Blake, Jr. v. USA

Filing 108

ORDER adopting in part 97 Report and Recommendations; granting in part and denying in part 65 Motion to Dismiss; granting 66 Motion for Partial Summary Judgment; granting 69 Motion for Extension of Time to File ; denying 76 Motion for Order; by Judge R. Brooke Jackson on 11/4/20.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 18-cv-00570-RBJ-SKC
ALPHONSO BLAKE, JR.
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER

This matter is before the Court on the August 14, 2020 recommendation of Magistrate
Judge S. Kato Crews, ECF No. 97. The recommendation addresses four motions: defendant’s
motion to dismiss (ECF No. 65), defendant’s motion for partial summary judgment (ECF No.
66), plaintiff’s motion seeking additional time to file a certificate of review (ECF No. 69), and
plaintiff’s motion for a certificate of review (ECF No. 76). Judge Crews recommends that I deny
plaintiff’s two motions, grant defendant’s motion for partial summary judgment, and partially
grant defendant’s motion to dismiss. ECF No. 97 at 2. The recommendation is incorporated
herein by reference. See 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b).
For the following reasons, I adopt the recommendation in part. I GRANT defendant’s
motion for partial summary judgment (ECF No. 66), and I GRANT in part and DENY in part
defendant’s motion to dismiss (ECF No. 65). I also GRANT plaintiff’s motion seeking

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additional time to file a certificate of review (ECF No. 69) and DENY plaintiff’s motion for a
certificate of review (ECF No. 76).
I. FACTUAL BACKGROUND
Judge Crews summarized the background of this case in his recommendation. ECF No.
97 at 1–2. I include his summary with some additional facts. Plaintiff Alphonso Blake Jr. is a
prisoner in the custody of the Federal Bureau of Prisons (“BOP”) who was previously housed at
the United States Penitentiary Administrative Maximum facility (“ADX”). Plaintiff is
proceeding pro se and brings claims under the Federal Tort Claims Act (“FTCA”). Defendant is
the United States of America.
Plaintiff alleges in his second amended complaint that he has been diagnosed with
borderline personality disorder, unspecified mood disorder, and anxiety disorder. ECF No. 64 at
7 ¶3. He has been prescribed several different antipsychotic medications to treat these disorders,
some of them at “very high doses.” Id. According to plaintiff, despite knowing of his diagnoses
the BOP failed to provide him with appropriate medical treatment and deprived him of his
medications. Id. at 3–4, 7–8. He contends the BOP intentionally inflicted emotional distress on
him when it placed him at ADX despite policies to the contrary; discontinued his medications;
took him off suicide watch; and subjected him to “use of force” and harmful disciplinary
procedures. Id. at 9–10. Plaintiff also claims the BOP retaliated against him for exercising his
First Amendment rights through the prison grievance system and the courts. Id. at 21–25.
Prior to this lawsuit, plaintiff filed six administrative tort claims with the BOP. ECF No.
66-1. Though they were included as an exhibit to defendant’s motion for summary judgment and
not plaintiff’s second amended complaint, they form the basis for some of Judge Crews’
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recommendations. As a result, I summarizes them here.
Plaintiff submitted his first administrative tort claim (TRT-NCR-2016-01410 or “20161”) on November 12, 2015, alleging he was taken off medication in retaliation for exercising his
First Amendment rights. The BOP denied that claim on April 7, 2016, and plaintiff’s deadline to
file suit over those allegations was October 7, 2016. ECF No. 66-1 at 9–10, 15. Plaintiff
submitted the second of these claims (TRT-NCR-2016-02290 or “2016-2”) on January 27, 2016,
alleging BOP psychiatrists prescribed him high doses of medication despite his risk for seizures.
The BOP denied that claim on August 18, 2016, making plaintiff’s deadline to file suit February
18, 2017. Id. at 17–18, 27. Plaintiff filed the third claim (TRT-NCR-2016-04882 or “2016-3”)
on June 10, 2016. It alleged the BOP placed him in unsanitary conditions, discontinued his
medications, and took him off suicide watch despite plaintiff’s still having razor blades in his
stomach. BOP denied the claim on September 27, 2016, and plaintiff’s deadline for filing suit
was March 27, 2017. Id. at 29–34, 39. Plaintiff filed his fourth administrative tort claim (TRTNCR-2016-05819 or “2016-4”) on August 9, 2016. He alleged that his placement at ADX was
contrary to BOP policies, and that BOP had manipulated his mental health records to keep him at
ADX. The BOP denied the claim on November 8, 2016, which made May 8, 2017 plaintiff’s
deadline to file suit. Id. at 41–49, 53.
On November 27, 2017 plaintiff filed a fifth administrative tort claim (TRT-NCR-201801708 or “2018-1”). That claim alleged the BOP failed to provide him with proper mental health
care and subjected him to unnecessary uses of force and discipline. On January 24, 2018 the
BOP denied that claim. Plaintiff’s deadline to file suit on those allegations was July 24, 2018.
Id. at 55–59, 63. Judge Crews and defendant both refer to this claim as the “Timely Tort”
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because plaintiff, pursuant to FTCA requirements, filed suit within six months of receiving the
BOP’s decision. ECF No. 97 at 4; ECF No. 100 at 5. Finally, plaintiff filed a sixth claim (TRTNCR-2019-01539 or “2019-1”) on November 29, 2018 that alleged defendant retaliated against
him for exercising his First Amendment rights and subjected him to cruel and unusual
punishment for exercising his right to seek mental health treatment. That claim was denied by
the BOP on February 22, 2019, making August 22, 2019 the deadline for plaintiff to file suit.
ECF No. 66-1 at 65–68, 72.
