Payne v. United States of America

Filing 88

REPORT AND RECOMMENDATIONS re 54 MOTION to Dismiss for Lack of Jurisdiction filed by United States of America and 77 Request to Waive Rule 26 Requirements filed by Ronald Payne Sr. by Magistrate Judge Jerry H. Ritter. Objections t o R&R due by 8/31/2020. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mlt)

Case 1:17-cv-00536-JCH-JHR Document 88 Filed 08/17/20 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RONALD T. PAYNE, SR.,
Plaintiff,
v.

CV 17-0536 JCH/JHR

UNITED STATES OF AMERICA,
Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before the Court on the United States of America’s Motion to Dismiss
[Doc. 54], filed November 14, 2018, and Mr. Payne’s “Certificate of Service – Request to Consider
Waiver of Federal Civic Court Rule 26(a)” [Doc. 77], filed November 4, 2019, which the Court
liberally construes 1 as a request by Mr. Payne to release him of his obligation to produce an expert
witness to support his claim for medical malpractice under New Mexico law. This case was
referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B), (b)(3), and Virginia Beach Federal Savings & Loan Association v. Wood, 901 F.2d
849 (10th Cir. 1990), to perform any legal analysis required to recommend to presiding District
Judge Herrera an ultimate disposition of the case. [See Doc. 53]. The Court, being familiar with
the history of this case and having carefully considered its duty to fairly apply the law, hereby

1

Mr. Payne is proceeding pro se in this matter. While the Court does not act as his advocate, it must liberally construe
his filings. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018), cert. denied, Requena v. Roberts, 139 S.
Ct. 800, 202 L. Ed. 2d 589 (2019); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant's
pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers….
We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the
plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements. At
the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the
pro se litigant.”).

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recommends that both Motions be denied. The Court further recommends that this matter be
referred for mandatory settlement proceedings with a United States Magistrate Judge as required
by this district’s Local Rules.
I.

BACKGROUND
Mr. Payne filed his Complaint for Medical Malpractice and Damages under the Federal

Tort Claims Act (“FTCA”) on May 9, 2017. [Doc. 1]. Factually, Mr. Payne alleged that he sought
care from Dr. Darra Kingsley at the Raymond G. Murphy VA Medical Center in Albuquerque,
New Mexico, because he was experiencing “symptoms of choledocolithiasis 2 and cholecystitis3
and had been referred to Dr. Kingsley, a general surgeon, to consult about a cholecystectomy.” 4
[Id., p. 2]. However, believing Mr. Payne’s symptoms to be the result of gastroesophageal reflux
disease, Dr. Kingsley referred Mr. Payne for ulcer testing rather than scheduling him for a
cholecystectomy. [Id.]. Unfortunately, Mr. Payne required “extensive emergency medical
treatment, including a complicated subtotal cholecystectomy[,]” shortly after his visit with Dr.
Kingsley. [Id.]. As a result, Mr. Payne sued the United States alleging that Dr. Kingsley
misdiagnosed and failed to treat his acute gallbladder disease resulting in “medical crisis which
necessitated extensive medical treatment and caused [him] significant suffering, distress and pain.”
[Id., p. 3].
The United States answered Mr. Payne’s Complaint on July 24, 2017. [Doc. 12]. Pertinent
here, it denied that Mr. Payne “was having symptoms of ‘choledecolithiasis and cholecystitis’” on

2

The presence of a gallstone in the common bile duct. “Choledocolithiasis." Medical Dictionary for the Health
Professions and Nursing. 2012. Farlex 8 Aug. 2020 <https://medicaldictionary.thefreedictionary.com/Choledocolithiasis>.
3

Inflammation of the gallbladder. "Cholecystitis." Medical Dictionary for the Health Professions and Nursing. 2012.
Farlex 8 Aug. 2020 <https://medical-dictionary.thefreedictionary.com/cholecystitis>.

4

Surgical removal of the gallbladder. "Cholecystectomy." Medical Dictionary for the Health Professions and Nursing.
2012. Farlex 8 Aug. 2020 <https://medical-dictionary.thefreedictionary.com/cholecystectomy>.

