Atwood v. United States of America et al

Filing 62

ORDER ADOPTING REPORT AND RECOMMENDATION granting in part and denying in part 29 Defendants United States and BOP's Motion to Dismiss; and denying 30 Defendants Zeavin and Russell's Motion to Dismiss. Signed by Honorable Robin J. Cauthron on 4/8/19. A copy of this order was mailed to: David Aaron Smith-Garcia TUCSON-USP P O Box 24550 Tucson, AZ 85734 (wh).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAVID GARLAND ATWOOD,
Plaintiff,
vs.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Case Number CIV-17-629-C

ORDER ADOPTING REPORT AND RECOMMENDATION
On March 1, 2019, United States Magistrate Judge Suzanne Mitchell issued her
Report and Recommendation (“R&R”) in this action in which Plaintiff seeks relief from
Defendants (1) United States of America, (2) Bureau of Prisons (“BOP”), (3) Spencer
Zeavin, and (4) Aaron Russell due to their allegedly negligent and/or unconstitutional
conduct in addressing his medical needs. Judge Mitchell recommended that some claims
be dismissed, while others should be allowed to proceed. Defendants’ objections to the
R&R were timely filed, and the Court reviews the matter de novo.
The United States takes issue with the Magistrate Judge’s refusal to dismiss the
Federal Tort Claims Act (“FTCA”) claims against it because those claims, in its view, are
time-barred, and Plaintiff is not entitled to equitable tolling.1 See generally Def. U.S.’ Obj.
to R&R (Dkt. No. 60). In her R&R, the Magistrate Judge did not resolve these issues—

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The Magistrate Judge also concluded that the United States’ exhaustion of
administrative remedies argument under the Prison Litigation Reform Act (“PLRA”)
required more factual development. (Dkt. No. 58, p. 8.) The United States points out,
however, that it only raised exhaustion arguments under the FTCA, not the PLRA. See
Defs.’ Mot. To Dismiss (Dkt. No. 29, p.p. 6-9); see also Def. U.S.’ Obj. to R&R (Dkt. No.
60, p. 6).

she instead determined that further factual development was necessary. (Dkt. No. 58, p.
8.) She did so because the United States was relying on materials outside of the pleadings
to support its motion, thus leading her to conclude that Plaintiff should be afforded “a
reasonable opportunity to respond with evidentiary materials pursuant to Fed. R. Civ. P.
12(d).” (Id.) Notably, in its objection to the R&R, the United States largely pressed the
same issues it had already previously raised before the Magistrate Judge. See generally
Def. U.S.’ Obj. to R&R (Dkt. No. 60.) As a result, the United States did not point out any
particular reason why Plaintiff should not be afforded a reasonable opportunity to respond
with his own materials outside the pleadings, particularly considering that he is requesting
access to at least some of these materials from the United States. See Pl.’s Mot. for Court
Order (Dkt. No. 56); see also R&R (Dkt. No. 58, p. 2, n.1). Therefore, the Court adopts the
R&R’s finding that Plaintiff’s FTCA claims against the United States should not be
dismissed.2
The only other objection raised by any Defendant is the objection of the non-moving
Defendants Paul David Hunter and Keith Frederick Clark. These Defendants maintain that

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In its objection, the United States offers extensive argument regarding its
entitlement to summary judgment. (Dkt. No. 60, p. 2-5.) But the Court reads the R&R as
holding off on any summary judgment determination—at least until Plaintiff has had an
opportunity to respond with materials outside the pleadings. (Dkt. No. 58, p. 8.) See also
Fed. R. Civ. P. 12(d) (Courts must convert motions to dismiss to summary judgment where
“matters outside the pleading are presented to and not excluded by the court,” and “[a]ll
parties are given reasonable opportunity to present all material made pertinent to such a
motion by Rule 56.”). Given that Plaintiff has not had an opportunity to respond with
materials outside the pleadings, the Court interprets the R&R as only offering
recommendations on 12(b)(6) grounds. Thus, these arguments are misplaced, but may be
revisited later.
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they should not be bound by any factual determinations made by the Magistrate Judge. See
generally Obj. of Defs. Paul David Hunter, M.D. and Keith Frederick Clark, M.D. to Mag.
R&R (Dkt. No. 59.) The R&R, however, resolved a motion to dismiss—all facts in
Plaintiff’s complaint are assumed to be true at this stage. See Hunt v. Central Consol. Sch.
Dist., 951 F. Supp. 2d 1136, 1174 (D.N.M. 2013). Defendants Hunter and Clark will have
the opportunity to develop the record as the case progresses.
No further objections to the R&R were submitted. Thus, after a review of the court
file and considering all matters de novo, this Court adopts the Report and Recommendation
in its entirety. Accordingly, the Court finds that the Bivens claim against the United States
and the BOP, as well as the FTCA claims against BOP and any individual Defendants,
should be dismissed with prejudice. The Court further finds that all official capacity claims
against the individual Defendants must be dismissed. Finally, the Court finds that the
FTCA claims against the United States, in addition to the Bivens claims against Defendants
Zeavin and Russell in their individual capacities, should not be dismissed.
Accordingly, (1) Defendants United States and BOP’s Motion to Dismiss (Dkt. No.
29) is GRANTED in part and DENIED in part, and (2) Defendants Zeavin and Russell’s
Motion to Dismiss (Dkt. No. 30) is DENIED. This matter is referred back to the Magistrate
Judge for further proceedings and record development.
IT IS SO ORDERED this 8th day of April, 2019.

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