II. PROCEDURAL BACKGROUND
Judge Crews also summarized the procedural history of this case in his recommendation.
ECF No. 97 at 2–3. I again include his summary with some additional facts. On March 8, 2018
plaintiff filed this action against the United States of America under the FTCA. ECF No. 1. He
filed his first amended complaint on May 29, 2018. ECF No. 14. Due to an administrative
oversight, a U.S. Marshal did not serve the amended complaint on defendant until June 13, 2019.
ECF No. 41.
On July 5, 2019 plaintiff sought to further amend his amended complaint to add a
retaliation claim based on events that occurred in 2018, i.e. after he initially filed this case. ECF
No. 48. Defendant opposed the amendment, arguing that plaintiff failed to exhaust his
administrative remedies concerning the 2018 retaliation prior to bringing this action. ECF No.
51. Defendant also moved to dismiss plaintiff’s complaint on August 12, 2019. ECF No. 52.
That same day defendant filed a motion for partial summary judgment. ECF No. 53. On August
26, 2019 plaintiff filed a response to defendant’s motion for partial summary judgment as well as
a motion to appoint counsel. ECF Nos. 55, 56. Defendant responded to plaintiff’s motion to
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appoint counsel and replied to plaintiff’s response to its motion for partial summary judgment on
September 10, 2019. ECF Nos. 58, 59.
On October 10, 2019 the court allowed plaintiff’s further amendment, finding that
defendant’s arguments regarding exhaustion in ECF No. 56 were more efficiently addressed in a
summary judgment motion. ECF No. 61. Also on October 10, Judge Crews granted plaintiff’s
motion to appoint counsel. ECF No. 62. However, it does not appear from the docket that the
court ever found or appointed a volunteer lawyer for plaintiff.
The court docketed plaintiff’s second amended complaint on October 10, 2019. ECF No.
64. In his second amended complaint plaintiff brings three claims for relief under the FTCA: (1)
negligence; (2) intentional infliction of emotional distress (“IIED”); and (3) First Amendment
retaliation. Id. at 7–25. As characterized by defendant, the negligence and IIED claims contain
both “treatment-related” and “placement-related” sub-claims. ECF No. 65 at 4.
Defendant filed a revised motion to dismiss and motion for partial summary judgment on
October 24, 2019. ECF Nos. 65, 66. Plaintiff filed a motion for additional time to file a
certificate of review on December 6, 2019. ECF No. 69. Defendant responded on December 16,
2019, and plaintiff replied on January 6, 2020. ECF Nos. 72, 75. On January 6, 2020 plaintiff
filed a motion for a certificate of review. ECF No. 76. That same day plaintiff also responded to
defendant’s revised motion for partial summary judgment. ECF No. 77. Defendant replied on
January 21, 2020. ECF No. 79. Two days later defendant responded to plaintiff’s motion for a
certificate of review. ECF No. 80.
Judge Crews issued a recommendation on ECF Nos. 65, 66, 69, and 76 on August 14,
2020. ECF No. 97. Defendant filed its objections on August 28, 2020. ECF No. 100. The
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Court granted plaintiff two extensions of time to file objections with a final deadline of October
30, 2020. ECF Nos. 102, 105. Plaintiff did not file timely objections by the deadline.
III. STANDARDS OF REVIEW
A. Magistrate Judge recommendation
When a magistrate judge makes a recommendation on a dispositive motion, the district
court “must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” FED. R. CIV. P. 72(b)(3). An objection is sufficiently specific if it
“focus[es] the district court’s attention on the factual and legal issues that are truly in dispute.”
United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). In the absence of a timely
and specific objection, “the district court may review a magistrate’s report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted);
see also FED. R. CIV. P. 72(b) Advisory Committee’s note (“When no timely objection is filed,
the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.”). Legal theories raised for the first time in objections to a
magistrate judge’s recommendation are deemed waived. United States v. Garfinkle, 261 F.3d
1030, 1031 (10th Cir. 2001).
B. Motion to dismiss
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plausible claim is one that “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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While courts must accept well-pled allegations as true and construe them in the light most
favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely
conclusory statements are not entitled to this presumption. Iqbal, 556 U.S. at 678, 681.
So long as the plaintiff pleads sufficient factual allegations such that the right to relief
crosses “the line from conceivable to plausible,” she has met the threshold pleading standard.
Twombly, 550 U.S. at 556, 570. “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.” Sutton v.
Utah St. Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quoting Miller v. Glanz,
948 F.2d 1562, 1565 (10th Cir. 1991)).
C. Motion for summary judgment
A court may grant summary judgment if “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. P. 56(a). The
moving party has the burden to show that there is an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving
party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A
fact is material “if under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The Court will examine the factual record and make reasonable inferences in the light most

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favorable to the party opposing summary judgment. Concrete Works of Colo., Inc. v. City & Cty.
of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
D. Pro se litigants
Mr. Blake is proceeding pro se. When a case involves pro se litigants, courts will review
their “pleadings and other papers liberally and hold them to a less stringent standard than those
drafted by attorneys.” Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007).
Nevertheless, it is not “the proper function of the district court to assume the role of advocate for
the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A “broad reading”
of a pro se plaintiff’s pleadings “does not relieve the plaintiff of the burden of alleging sufficient
facts on which a recognized legal claim could be based.” Id. Pro se parties must “follow the
same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th
Cir. 1994) (internal quotation marks and citations omitted).
IV. ANALYSIS
A. Recommendations to which there are no objections
1. Defendant’s motion for partial summary judgment as to administrative tort
claims 2016-1, 2016-2, 2016-3, and 2016-4
On defendant’s motion for partial summary judgment (ECF No. 66) Judge Crews
recommended granting dismissal of plaintiff’s claims for negligence and IIED to the extent they
are based on actions also alleged in his first four administrative tort claims (2016-1, 2016-2,
2016-3, 2016-4). He agreed with defendant that those claims were untimely because plaintiff
failed to file suit within six months of a final decision from the agency (in this case the BOP).