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the date in question. [Id., p. 2]. Instead, it affirmatively stated that Mr. Payne was referred to Dr.
Kingsley for “a general surgery consult request to evaluate [Mr. Payne] for gallbladder disease.”
[Id.]. The United States also admits that its employees, including Dr. Kingsley, had a duty to
possess and apply the knowledge and use the skill and care that are ordinarily used by reasonably
well-qualified and trained medical providers. [Compare Doc. 1, ¶ 14 with Doc. 12, ¶ 14]. However,
the United States asserts as an affirmative defense that its agents exercised due care at all times
and in all matters alleged in the Complaint and that no action or failure to act by one of its agents
proximately caused Mr. Payne’s damages. [Doc. 12, p. 3].
The parties filed their First Amended Joint Status Report and Provisional Discovery Plan
(“JSR”) on August 22, 2017. [Doc. 17]. In the JSR Mr. Payne clarified that he underwent
emergency surgery six (6) days after visiting with Dr. Kingsley, which revealed a gangrenous
gallbladder requiring a complicated subtotal cholecystectomy. [Id., p. 1]. After holding a Rule 16
Scheduling Conference, then-assigned Magistrate Judge Lynch entered an Order Setting Pretrial
Deadlines and Adopting the JSR on August 29, 2017. [Doc. 19 (“Scheduling Order”)]. The
Scheduling Order required Mr. Payne to disclose his expert witness(es) by January 2, 2018. The
United States’ expert disclosure was set for January 31, 2018, and discovery was set to close on
February 26, 2018. [Id.].
Mr. Payne missed his deadline to disclose his expert witness; however, he filed an
Unopposed Motion to Extend Discovery and Motion Deadlines on January 29, 2018, which was
granted by the undersigned on January 30, 2018. [See Docs. 29 (Motion), 30 (Order)]. This Order
extended the discovery and pretrial motions deadlines by 60 days, to April 26, 2018, and May 29,
2018, respectively. [See Doc. 30]. Meanwhile, the United States disclosed its expert to Mr. Payne
on January 31, 2018.

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Rather than attempt to meet the amended case management deadlines, Mr. Payne filed a
letter on February 20, 2018 seeking to dismiss his case without prejudice because of his inability
to obtain counsel or an expert witness. [See Doc. 34]. In response to Mr. Payne’s letter, thenpresiding Chief District Judge Armijo entered an Order staying the case until July 13, 2018, “to
allow Plaintiff additional time to seek counsel and find an expert witness.” [Doc. 39]. In other
words, Judge Armijo reset Mr. Payne’s expert disclosure deadline. [Id.]. Judge Armijo concluded
her Order by stating that the Court would set a status conference if Mr. Payne was unable to secure
counsel or an expert by July 13, 2018. [Id.].
July 13, 2018, came and went and the undersigned convened a status conference on
October 22, 2018, to determine how the case should proceed. [See Doc. 51]. The Court noted that
all pretrial deadlines had expired, even as extended by Judge Armijo’s Order; however, after Judge
Armijo assumed senior status, the case appeared to have languished. [Id.]. The case was soon
reassigned to presiding District Judge Herrera, who subsequently referred the matter to the
undersigned for proposed resolution. [See Doc. 53].
The United States filed its Motion to Dismiss on November 14, 2018. [Doc. 54]. The
Motion, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), argues that Mr. Payne
cannot establish a waiver of sovereign immunity under the Federal Tort Claims Act, placing this
Court’s subject matter jurisdiction in question. [Id., p. 1]. The United States explains that Mr.
Payne “is unable to make any credible showing of negligence in this matter” because “he has no
evidence of medical negligence. Moreover, Defendant’s expert reviewed the medical records and
pleadings and concluded that the medical providers and the VA Medical Center provided Plaintiff
with appropriate medical care[.]” [Id., p. 8].

