Weeks v. Barkman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Chief Judge Philip A. Brimmer

Civil Case No. 20-cv-00544-PAB-NYW

GEORGE LOWRY WEEKS,

Plaintiff,

v.

LIEUTENANT COMMANDER BARKMAN,

COMMANDER DYER, and

DR. OBA

Defendants.

_____________________________________________________________________

ORDER

_____________________________________________________________________

This matter is before the Court on the Recommendation of United States

Magistrate Judge Nina Y. Wang, filed on March 22, 2021 [Docket No. 71]. The

magistrate judge recommends granting defendants’ motions to dismiss [Docket Nos.

49, 51] plaintiff’s amended complaint.1 Docket No. 71 at 19-20. Plaintiff filed an

objection to the recommendation [Docket No. 73] and defendants filed a response to

the objection [Docket No. 74].2

I. BACKGROUND

The background facts are set forth in the magistrate judge’s recommendation,

Docket No. 71, and the Court adopts them for the purposes of ruling on plaintiff’s

1 The magistrate judge read Docket Nos. 13, 20, and 21 together as the

operative pleading in this case. Docket No. 71 at 2 n.2.

2 On May 3, 2021, plaintiff filed a motion seeking a ninety day extension of time

to file a reply to defendants’ response, Docket No. 75, which the Court granted. Docket

No. 78. Plaintiff’s reply was due August 2, 2021, id., but plaintiff has not filed a reply.

Accordingly, the objection is fully briefed.

objection. Plaintiff brings a single claim for deliberate indifference in violation of the

Eighth Amendment against defendants Barkman, Dyer, and Dr. Oba. See Docket No.

13 at 4-5. Specifically, plaintiff alleges that he has a compression fracture in his back

and that, since his arrival at FCI Englewood in Englewood, Colorado, defendants have

failed to properly treat his back condition and resulting pain. See id.

On October 26, 2020, defendants filed a motion to dismiss for failure to state a

claim upon which relief can be granted and arguing that they are entitled to qualified

immunity. Docket No. 49. On October 28, 2020, defendants Barkman and Dyer filed

an additional motion to dismiss arguing that the Court lacked subject matter jurisdiction

over them because they are immune from suit under 42 U.S.C. § 233(a). Docket No.

51 at 1. The magistrate judge recommends granting Barkman and Dyer’s motion to

dismiss for lack of subject matter jurisdiction and dismissing plaintiff’s claim against

them without prejudice. Docket No. 71 at 10. The magistrate judge additionally

recommends finding that plaintiff fails to state a claim against Dr. Oba, id. at 16, and

that Dr. Oba is entitled to qualified immunity. Id. at 18. Plaintiff makes two objections:

(1) defendants’ actions were not within the scope of their employment because they did

not comport with the standard of care, and therefore defendants are not entitled to

immunity; and (2) plaintiff’s injury was obvious, but defendants failed to treat it. Docket

No. 73 at 3-5.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege

enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .

plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts

do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged – but it has not shown – that the pleader is entitled to relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration

marks omitted). Thus, even though modern rules of pleading are somewhat forgiving,

“a complaint still must contain either direct or inferential allegations respecting all the

material elements necessary to sustain a recovery under some viable legal theory.”

Bryson, 534 F.3d at 1286 (alteration marks omitted).

A motion under Rule 12(b)(1) is a request for the court to dismiss a claim for lack

of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A plaintiff generally bears the

burden of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co.,

495 F.2d 906, 909 (10th Cir. 1974). When the court lacks subject matter jurisdiction

over a claim for relief, dismissal is proper under Rule 12(b)(1). See Jackson v. City &

Cnty. of Denver, No. 11-cv-02293-PAB-KLM, 2012 WL 4355556, at *1 (D. Colo. Sept.

24, 2012).

The Court will “determine de novo any part of the magistrate judge’s

[recommended] disposition that has been properly objected to.” Fed. R. Civ. P.

72(b)(3). An objection is proper if it is specific enough to enable the Court “to focus

attention on those issues – factual and legal – that are at the heart of the parties’

dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996).

Plaintiff filed a timely and specific objection to certain portions of the recommendation,

Docket No. 73; the Court will therefore conduct de novo review of those portions. In

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light of plaintiff’s pro se status, the Court reviews his filings liberally. See Haines v.

Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir.

1991).