Judge Crews also concluded that equitable tolling did not apply. ECF No. 97 at 3–8.
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Neither party objected to this recommendation. The Court has reviewed these findings
and finds no clear error. The Court thus accepts and adopts this recommendation. Defendant’s
motion for partial summary judgment is GRANTED with respect to the allegations reflected in
plaintiff’s administrative tort claims 2016-1, 2016-2, 2016-3, 2016-4. More specifically, the
Court DISMISSES plaintiff’s claims for negligence and IIED to the extent they are based on
allegations of the BOP placing plaintiff at ADX contrary to policy (ECF No. 64 at 9 ¶¶1–3),
manipulating his mental health records to continue his ADX placement (Id. at 7 ¶2), and taking
him off of suicide watch despite his having razor blades in his stomach (Id. at 10 ¶8).
2. Defendant’s motion for partial summary judgment as to administrative tort
claim 2019-1
Judge Crews addressed plaintiff’s retaliation claim separately in his recommendations.
See ECF No. 100 at 15–18. Defendant argued in its motion to dismiss that the retaliation claim
should be dismissed for failure to state a claim. ECF No. 65 at 12–14. Defendant also noted that
many of the events underlying the retaliation claim occurred after plaintiff filed his first
complaint in March 2018. ECF No. 66 at 11. Defendant urged the court to conclude that
plaintiff’s claim must be dismissed for lack of subject matter jurisdiction because it was not—
and indeed could not have been—exhausted by the time he filed suit. Id. at 12. Plaintiff,
however, argued in a motion to supplement that his retaliation claim could “relate back” to his
original complaint filing. ECF No. 48 at 3–4.
Judge Crews found the court lacked subject matter jurisdiction on a different basis. He
rejected defendant’s argument that plaintiff had not exhausted his retaliation claim. ECF No.
100 at 16 n.11. Judge Crews correctly concluded that defendant has not waived its sovereign
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immunity under the FTCA for constitutional tort claims such as this retaliation claim. Id. at 18
(citing F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994)). Further, Judge Crews found that even if
plaintiff had brought this claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), sovereign immunity would still bar the claim as against the
United States. Judge Crews thus recommended dismissing plaintiff’s retaliation claim without
prejudice.
Neither party filed objections to this recommendation. In my review of the
recommendation I found no clear error. I thus adopt and accept Judge Crews’ recommendation
on this claim. The Court DISMISSES plaintiff’s retaliation claim without prejudice.
3. Defendant’s motion to dismiss as to punitive damages, injunctive relief, and
declaratory judgment
Judge Crews recommended granting in part and denying in part defendant’s motion to
dismiss (ECF No. 65). Judge Crews also recommended dismissing plaintiff’s request for
punitive damages, injunctive relief, and declaratory judgment on the basis that such forms of
relief are not available under the FTCA. Id. at 18–19. There were no objections to these
recommendations. The Court thus accepts and adopts these recommendations. Plaintiff’s
requests for punitive damages, injunctive relief, and declaratory judgment are DISMISSED
without prejudice for lack of subject matter jurisdiction.
4. Plaintiff’s motion for additional time to file a certificate of review and
defendant’s motion to dismiss as to the negligence claim
Judge Crews recommended granting defendant’s motion to dismiss as to plaintiff’s
negligence claim because plaintiff failed to file a certificate of review. ECF No. 97 at 14. Judge
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Crews also recommended denying plaintiff’s motion for additional time to file a certificate of
review (ECF No. 69). Because the issues presented by the relevant parts of these two motions
are related, I address them together here. I note for clarity that some of the allegations
underlying plaintiff’s negligence claim do not survive due to untimeliness (see Part IV.A.1).
Thus, I only analyze plaintiff’s allegations that defendant discontinued or failed to provide
plaintiff’s medications. ECF No. 64 at 8 ¶5.
Under the FTCA, determining whether a defendant is substantively liable requires
analyzing the law of the jurisdiction in which the alleged negligence or wrongful act occurred.
Meyer, 510 U.S. at 478. The wrongful acts plaintiff alleges occurred at a federal prison in
Colorado. Under Colorado law a plaintiff seeking damages based on allegations of professional
negligence must file a “certificate of review” by a professional in the relevant field:
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 . . . within sixty days after
the service of the complaint, counterclaim, or cross claim 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). The sixty days begin to run from the date the complaint
first raising the predicate claim is served on the defendant. See e.g. Karara v. Czopek, 89 F.3d
850, 1996 WL 330260, at *1 (10th Cir. 1996).
The certificate of review is a technical requirement. It is not jurisdictional but an
affirmative defense that can be waived only by the defendant. Miller v. Rowtech, LLC, 3 P.3d
492, 494-95 (Colo. App. 2000). Certificates of review are required “only if (1) the plaintiff
brings a claim of alleged professional negligence against a licensed professional, and (2) expert
testimony is necessary to substantiate the claim.” Sherman v. Klenke, 653 F. App’x 580, 595
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(10th Cir. 2016) (citing COLO. REV. STAT. § 13-20-602(4)) (emphasis in original). This
requirement applies to professional negligence claims brought under the FTCA against the
United States, including failure to provide medical treatment. Coleman v. United States, 803 F.
App’x 209, 212 (10th Cir. 2020) (citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117
(10th Cir. 2004)).
Judge Crews agreed with defendant that the certificate of review requirement applied to
plaintiff’s negligence claim, and that plaintiff failed to file one. ECF No. 97 at 11–12. He
concluded that expert testimony was required because plaintiff’s claim “alleges a legal duty to
properly administer, document, and review medical notes concerning his medication regime.”