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Mr. Payne was granted an extension to file his response to the United States’ Motion until
December 12, 2018. [Doc. 55]. However, rather than filing a response, Mr. Payne filed a Motion
for Postponement on December 7, 2018 due to family medical issues. [Doc. 56]. The undersigned
granted Mr. Payne’s Motion on January 31, 2019, after the United States declined to respond, and
stayed the case until May 1, 2019; Mr. Payne was directed to file his response to the Motion to
Dismiss no later than May 6, 2019. [Doc. 61]. Unfortunately, Mr. Payne’s personal circumstances
only worsened, and on April 3, 2019, he moved to extend the stay by an additional six (6) weeks.
[Doc. 62]. Mr. Payne’s request was granted, and the stay was extended until June 12, 2019. [Doc.
64].
Mr. Payne mailed a document liberally construed as a response to the United States’
Motion to Dismiss on June 8, 2019 (filed by the Clerk on June 17, 2019). [Doc. 66]. In this
document, Mr. Payne asked why this case has not been referred to a settlement conference, accused
the United States’ attorney of unethical conduct, sought an in-person hearing, 5 and asked the Court
to waive the formal procedure attendant to disclosures under Federal Rule of Civil Procedure 26,
specifically seeking to be released from the burden of producing expert testimony in support of his
malpractice claims as required by New Mexico precedent. [Id., pp. 2-8].
The United States filed a reply on July 1, 2019, [Doc. 71], completing the briefing on its
Motion. The upshot of the United States’ reply is that, despite his representations, Mr. Payne “has
failed to disclose an expert witness to assist in meeting his burden of proof and/or to rebut the
opinions rendered by defense expert, Mario Leyba, M.D.” [Id., p. 5]. The United States seeks
dismissal of Mr. Payne’s case with prejudice. [Id., p. 8].

5

The Court notes that, in this district, motions are decided on the briefs unless it determines oral argument would be
helpful. D.N.M.LR-Civ. 7.6(a). The Court does not find oral argument is necessary here, and so denies Mr. Payne’s
request for an in-person hearing.

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After carefully reviewing the record the undersigned declined to address the merits of the
United States’ Motion and entered Proposed Findings and a Recommended Disposition on July 9,
2019, which recommended that discovery be reopened to permit Mr. Payne an additional
opportunity to disclose an expert and obtain discovery. [See Doc. 72]. Before Judge Herrera could
adopt that recommendation, Mr. Payne’s son sent the Court a letter seeking an additional six (6)
week stay due to Mr. Payne’s injuries sustained during a fall. [Doc. 73]. After reviewing the
recommendation and this request, Judge Herrera adopted the undersigned’s recommendation and
set the following new case management deadlines: Mr. Payne’s expert disclosure due November
20, 2019; United States’ rebuttal expert disclosure due December 26, 2019; and discovery
termination set for January 13, 2020. [Doc. 75].
Instead of obtaining an expert or counsel, Mr. Payne filed a “Request to Consider Waiver
of Federal Civic Court Rule 26(a)” on November 4, 2019. [Doc. 77]. The United States responded
on November 18, 2019. [Doc. 78]. Mr. Payne did not reply, but filed a document seeking a status
update on his request on January 16, 2020. [Doc. 80]. As such, briefing on his Motion is complete.
Also pending is a “Certificate of Service” Mr. Payne filed on February 4, 2020, attaching
evidence he believes proves the United States’ liability and stating his interpretation of that
evidence. [Doc. 82]. The Court should not consider this evidence for several reasons, the most
pertinent of which is that Mr. Payne failed to confer with counsel for the United States before he
submitted it. See D.N.M.LR-Civ. 7.1(a). Mr. Payne also failed to comply with the Local Rules’
requirement that he cite appropriate authority in support of the legal positions he is advocating.
See D.N.M.LR-Civ. 7.3(a). Just as the Court cannot favor the United States because it is
represented by counsel, the Court will not fashion arguments for Mr. Payne or presume to know
his intent in filing this evidence on the docket. Moreover, as is explained next, the Court concludes

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that reference to Mr. Payne’s evidence is not necessary to recommend resolution of the United
States’ Motion in his favor.
II.

LEGAL STANDARDS
A. The Court should assume the truth of Mr. Payne’s allegations in his Complaint
when deciding the United States’ Motion to Dismiss and apply the plausibility
standard.
As noted, the United States’ Motion is labeled a “Motion to Dismiss” and exclusively cites

