submit a supplemental brief, if necessary, in support of the converted motion to dismiss. Plaintiff may file a supplemental response no later than May 10, 2016. Plaintiff's motion 69 is DENIED in all other respects, by Magistrate Judge Kathleen M. Tafoya on 4/12/16.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–03022–KMT
VINCENT GABRIEL,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER

This matter is before the court on “Plaintiff’s (1) Motion to Reopen Case#: 14-cv-3022KMT, (2) to Stay Action as Ordered in the Doc#21 Pending HHS Determination and (3) to Seek
Relief from Dismissal Orders Pursuant to Eighth Amendment Rights of U.S.C. and
Fed.R.Bankr.P. 9024” (Doc. No. 69, filed October 5, 2015). Defendant filed its response on
October 13, 2015 (Doc. No. 70), and Plaintiff filed his reply on October 13, 2015 (Doc. No. 71).
On September 16, 2015, this court dismissed Plaintiff’s complaint for lack of subject
matter for his failure to exhaust his administrative remedies under the the Federal Tort Claims
Act (“FTCA”). (See Doc. No. 67.) Plaintiff now seeks to reopen his case in light of the
Supreme Court’s ruling in United States v. Wong, 135 S. Cut. 1625 (2015), which held that the
time limitations in § 2401(b) are non-jurisdictional and subject to equitable tolling. Id. at 1638.
That ruling necessarily called into question Tenth Circuit precedent “relating to the jurisdictional
status vel non of § 2401(b)’s time limitations.” See Barnes v. United States, 776 F.3d 1134, 1148

(10th Cir. 2015) (holding that “the district court properly dismissed [plaintiffs’] FTCA lawsuit on
jurisdictional grounds after correctly determining that the action was time-barred”).
When ruling on Defendant’s motion to dismiss, this court considered evidence. In light
of Wong, the proper procedural motion was not a Rule 12(b)(1) motion but rather a Rule 12(b)(6)
motion or a Rule 56(a) motion for summary judgment. Thus, the court will vacate its judgment
and reopen the case only to reconsider Defendant’s motion as one for summary judgment.
Therefore, it is
ORDERED that the Order granting Defendant’s Motion to Dismiss (Doc. No. 67) and
the Judgment (Doc. No. 68) are VACATED, pursuant to Fed. R. Civ. P. 60(b)(6). The court will
allow Defendant up to and including April 26, 2016, to submit a supplemental brief, if
necessary, in support of the converted motion to dismiss. Plaintiff may file a supplemental
response no later than May 10, 2016.
Plaintiff’s motion is DENIED in all other respects.
Dated this 12th day of April, 2016.

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