Id. Because this claim involves duties owed to plaintiff concerning his psychiatric disorder
treatment, Judge Crews reasoned, it involves the type of medical care or standard that requires
expert testimony. Williams v. Boyle, 72 P.3d 392, 397 (Colo. App. 2003); Armbruster v. Edgar,
731 P.2d 757 (Colo. App. 1986); Smith v. Curran, 472 P.2d 769, 770–71 (1970).
Defendant was served with plaintiff’s first amended complaint on June 12, 2019, so
plaintiff’s deadline for filing a certificate of review was August 12, 2019. Judge Crews noted it
was undisputed that plaintiff failed to file a certificate of review for this negligence claim. ECF
No. 97 at 12–13. I agree with Judge Crews’ analysis and find no clear error on this point.
The next issue is whether plaintiff’s failure to file a certificate of review can be excused
for good cause. Judge Crews noted plaintiff’s arguments that various prison conditions
prevented him from obtaining and filing a timely certificate of review. These included an
institution-wide lockdown between July 3 and October 30, 2019, limited access to the prison’s
law library, confiscation of his property, falsely filed incident reports against him, and an
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administrative transfer. ECF No. 69 at 13. Judge Crews agreed with defendant that plaintiff
failed to provide specific dates for some of these incidents, and that the two allegedly “bogus”
incident reports occurred after plaintiff’s deadline. Id. He also noted that plaintiff provided no
details on how the lockdown restrictions impacted his ability to file. Finally, Judge Crews
pointed to plaintiff’s filing of other documents with the Court during the period prior to the
certificate deadline. Id. at 13–14.
I disagree that plaintiff has failed to show good cause. As Judge Crews notes, defendant
first raised the issue of plaintiff’s failure to file a certificate of review on August 12, 2019—the
exact deadline by which plaintiff needed to file. ECF No. 97 at 12. Based on plaintiff’s prior
filings this Court finds it highly improbable that plaintiff knew he was required to file a
certificate of review prior to defendant’s motion. Without such knowledge it would have been
impossible for plaintiff to meet the filing deadline.
Even assuming plaintiff did understand or should have known about this requirement
prior to the deadline, he provided multiple plausible reasons why he could not file. Though
Judge Crews is correct that plaintiff did not respond to defendant’s motion to dismiss or
immediately seek an extension of his deadline to file the certificate of review, plaintiff did
address the issue. On August 19, 2019 plaintiff filed a response to defendant’s motion for partial
summary judgment and a motion to appoint counsel. ECF Nos. 55, 56. In the latter document
plaintiff explicitly mentioned the “deficiency” of failing to file a certificate of review as a reason
for which he was requesting appointment of counsel. ECF No. 56 at 1. He stated that he was
being denied access to the law library, his legal documents were being discarded, his legal mail
was not being mailed, and his personal property was being confiscated, which prevented him
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from writing. ECF No. 55 at 2.
With respect to the lockdown, plaintiff specified in his reply to defendant’s response that
he was denied law library access from July 3, 2019 through October 30, 2019, i.e. the exact dates
of the lockdown. ECF No. 75 at 1. It is reasonable to infer that plaintiff wanted access to the
law library in order to understand the requirements of a certificate of review, and how to obtain
one, or to rebut defendant’s argument that one was needed at all. I therefore disagree that
plaintiff failed to provide details on what restrictions were implemented during the lockdown or
how the lockdown prevented him from filing a certificate of review. ECF No. 97 at 13–14.
The fact that plaintiff prepared and filed other documents with the Court is inapposite to
whether he had the ability to file a certificate of review. A proper certificate requires retaining
an expert who has expertise in the area of alleged negligence and in this case is actually a
licensed physician. COLO. REV. STAT. §§ 13-20-602(3)(a)(I), 13-64-401. That expert must
review “the known facts” related to the claim including records, documents, and other materials
deemed relevant—a requirement which would necessitate plaintiff procuring relevant evidence
from the BOP and sending it to the retained expert. COLO. REV. STAT. § 13-20-602(3)(a)(II).
The documents plaintiff filed in the period preceding the certificate deadline largely just required
plaintiff to have access to pen, paper, and prior filings. Finding an expert, providing her with
relevant evidence, and convincing her to prepare a certificate of review is more complex, more
involved, and requires engagement with a party external to the prison. Plaintiff’s conditions of
confinement and the additional limitations he has mentioned are thus likely to be much more
prohibitive for a certificate of review than for his regular filings.
Finally, defendant notes that plaintiff has had plenty of time since its motion to dismiss to
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file a certificate of review. As just discussed, however, obtaining such a certificate is likely to be
particularly arduous for a prisoner. Further, defendant would have undoubtedly asked this court
to disregard the certificate for being untimely. It would not have been rational for plaintiff to
retain an expert and file such a certificate after the deadline without this Court’s leave to do so.
I find that plaintiff has shown good cause for failing to file a certificate of review on his
negligence claim. I therefore do not adopt or follow Judge Crews’ recommendation on this
point. I GRANT plaintiff’s motion for additional time to file a certificate of review (ECF No.
69). Plaintiff has sixty days from the date of this order to obtain and file a certificate of review
for the surviving allegations under his negligence claim. No additional time extension will be
granted by this Court for the filing of this certificate.
5. Plaintiff’s motion for certificate of review
In addition to his motion for additional time, plaintiff filed a motion for a certificate of
review. ECF No. 76. Judge Crews interpreted this as plaintiff asking this Court itself to issue
the certificate of review plaintiff needs. I agree with Judge Crews that the plain language of the
statute is clear: this Court cannot issue a certificate of review, only an expert in the area of
alleged negligence can do so. Judge Crews recommended denying plaintiff’s motion. Neither
party filed objections. The Court thus accepts and adopts that recommendation. Plaintiff’s
motion for a certificate of review (ECF No. 76) is DENIED.