Federal Rule of Civil Procedure 12(b)(6), which permits dismissal of a plaintiff’s case for failure
to state a claim. [See generally Doc. 54]. When resolving motions brought under Rule 12(b)(6),
the Court accepts as true all well-pleaded factual allegations in the Complaint and views them in
the light most favorable to Mr. Payne, drawing all reasonable inferences in his favor. See Garling
v. United States Envtl. Prot. Agency, 849 F.3d 1289, 1292-1293 (10th Cir. 2017). In other words,
the Court may only dismiss a case for failure to state a claim under Rule 12(b)(6) where a
reasonable person could not plausibly conclude that the facts alleged could result in a finding of
liability. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).
However, in the body of its Motion the United States asserts that this Court lacks subject
matter jurisdiction over Mr. Payne’s case because he has failed to establish a waiver of sovereign
immunity (by failing to identify an expert witness to support his medical malpractice claim). [Doc.
54, p. 1]. 6 Accordingly, the Court must also consider whether the United States’ Motion should be

6

To establish this Court’s subject matter jurisdiction Mr. Payne must establish a waiver of sovereign immunity by the
United States. As summarized by the Tenth Circuit in Garling, 849 F.3d at 1294:
Sovereign immunity precludes federal court jurisdiction…. [and] “[t]he United States can be sued
only to the extent that it has waived its immunity….” Through 28 U.S.C. § 1346(b)(1), the FTCA
waives sovereign immunity for certain state law tort claims against the United States…. The FTCA
“is a limited waiver of sovereign immunity, making the Federal Government liable to the same

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granted under the standards applicable to Federal Rule of Civil Procedure 12(b)(1). See, e.g., De
Baca v. United States, 403 F. Supp. 3d 1098, 1113 (D.N.M. 2019) (Browning, J.) (discussing
standards applicable to Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction).
“Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the
sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the
actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173,
1180 (10th Cir. 2002) (citation omitted). “On a facial attack, a plaintiff is afforded safeguards
similar to those provided in opposing a Rule 12(b)(6) motion: the court must consider the
complaint's allegations to be true.” DeBaca, 403 F.Supp.3d at 1113 (citation omitted). On the other
hand, when challenging the actual facts upon which subject matter jurisdiction is based under Rule
12(b)(1) the movant may rely on evidence properly before the Court without altering the nature of
the motion. Id.
The United States does not address which Rule 12 standard it believes applies, but its
argument that Mr. Payne’s case should be dismissed because he has not identified an expert clearly
goes beyond the Complaint’s allegations, indicating a factual attack. Likewise, Mr. Payne’s

extent as a private party for certain torts of federal employees acting within the scope of their
employment….” Subject to the exceptions listed in § 2680, the FTCA permits:
civil actions on claims against the United States, for money damages ... for injury
or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). “State substantive law applies to suits brought against the United States
under the FTCA.”
Id. (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Orleans, 425 U.S. 807, 814 (1976); United
States v. Mitchell, 463 U.S. 206, 212 (1983); Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir.
2004)).

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responsive briefing asks the Court to permit him to proceed without an expert and purports to
challenge the United States’ expert’s conclusions through the submission of evidence.
Nonetheless, the Court concludes that it should assume the Complaint states the truth without
reference to the parties’ evidence (or lack of evidence) by virtue of the United States’ failure to
proffer affirmative evidence in support of its jurisdictional argument, or to properly invoke Federal
Rule of Civil Procedure 56. Garling, 849 F.3d at 1293 n.3 (“[W]hen a defendant asserts that [a]
FTCA complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court
must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged.”)
(quoted authority omitted).
The United States’ approach (which assumes that Mr. Payne cannot state a claim without
an expert) makes little sense at the pleading stage, before the Court has an opportunity to set an
expert disclosure deadline. In contrast, if the Court were deciding a motion for summary judgment
after the close of discovery Mr. Payne would be required to establish a prima facie case of medical
negligence via competent evidence. See Schmidt v. St. Joseph's Hosp., 1987-NMCA-046, ¶¶ 8-11,
105 N.M. 681, 684, 736 P.2d 135, 138 (“In any medical malpractice action, the plaintiff has the
burden of proving that: 1) the defendant owed him a duty recognized by law; 2) the defendant
failed to conform to the recognized standard of medical practice in the community; and, 3) the
actions complained of were the proximate cause of plaintiff's injuries.”); see also Gonzales v.
Carlos Cadena, D.P.M., P.C., 2010 WL 3997235, at *1 (N.M. Ct. App. Feb. 19, 2010)
(unpublished) (“Generally, an expert is required to establish both a deviation from the standard of
care and causation, and a defendant can make a prima facie case for summary judgment by
demonstrating that the plaintiff cannot establish the elements of malpractice without such an
expert.”). In other words, because the United States’ Motion relied exclusively on Rule 12, which