III. ANALYSIS

A. Defendants Barkman and Dyer

The magistrate judge found that 42 U.S.C. § 233(a) grants Barkman and Dyer

immunity from suit regarding the performance of medical duties within the scope of their

employment. Docket No. 71 at 10. Plaintiff objects to this finding, arguing that because

Barkman and Dyer failed to follow the standard of care, they were not acting within the

scope of their employment.3 Docket No. 73 at 3-5. Barkman and Dyer are

commissioned officers with the Public Health Service (“PHS”). Docket No. 71 at 8; see

also Docket Nos. 51-1, 51-2. Plaintiff brings one claim against them pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), for violating his Eighth Amendment rights. Docket No. 13 at 3.

In Hui v. Castaneda, 559 U.S. 799, 806 (2010), the Supreme Court stated that

[42 U.S.C. §] 233(a) grants absolute immunity to PHS officers and

employees for actions arising out of the performance of medical or related

functions within the scope of their employment by barring all actions

against them for such conduct. By its terms, § 233(a) limits recovery for

such conduct to suits against the United States.

The Court held that “the immunity provided by § 233(a) precludes Bivens actions

against individual PHS officers or employees for harms arising out of conduct described

in that section.” Id. at 812. Plaintiff’s Bivens claim is thus barred so long as Barkman

3 Plaintiff does not object to the magistrate judge’s consideration of materials

outside the pleadings in resolving a factual Rule 12(b)(1) challenge to jurisdiction, and

the Court finds no clear error in this decision.

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and Dyer were acting within the scope of their employment. See id.

Plaintiff argues that Barkman and Dyer’s actions were not within the scope of

their employment because they did not follow the standard of care. Docket No. 73 at 3-

5. Plaintiff cites no caselaw to support this proposition, see id., and the Court rejects it

as contrary § 233(a). See Camerano v. United States, 196 F. Supp. 3d 172, 180 (D.

Mass. 2016) (finding court did not have jurisdiction over Bivens claim brought against

PHS employees when plaintiff alleged that defendants violated the standard of care).

Because Barkman and Dyer’s alleged action and inaction were related to plaintiff’s

medical care, the Court finds that they were acting within the scope of their

employment. See Hui, 559 U.S. at 811 (“[P]roof of scope is in most § 233(a) cases

established by a declaration affirming that the defendant was a PHS official during the

relevant time period.”); Pitts v. Fed. Bureau of Prisons, No. 20-cv-01422-RM-KLM, 2021

WL 849812, at *3 (D. Colo. Feb. 16, 2021) (finding that allegations arising from

performance of medical function were within the within the scope of employment of

PHS employee); Trap v. United States, 2016 WL 6609212, at *2 (C.D. Cal. Mar. 7,

2016) (finding allegations related to medical care PHS defendant did or did not provide

was within scope of employment). Accordingly, the Court will overrule plaintiff’s

objection and deny the claim against Dyer and Barkman without prejudice.

B. Defendant Oba

Plaintiff brings one claim against Dr. Oba for deliberate indifference to plaintiff’s

serious medical needs. Docket No. 13 at 4. The Eighth Amendment’s ban on cruel

and unusual punishment is violated if a defendant’s “deliberate indifference to serious

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medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.”

Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting Estelle v. Gamble, 429

U.S. 97, 104 (1976)). A claim for deliberate indifference has both an objective and a

subjective component. To satisfy the objective component, a prisoner must

demonstrate that his medical need is “objectively, sufficiently serious.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). To satisfy the

subjective component, a prisoner must demonstrate that the defendant acted with a

“sufficiently culpable state of mind.” Id. (quotation marks and citation omitted).

The magistrate judge recommends finding that Dr. Oba is entitled to qualified

immunity on this claim. Docket No. 71 at 18. Qualified immunity balances two

important interests – the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009). A court should resolve questions of qualified immunity at the earliest

possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).

However, a plaintiff facing a qualified immunity challenge does not have a heightened

pleading standard. Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).

Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified

immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show

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(assuming they are true) that the defendants plausibly violated their constitutional

rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins

v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)).

When a defendant raises the defense of qualified immunity, a “plaintiff carries a

two-part burden to show: (1) that the defendant’s actions violated a federal

constitutional or statutory right, and, if so, (2) that the right was clearly established at

the time of the defendant’s unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220

(10th Cir. 2017) (internal quotation marks omitted). Courts are “permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case.”

Pearson, 555 U.S. at 236.

The magistrate judge recommends finding that plaintiff failed both prongs of

qualified immunity. Docket No. 71 at 17-18. The magistrate judge found that plaintiff

failed to plead the subjective prong of deliberate indifference because plaintiff merely

pled disagreement with the course of Dr. Oba’s treatment. Id. at 14, 16. Thus, plaintiff

failed to state a cognizable constitutional claim against Dr. Oba. Id. at 16. Because the

magistrate judge found that plaintiff failed to state a claim against Dr. Oba, the

magistrate judge found that the first factor in qualified immunity – that defendant’s

action violated a constitutional right – was not satisfied. Id. at 17. However, the

magistrate judge went on to consider whether, if plaintiff had met this factor, the right

was clearly established. Id. The magistrate judge found that it was not. Id. at 17-18.