B. Defendant’s first objection: Denial of motion to dismiss on plaintiff’s IIED claim
Defendant filed two objections in this case. Defendant’s first objection is limited to
Judge Crews’ recommendation that plaintiff “be permitted to proceed on the IIED claim insofar
as it involves allegations from the Timely Tort.” ECF No. 97 at 15; ECF No. 100 at 7.
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Defendant makes two arguments in support of its position that plaintiff’s IIED claim should be
dismissed. First, defendant argues that the IIED allegations are untimely or unexhausted. ECF
No. 100 at 7. Second, defendant argues that this claim is actually a negligence claim in
substance and thus fails based on plaintiff’s failure to file a certificate of review. Id. at 9. I
address each argument in turn, reviewing Judge Crews’ findings de novo. FED. R. CIV. P.
72(b)(3). For the reasons discussed below I OVERRULE defendant’s first objection.
1. Whether plaintiff’s IIED allegations are untimely or unexhausted
Judge Crews recommended that plaintiff be permitted to proceed on his IIED claim to the
extent it involves allegations from the “Timely Tort” (2018-1). ECF No. 97 at 15. He
recommended denying defendant’s motion to dismiss on this part of plaintiff’s claim.
In response defendant argues that paragraphs 1–9 of the IIED claim in the second
amended complaint were raised in his first, third, and fourth administrative tort claims (2016-1,
2016-3, and 2016-4). Because plaintiff failed to timely file suit after the BOP denied those
claims, defendant asserts, any allegations reflected in those claims are untimely and thus cannot
go forward. Defendant also asserts that plaintiff’s last allegation regarding the April 14, 2017
use of force incident was not alleged in any of his admin tort claims and is thus administratively
unexhausted. ECF No. 100 at 7.
Upon reviewing the second amended complaint, I find two sets of allegations reflected in
the “Timely Tort” that could go forward under plaintiff’s IIED claim. The first is defendant’s
alleged discontinuation of plaintiff’s medications. ECF No. 64 at 10 ¶6. The second is an
alleged use of force against plaintiff on April 14, 2017 in which correctional officers sprayed
plaintiff with gas, put him in restraints, and kept him in an isolation unit for three days. Id. at 10
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¶9. I address each in turn.
In his recommendation Judge Crews addressed only the first subset of allegations—the
discontinuation of plaintiff’s antipsychotic medication. In ruling on the IIED claim he focused
on plaintiff’s allegation that defendant “intentionally deprived Plaintiff of his antipsychotic
medications to further contribute to his mental health conditions and cause him physical and
emotional distress.” Id. at 14. Defendant asserts that plaintiff did not raise the alleged
discontinuation of plaintiff’s antipsychotic medications in his Timely Tort. ECF No. 100 at 8.
Instead, defendant contends, plaintiff raised his allegations of discontinuation of medication in
his first and third administrative tort Claims (2016-1 and 2016-3). Id. If that is the case, then
plaintiff did not timely file suit on these allegations and they cannot proceed.
This Court is not persuaded by defendant’s argument. The Timely Tort does reflect the
allegations about medications that plaintiff raises in his second amended complaint. The
language of that administrative tort claim refers to plaintiff’s failure to receive proper medical
treatment. Purposeful discontinuation of plaintiff’s required medications falls within the ambit
of a failure to provide adequate treatment for plaintiff’s mental illness.
Defendant’s argument rests on the assumption—which it concludes without much
explanation—that the alleged instances of discontinuation in plaintiff’s second amended
complaint must be the same as those in the first and third administrative tort claims (2016-1,
2016-3). This is not necessarily the case. Plaintiff reports being placed on a wide variety of antipsychotic medications, including Sinequon, Prozac, Rispirdon, Wellbutrin, Abilify, Ziprasidon,
and Cogentin. ECF No. 64 at 7 ¶3. He references being taken off medications on many
occasions as part of an ongoing denial of mental health treatment that he contends continues
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through his second amended complaint. See e.g. ECF No. 64 at 3 ¶8, 10 ¶6; ECF No. 1 at 3 ¶8;
ECF No. 5 at 7 ¶5; ECF No. 14 at 4 ¶12 (alleging that while he was on Rispirdone he was still
not receiving all proper medication). It is equally reasonable to assume that plaintiff’s references
to medication discontinuations in 2017—more than a year after the first and third administrative
tort claims—encompass different incidents. I agree with Judge Crews that this part of plaintiff’s
IIED claim should proceed.
Judge Crews does not appear to address the second subset of allegations—the alleged use
of force and isolation on April 14, 2017—in his recommendation. Defendant argues that
plaintiff never raised this allegation in any of his administrative tort claims, and that he thus
failed to exhaust it. ECF No. 100 at 9. I disagree. In his “Timely Tort” plaintiff explicitly refers
to “unnecessary uses of force.” ECF No. 66-1 at 58. A review of plaintiff’s administrative tort
claims and other filings reveals that he never alleged a use of force incident prior to the April 14,
2017 incident. See e.g. ECF No. 66-1; ECF Nos. 1, 5, 9, 14, 23, 26, 28, 29, 48, 55, 60, and 64.
The Timely Tort was filed in November 2017, a few months after the alleged use of force
incident and almost a year prior to plaintiff’s use of force allegations from 2018 and 2019. See
e.g. ECF No. 31. It stands to reason that the “uses of force” referenced in that administrative tort
claim encompassed the April 2017 use of force and placement in isolation that plaintiff alleges in
his second amended claim. I thus reject defendant’s contention that plaintiff failed to exhaust
administrative remedies as to the excessive force allegation.