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traditionally focuses on whether Mr. Payne’s Complaint states a claim as a matter of law (assuming
its allegations to be true absent contrary evidence), the Court is precluded from assessing whether
Mr. Payne’s case has evidentiary support a matter of fact sufficient to dismiss under Rule 56.
Moreover, the Court is aware of no New Mexico appellate decision, or Tenth Circuit
decision applying New Mexico law, where an alleged medical malpractice case was dismissed at
the pleading stage for failure to state a claim because the plaintiff had not yet obtained an expert.
Instead, every relevant appellate decision the Court has encountered was decided either at
summary judgment (where no expert was offered to rebut a prima facie showing by the defendant)
or at trial (where the proffered expert testimony failed to meet the plaintiff’s burden of proof). See,
e.g., Holley v. Evangelical Lutheran Good Samaritan Soc., 588 F. App’x 792, 794 (10th Cir. 2014)
(unpublished) (Plaintiff failed to offer expert testimony of causation at summary judgment.);
Richter v. Presbyterian Healthcare Services, 2014-NMCA-056, ¶ 57, 326 P.3d 50, 64 (Affirming
directed verdict to doctor after plaintiff failed to elicit expert testimony supporting the standard of
care at trial.), cert. denied 326 P.3d 1111 (May 2, 2014); Gonzales, 2010 WL 3997235, at *2
(Plaintiff failed to proffer an expert at summary judgment to show defending podiatrist breached
the applicable standard of care or caused her injuries.); Diaz v. Feil, 1994-NMCA-108, ¶ 6, 118
N.M. 385, 388, 881 P.2d 745, 748 (Reversing summary judgment granted to a medical provider
premised on a bare denial of proximate cause because the provider failed to establish prima facie
entitlement to summary judgment.); Blauwkamp v. Univ. of New Mexico Hosp., 1992-NMCA-048,
¶ 19, 114 N.M. 228, 233, 836 P.2d 1249, 1254 (“Defendants in effect asked for summary judgment
because Plaintiffs lacked an expert witness.”); Schmidt v. St. Joseph's Hosp., 1987-NMCA-046, ¶
8, 105 N.M. 681, 683, 736 P.2d 135, 137 (Plaintiff failed to produce medical expert to rebut
defendants’ prima facie showing at summary judgment that they adhered to the recognized

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standards of medical practice and that their actions were not the proximate cause of the plaintiff’s
injuries.); Cervantes v. Forbis, 1964-NMSC-022, ¶ 12, 73 N.M. 445, 448, 389 P.2d 210, 213,
holding modified by Pharmaseal Laboratories, Inc. v. Goffe, 1977-NMSC-071, ¶ 12, 90 N.M. 753,
568 P.2d 589 (Plaintiff offered no expert testimony to establish negligence at summary judgment). 7
As the New Mexico Court of Appeals recognized in Tanuz v. Carlberg, 1996-NMCA-076,
¶ 13, 122 N.M. 113, 117, 921 P.2d 309, 313, certiorari denied (Jul 11, 1996), and the New Mexico
Supreme Court reiterated in Provencio v. Wenrich, 2011-NMSC-036, ¶ 15, 150 N.M. 457, 261
P.3d 1089, before the resolution of any factual matter in any negligence action (including one
premised on professional negligence) a trial court must frame the relevant law by identifying an
actionable duty of care and defining the nature and scope of that duty. Provencio, 2011-NMSC036, ¶ 16; Tanuz, 1996-NMCA-076, ¶ 13 (“In the absence of legislative directive, courts must
decide as a matter of policy whether or not to recognize a duty under a given circumstance.”). Put
another way, the existence of a legal duty, and whether a plaintiff has adequately pled a breach of
that duty proximately causing his injury under New Mexico law are questions of legal sufficiency
that can and should be resolved by the Court by reference to the pleadings alone, especially when
presented with a motion under Rule 12. In contrast, finding a breach of that duty and causation of
resulting harm are matters within the prerogative of the factfinder which, in medical malpractice

7

While the Court did locate one opinion from this district that dismissed a plaintiff’s New Mexico malpractice claim
pursuant to the Federal Tort Claims Act (“FTCA”) under Rule 12(b)(6) for failure to identify a medical expert, that
opinion itself recognized that to recover for medical malpractice under New Mexico law a plaintiff must “prove” that
the medical professional owed him a legal duty, breached that duty by failing to adhere to the recognized standard of
medical practice in the community, and that the breach was the proximate cause of his injuries. See Bruton v. United
States, CV 11-0330 WJ/KBM, 2014 WL 12479990 (D.N.M. 2014) (citing Provencio v. Wenrich, 2011-NMSC-036,
¶ 15, 150 N.M. 457, 261 P.3d 1089). Having carefully studied Bruton, the Court does not agree with its conclusion
that a plaintiff must have a medical expert’s opinion supporting his position to state a malpractice claim under New
Mexico law to plead a plausible claim under the FTCA. To require such a showing at the pleadings stage would force
New Mexico plaintiffs to clear a procedural hurdle that simply does not exist in state court. In contrast, if this case
was brought under Colorado law Mr. Payne would be required by state statute to produce a professional certification
that his claim has merit at the pleadings stage. See Coleman v. United States, 803 F. App’x 209, 211-213 (10th Cir.
2020) (unpublished). Because there is no similar requirement in New Mexico, the Court should not impose one here.

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cases brought in New Mexico, must be established through expert testimony at summary judgment
or trial. See Tanuz, 1996-NMCA-076, ¶ 14.
While the Court recognizes that it is permitted to convert the United States’ Motion to one
for summary judgment under Rule 56, it may only do so after notice to the parties and an
opportunity to present all material that is pertinent to the entry of judgment. See Fed. R. Civ. P.
12(d). Here, the United States made no request to convert its Motion under Rule 12(d) and the
Court cannot sua sponte grant the United States summary judgment under Rule 56 without
providing Mr. Payne with notice that he must meet this heightened standard and an opportunity to
respond with appropriate evidence. Mr. Payne was not on notice that he was defending against
summary judgment when he responded to the instant Motion, and even though he submitted
evidentiary materials after briefing was complete, the United States filed a formal Notice of
Objections to those materials – removing them from the Court’s purview. [See Doc. 82; Doc. 85].
Under these circumstances it would be procedurally unfair for the Court to grant the United States
summary judgment under a rule it neither raised nor properly applied to the facts of this case. See
D.N.M.LR-Civ. 7.1; see also Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994 (10th Cir.
2019) (Discussing a movant’s burden of persuasion at summary judgment which must be rebutted
by a showing by the nonmovant sufficient to establish the existence of each element of his claim.).
The United States is correct that Mr. Payne will most likely need an expert to survive summary
judgment and to proceed to trial, and it should file a motion citing the appropriate rule if it believes
summary judgment is warranted. However, in deciding the United States’ present Motion, the
Court should accept as true all well-pleaded factual allegations in the Complaint and view them in
the light most favorable to Mr. Payne, drawing all reasonable inferences in his favor. See Garling,
849 F.3d at 1292-1293.

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B. The Court should treat Mr. Payne the same as any other litigant.
Finally, in resolving Mr. Payne’s Motion seeking waiver of his disclosure requirements
under Federal Rule of Civil Procedure 26, the Court notes that pro se litigants “must comply with
the same rules of procedure as other litigants.” Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir.
2018), cert. denied, 139 S. Ct. 800, 202 L. Ed. 2d 589 (2019); Ogden v. San Juan County, 32 F.3d
452, 455 (10th Cir. 1994) (“While we of course liberally construe pro se pleadings, an appellant's
pro se status does not excuse the obligation of any litigant to comply with the fundamental
requirements of the Federal Rules of Civil and Appellate Procedure.”). The Court notes that it is
permitted to waive the Local Rules for this district “to avoid injustice,” but that the Federal Rules
of Civil Procedure contain no such provision. Compare D.N.M.LR-Civ. 1.7 with Fed. R. Civ. P. 1
(Stating that the Federal Rules govern proceedings in all civil actions in the United States district
courts and should be “construed, administered, and employed by the Court and the parties to secure
the just, speedy, and inexpensive determination of every action and proceeding.”). As such, the
Court should continue to apply the Federal Rules of Civil Procedure to this case.
III.