2. Whether plaintiff’s IIED claim requires filing a certificate of review
Defendant next objects to plaintiff’s IIED claim on the basis that it required a certificate
of review. As discussed above, a plaintiff must file a certificate of review in a negligence claim
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where expert testimony is required to establish a prima facie case of negligence. COLO. REV.
STAT. § 13-20-602(1)(a). Judge Crews concluded that though a certificate of review “applies to
all claims ‘based upon’ alleged professional negligence [and not] only to ‘negligence claims,’”
Martinez v. Badis, 842 P.2d 245, 251 (Colo.1992), an IIED claim does not fall under the
umbrella of claims requiring the certificate. ECF No. 97 at 14. Judge Crews reasoned that
negligence is inapposite to IIED claims because IIED claims are intentional and thus do not
require proof of professional negligence. Id. (citing Martinez, 842 P.2d at 251; Clifton v.
Eubank, No. 00-cv-02555-JLK, 2006 WL 3746694, at *9 (D. Colo. Dec. 18, 2006).
To support its objection defendant argues that plaintiff’s IIED claim is actually not an
IIED claim at all—it is a negligence claim. Defendant rightly notes that courts must determine
the nature of a claim by its substance, not its label. Johnson v. Dep’t of Veterans Affairs, 351 F.
App’x 288, 290 (10th Cir. 2009) (citing Weaver v. United States, 98 F.3d 518, 520 (10th Cir.
1996)). Defendant points to the Timely Tort’s general language that defendant was “negligent in
giving [him] proper mental health treatment.” ECF No. 66-1 at 56; ECF No. 100 at 10.
Defendant also focuses on the Timely Tort’s mention of prior litigation in which plaintiff sought
damages based on “negligent factors” of improper treatment of mentally ill inmates. ECF No.
100 at 10. Defendant argues that the language of plaintiff’s allegations sound in professional
negligence, and therefore this claim requires filing a certificate of review under COLO. REV.
STAT. § 13-20-602. I do not agree.
The Court must consider the Timely Tort to the extent it is relevant to the administrative
exhaustion or timeliness of plaintiff’s claims—an analysis I have already done above in Part
IV.B.1. The Court’s role here is to determine if plaintiff has pled sufficient facts for his IIED
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claim to overcome a motion to dismiss. That analysis must focus on the allegations in plaintiff’s
second amended complaint, not in the Timely Tort. Defendant impliedly asks the Court to do the
opposite. That approach, however, would effectively negate the need for FTCA plaintiffs to file
complaints in federal suits at all, much less seek leave to amend them. I find that plaintiff has
sufficiently alleged an IIED claim in his second amended complaint.
To establish an IIED claim a plaintiff must demonstrate that (1) the defendant engaged in
extreme and outrageous conduct; (2) the defendant engaged in such conduct recklessly or with
the intent of causing the plaintiff severe emotional distress; and (3) the plaintiff suffered severe
emotional distress which was caused by the defendant’s conduct. Culpepper v. Pearl Street
Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994) (citations omitted). Conduct that meets the first
element “goes ‘beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly
intolerable in a civilized community.’” Riske v. King Soopers, 366 F.3d 1085, 1089 (10th Cir.
2004) (quoting Rugg v. McCarty, 476 P.2d 753, 756 (1970)). “The outrageous character of the
conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to
emotional distress by reason of some physical or mental condition or peculiarity.” Zalnis v.
Thoroughbred Datsun Car Co., 645 P.2d 292, 294 (Colo. App. 1982) (citation omitted).
“Although the question of whether conduct is outrageous is generally one of fact to be
determined by a jury, it is first the responsibility of a court to determine whether reasonable
persons could differ on the question.” Culpepper, 877 P.2d at 883 (citations omitted).
Plaintiff pleads sufficient facts in his second amended complaint to overcome a motion to
dismiss on his IIED claim as to discontinuation of his medications. He alleges that BOP staff
discontinued his medications in order to minimize the appearance of his mental illness and in
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order to continue housing him at ADX Florence. ECF No. 64 at 10. He also alleges defendant
took these actions in order to cause plaintiff physical and emotional distress. Id. He reports
mental breakdowns and “mental episodes” partly as a result of discontinuation of his medication.
Id. Construing his pleadings liberally, plaintiff contends that defendant knew of plaintiff’s
mental health diagnosis, was aware plaintiff needed to be on antipsychotics, and intentionally
prevented him from taking necessary medications in order to cause him distress and to downplay
his mental illness. Id. at 3, 10. Plaintiff also alleges severe emotional distress in the form of
mental-illness-induced breakdowns that went uncontrolled due to defendant’s alleged failure to
properly medicate him. Id. at 7, 10.
On the extreme and outrageous conduct element, defendant claims that “[a]ny surviving
allegations based on the Timely Tort do not involve any specific conduct that could plausibly be
regarded” to fit that standard. ECF No. 100 at 12. Again, I disagree. Plaintiff is alleging that
defendant discontinued his medications not because of informed, patient-centered medical
judgment, but to manipulate how his mental health impacted his status at ADX and to cause him
to suffer. Courts applying Colorado law have considered refusal to render necessary medical
care outrageous. See e.g. Romero v. DR or NP Travis, No. 18-CV-02575-RM-NRN, 2019 WL
8750268, at *7 (D. Colo. Sept. 16, 2019), report and recommendation adopted sub nom. Romero
v. Travis, No. 1:18-CV-02575-RM-NRN, 2020 WL 1130071 (D. Colo. Mar. 9, 2020); DeCicco
v. Trinidad Area Health Ass’n, 573 P.2d 559, 562 (Colo. App. 1977). Purposefully stopping a
patient’s medical treatment for non-medical reasons—and in fact against a patient’s medical
interests—could be considered “atrocious” and “intolerable” by a jury. Riske, 366 F.3d at 1089.
Plaintiff also pleads sufficient facts to overcome a motion to dismiss on his IIED claim as
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to the alleged use of force and isolation on April 14, 2017. He alleges that correctional officers
gassed him, physically restrained him, and then isolated in a remote cell for three days. ECF No.
64 at 10 ¶9. There is no indication in the second amended complaint that plaintiff’s own
behavior prompted the use of force and isolation—in fact, it is unclear why force was used at all.
Plaintiff’s allegations, if true, amount to BOP staff intentionally assaulting him multiple times
and placing him in unwarranted segregation. This court has held that assault can constitute
sufficiently outrageous or extreme conduct to underpin an IIED claim. See e.g. Rhoden v. City of
Lakewood, Colo., No. 11-CV-01734-PAB-BNB, 2013 WL 878680, at *8 (D. Colo. Mar. 8,
2013), order clarified sub nom. Rhoden v. O’Hayre, No. 11-CV-01734-PAB-BNB, 2013 WL
1442584 (D. Colo. Apr. 9, 2013). A jury could consider outrageous the conduct that plaintiff
was subjected to here.
On a motion to dismiss the Court is obliged to take plaintiff’s allegations as true. The
Court is also obliged to construe plaintiff’s pleadings liberally based on his pro se status. This of
course does not guarantee that plaintiff will ultimately prevail on his IIED claim. Defendant will
have the opportunity to produce evidence to rebut plaintiff’s allegations. But that opportunity
will present itself during discovery and in a subsequent motion for summary judgment, not here.
Though it is a close call, at this stage the balance tips in favor of permitting plaintiff’s claim to
progress. The Court thus DENIES defendant’s motion to dismiss plaintiff’s IIED claim as to
allegations that (1) defendant discontinued or denied him his medications and (2) defendant used
force against him on April 14, 2017 and placed him in an isolation unit for three days.

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C. Defendant’s second objection: Placement claims are barred by the discretionary
function exception
Defendant’s second objection is that Judge Crews failed to address defendant’s argument
that placement-related claims fall under the FTCA’s discretionary function exception. ECF No.
100 at 12. Judge Crews recommended these placement claims be dismissed because they were
raised in the four administrative tort claims after which plaintiff failed to timely file suit. ECF
No. 97 at 8; see also ECF No. 66-1. Defendant contends that instead of dismissing these claims
for being untimely under the FTCA, Judge Crews should have dismissed them for lack of subject
matter jurisdiction under FED. R. CIV. P. 12(b)(1). Id.
Defendant is correct that in order to reach the issue of timeliness under the FTCA, a court
must first have subject matter jurisdiction. Garling v. United States Envt’l. Prot. Agency, 849
F.3d 1289, 1293 (10th Cir. 2017). Under the FTCA’s discretionary function exception, the
United States’ immunity is not waived for claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or
an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. §
2680(a). To determine if agency conduct falls under the exception, courts determine first
whether the conduct was discretionary and second whether it required an exercise of judgment
based on public policy considerations. Garling, 849 F.3d at 1295 (citations omitted).
The Tenth Circuit has stated that
‘. . . .in a number of cases involving the discretionary function exception to the FTCA, []
the determination of whether the FTCA excepts the government’s actions from its waiver
of sovereign immunity involves both jurisdictional and merits issues. . . . Accordingly,
[such a] case should [be] decided on summary judgment rather than as a 12(b)(1) motion
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to dismiss.’
Clark v. United States, 695 F. App’x 378, 382 n.2 (10th Cir. 2017) (quoting Pringle v. United
States, 208 F.3d 1220, 1223 (10th Cir. 2000)) (internal citations omitted). However, a court may
appropriately decide on the discretionary function exception at the motion to dismiss stage
“where specific factual disputes identified by plaintiffs [are] immaterial to applicability of
discretionary function exception, and where, even drawing all inferences in plaintiffs’ favor,
[the] discretionary function exception applie[s].” Id. (citing Lopez v. United States, 376 F.3d
1055, 1061 (10th Cir. 2004)).
Defendant cites to various cases from other circuits and this court to support its position
that plaintiff’s placement at ADX Florence falls squarely within the discretionary function
exception. Upon review of these cases I do not agree that defendant’s conclusion is inevitable.
Defendant points to three decisions from this court applying the discretionary function
exception in a prison context. Brown involved an inmate’s placement in psychological treatment
in a Special Management Unit (“SMU”). Review of the SMU program statement revealed that
SMU placement was not mandated by BOP policy but was at the discretion of prison officials.
Brown v. Fed. Bureau of Prisons, No. 11-CV-03191-WYD-BNB, 2014 WL 321214, at *1–2 (D.
Colo. Jan. 29, 2014). In Saleh the court found the discretionary function exception applied to an
inmate’s placement in a transitional unit as part of ADX Florence’s “Step-Down” program.
Saleh v. United States, No. 09-CV-02563-PAB-KLM, 2011 WL 2682728, at *2 (D. Colo. July 8,
2011). The court noted that admission to the program and unit were not mandatory but
determined by eligibility, required approval by a committee, and considered an inmate’s
readiness to move to a less restrictive environment. Id.
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Finally, in Threadgill an inmate sued the BOP in negligence for placing him in a prison
that was known to be hostile to sex offenders and in which plaintiff was assaulted. Threadgill v.
United States, No. 11-CV-00094-REB-KMT, 2011 WL 7429424, at *1 (D. Colo. Dec. 1, 2011),
report and recommendation adopted, No. 11-CV-00094-REB-KMT, 2012 WL 638793 (D. Colo.