ANALYSIS
A. The Court concludes that Mr. Payne’s Complaint adequately states a claim for
medical malpractice under New Mexico law. Therefore, the United States’ Motion to
Dismiss under Rule 12 should be denied.
Mr. Payne’s factual averments are described above and will not be repeated. Suffice to say,

the Court finds that Mr. Payne has adequately stated a claim for medical malpractice by alleging:
(1) the existence of a legal duty by Dr. Kingsley to reasonably treat his acute gallbladder disease;
(2) the breach of that duty through misdiagnosis and failure to schedule Mr. Payne for emergency
surgery; and, (3) a plausible connection between Dr. Kingsley’s alleged failures and his resulting
injury (manifested by a complicated subtotal cholecystectomy shortly thereafter). See Schmidt,

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1987-NMCA-046, ¶¶ 8-11. While the Court agrees that Mr. Payne’s inability to procure an expert
will likely be fatal at summary judgment, as explained, the issue before the Court here is only
whether Mr. Payne has plausibly pled a claim, not whether he will ultimately succeed in proving
that claim. See Diaz v. Feil, 1994-NMCA-108, ¶ 6, 118 N.M. 385, 388, 881 P.2d 745, 748
(Reversing summary judgment granted to a medical provider premised on a bare denial of
proximate cause because the denial failed to establish prima facie entitlement to summary
judgment in the absence of affirmative evidence, and reasoning that the plaintiff adequately stated
a claim under New Mexico’s Rule 1-012(b)(6) if the allegations in the complaint were accepted as
true.). Therefore, because Mr. Payne’s FTCA Complaint states a plausible claim for medical
malpractice under New Mexico law, the United States’ Motion to Dismiss should be denied.
B. The Court should not waive Mr. Payne’s disclosure obligations under the Federal
Rules of Civil Procedure and New Mexico substantive law.
As noted, the Court is permitted to waive its own Local Rules “to avoid injustice,” see
D.N.M.LR-Civ. 1.7, but there is no similar provision in the Federal Rules. More importantly, there
is nothing unjust about requiring Mr. Payne to adhere to longstanding legal requirements under
New Mexico substantive law. The Court’s Local Rules “should be construed consistently with the
Federal Rules of Civil Procedure,” which plainly require Mr. Payne to support his claims with
admissible evidence at summary judgment or trial. See Fed. R. Civ. P. 52 (bench trials); Fed. R.
Civ. P. 56 (summary judgment) see, e.g. Arnett v. Webster, 658 F.3d 742, 760 (7th Cir. 2011)
(“Arnett's pro se status doesn't alleviate his burden on summary judgment.”). Thus, the Court finds
Mr. Payne’s Motion seeking such relief to be lacking in legal support, which precludes the Court
from granting the requested relief. See Fed. R. Civ. P. 7(b)(1)(B) (Requiring a request for a court
order to state with particularity the grounds supporting the relief requested.); see also D.N.M.LR-

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Civ. 7.3(a) (Requiring the citation of authority to support legal positions argued in briefing.). As
such, it too should be denied.
IV.

ADDITIONAL MATTERS
As was mentioned earlier, in responding to the United States’ Motion to Dismiss Mr. Payne

observed that this case has yet to be referred for a settlement conference before a United States
Magistrate Judge. The Court liberally construes Mr. Payne’s statements in this regard as a motion
under D.N.M.LR-Civ. 16.2(a), which states that every civil case (with exceptions not applicable
here) must proceed to a settlement conference before a Judge unless otherwise ordered. Given the
length of time this case has been pending, the Court believes that at least attempting settlement
will ensure Rule 1’s admonition that cases be resolved in an expedient, inexpensive, and just
manner is observed here. See Fed. R. Civ. P. 1.
V.

RECOMMENDATION
Wherefore, for the foregoing reasons, the Court hereby recommends that the United

States’ Motion to Dismiss [Doc. 54] and Mr. Payne’s Motion to Waive his obligations under Rule
26 and New Mexico malpractice law [Doc. 77] be denied. The Court further recommends that
this Case be referred to a United States Magistrate Judge to conduct a settlement conference as
required by D.N.M.LR-Civ. 16.2(a).

______________________________
Jerry H. Ritter
U.S. Magistrate Judge

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
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A party must file any objections with the Clerk of the District Court within the fourteenday period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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