Feb. 28, 2012). The exception applied because the statute plaintiff cited (18 U.S.C. § 4801)
granted prison officials substantial discretion to weigh various placement factors. Id. at *4.
The cases defendant cites from this court are persuasive but not dispositive. None of
them involve a plaintiff contending that the BOP violated an express policy against placing
seriously mentally ill inmates at a particular institution. Plaintiff alleges violation of a policy that
is more constraining than the policies or statutes at issue in these cases.
Defendant next cites to decisions from other circuit courts of appeals. Two cases
defendant relies on, Cohen and Muick, rest on the discretionary nature of federal statutes setting
out BOP obligations. In Cohen the Eleventh Circuit also found that BOP decisions involving
placement of prisoners in specific institutions fell under the discretionary function exception.
Cohen v. United States, 151 F.3d 1338, 1341–42 (11th Cir. 1998). According to that circuit, 18
U.S.C. § 4042—which requires BOP to provide for prisoner care, safekeeping, and protection—
does not impose a non-discretionary duty of care. Id. In Muick the Eighth Circuit held that an
inmate’s FTCA claim arising from his placement in a specific housing unit and subsequent
prisoner-on-prisoner attack was barred by the exception because he “based the claim on staffing,
classification and placement of inmates, and responses to inmate fights.” Muick v. Reno, 83 F.
App’x 851, 853 (8th Cir. 2003) (citations omitted). By contrast, here plaintiff’s allegations
appear to rest on a BOP policy regarding the placement of inmates with mental illness, not the
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broader language of BOP statutes. ECF No. 64 at 3.
The other two circuit cases, Morales and Enlow, are similarly distinguishable on the
facts. In Morales the Fifth Circuit held that the discretionary function exception applied to an
inmate’s transfer to a new Federal Correction Institute and placement in general population with
other prisoners from whom he was at risk of attack. Morales v. United States, 371 F. App’x 528
(5th Cir. 2010). The court reasoned that Morales had failed to produce evidence of a “a
mandatory policy precluding placement discretion.” Id. at 533. In Enlow the Eleventh Circuit
affirmed the district court’s holding that the discretionary function exception applied to the
BOP’s decision to transfer an inmate out of special housing without first reviewing his file.
Enlow v. United States, 161 F. App’x 837, 839 (11th Cir. 2006). The court of appeals based its
decision on the district court’s correctly finding that “the plain language of the internal prison
policy does not mandate a review of the prison files.” Id. at 840. Here, by contrast, plaintiff
alleges that the BOP violated its own placement policy that specifically relates to mental illness,
not based on a review of inmate files or consideration of inmate safety vis-à-vis other prisoners.
Most importantly, in nearly all of these decisions the discretionary function exception
was applied at the summary judgment stage, not the motion to dismiss stage. While the courts in
Threadgill and Saleh applied the exception on a motion to dismiss, the courts in Brown, Cohen,
Muick, Morales, and Enlow only made that call on motions for summary judgment after
considering evidence by both parties. Unlike in Saleh and Threadgill, it is not as clear here that
the policy at issue is discretionary. Application of the discretionary function exception in
plaintiff’s case thus necessarily turns on resolution of material factual issues. Furthermore, the
exception does not apply automatically even if all inferences are drawn in plaintiff’s favor. This
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is a case in which resolution of the issue involves both jurisdictional and merits issues. It is best
resolved at the summary judgment stage. Pringle, 208 F.3d at 1223.
The Court finds that dismissing plaintiff’s placement-related claims under FED. R. CIV. P.
12(b)(1) pursuant to the discretionary function exception would be premature at this stage of
litigation. Defendant’s second objection is thus OVERRULED. Judge Crews had subject matter
jurisdiction to reach the issue of timeliness on these claims, as does this Court. However, as
discussed above, the Court has accepted and adopted Judge Crews’ recommendation to dismiss
these claims as untimely. These claims are therefore nonetheless DISMISSED.
ORDER
1. Judge Crews’ recommendation, ECF No. 97, is ADOPTED in part.
2. Defendant’s objections in ECF No. 100 are OVERRULED.
3. Defendant’s motion for partial summary judgment, ECF No. 66, is GRANTED.
Plaintiff’s claims for negligence and IIED in ECF No. 64 are DISMISSED with
prejudice to the extent they are based off allegations reflected in his administrative
tort claims 2016-1, 2016-2, 2016-3, and 2016-4 (those allegations are: defendant
placing plaintiff at ADX, manipulating his mental health records to continue his ADX
placement, and taking him off of suicide watch with razor blades still in his stomach).
4. Defendant’s motion to dismiss, ECF No. 65, is GRANTED as to plaintiff’s claims for
retaliation, punitive damages, injunctive relief, and declaratory judgment. These
claims are DISMISSED without prejudice.
5. Defendant’s motion to dismiss, ECF No. 65, is DENIED as to plaintiff’s claims for
negligence and IIED to the extent they are based off allegations reflected in
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administrative tort claim 2018-1 (the “Timely Tort”). Plaintiff’s claim for negligence
based on alleged discontinuation or failure to provide medications may proceed,
pending a filing of a certificate of review. Plaintiff’s claim for IIED based on (1)
alleged discontinuation of or failure to provide medications and (2) alleged used of
force and isolation on April 14, 2017 may proceed.
6. Plaintiff’s motion for additional time to file a certificate of review, ECF No. 69, is
GRANTED. Plaintiff has sixty days from the date of this order to file a proper
certificate of review.
7. Plaintiff’s motion for a certificate of review, ECF. No. 76, is DENIED.
DATED this 4th day of November, 2020.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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