Plaintiff’s objection is focused on the magistrate judge’s first recommendation –

that plaintiff did not plead sufficient facts, taken as true, to find that Dr. Oba violated his

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constitutional rights. See Docket No. 73 at 3-5. Plaintiff did not object to the portion of

the recommendation finding that Dr. Oba did not violate plaintiff’s clearly established

rights. See id. The Court is cognizant that plaintiff is an unrepresented prisoner, and

has construed his filings liberally. See Haines, 404 U.S. at 520. However, the Court

cannot make arguments for plaintiff that he did not raise. See Gallagher v. Shelton,

587 F.3d 1063, 1067 (10th Cir. 2009) (“[O]ur role is not to act as [plaintiff’s] advocate.”);

Garret v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he

court cannot take on the responsibility of serving as the litigant’s attorney in

constructing arguments and searching the record.”). Plaintiff did not object to this

portion of the recommendation, and the Court finds “no clear error in the face of the

record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. Accordingly, the Court will

accept the magistrate judge’s recommendation that Dr. Oba is entitled to qualified

immunity because he did not violate clearly established law.4 See Medina v. Cram, 252

F.3d 1124, 1128 (10th Cir. 2001) (stating that if a plaintiff fails to satisfy either prong of

the qualified-immunity analysis, the court must grant the defendant qualified immunity).

Even if the Court were to conduct de novo review of this portion of the

recommendation, the Court would agree with the magistrate judge that Dr. Oba did not

violate clearly established law. “Ordinarily, for the law to be clearly established, there

4 Because the conclusion that Dr. Oba did not violate clearly established law is

sufficient to entitle Dr. Oba to qualified immunity in this suit, the Court need not decide

whether plaintiff alleged a constitutional violation. See Est. of Vallina v. Petrescu, 757

F. App’x 648, 651 n.1 (10th Cir. 2018) (unpublished) (“Because [defendant] asserted a

qualified immunity defense in her motion to dismiss, plaintiffs bore the burden to

demonstrate that both: (1) their factual allegations established a constitutional violation

and (2) that the right was clearly established at the time of the alleged misconduct.”).

Accordingly, the Court will overrule as moot the portion of plaintiff’s objection arguing

that he sufficiently alleged a constitutional violation.

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must be a Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the plaintiff

maintains.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (internal quotation

marks omitted). The law that must be clearly established should be particularized to the

facts of the case. See White v. Pauly, 137 S. Ct. 548, 552 (2017) (“Today, it is again

necessary to reiterate the longstanding principle that clearly established law should not

be defined at a high level of generality. As this Court explained decades ago, the

clearly established law must be particularized to the facts of the case.” (internal

quotations and citations omitted)). It is not the general right to be free from deliberate

indifference that must be clearly established, but the right to stronger pain medication

and additional treatment in a situation such as plaintiff’s. Plaintiff has not demonstrated

that this right was clearly established. See Cox v. Glanz, 800 F.3d 1231, 1245, 1247

(10th Cir. 2015) (merely asserting that the constitutional “right to adequate medical care

and to be free from deliberate indifference ha[d] been clearly established for decades,”

was insufficient to show law was clearly established); cf. Perkins v. Kan. Dep’t of Corr.,

165 F.3d 803, 811 (10th Cir. 1999) (“A negligent failure to provide adequate medical

care, even one constituting medical malpractice, does not give rise to a constitutional

violation.”).5 Accordingly, the Court will accept the portion of the recommendation

5 Plaintiff’s complaint also seeks injunctive relief, which the magistrate judge

recommends denying. See Docket No. 71 at 19. Plaintiff did not object to this portion

of the recommendation, and the Court finds “no clear error in the face of the record.”

Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has

concluded that this portion of the recommendation is a correct application of the facts

and the law.

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finding that Dr. Oba is entitled to qualified immunity and dismiss the claim against him.6

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED that the Recommendation of United States Magistrate Judge Nina Y.

Wang [Docket No. 71] is ACCEPTED. It is further

ORDERED that plaintiff’s Motion Objecting to the Recommendation of the United

States Magistrate Judge and I Wish to Appeal to the District Court [Docket No. 73] is

OVERRULED. It is further

ORDERED that Defendants’ Motion to Dismiss Claims Against Defendants

Barkman and Dyer [Docket No. 51] is GRANTED. It is further

ORDERED that Defendants’ Motion to Dismiss [Docket No. 49] is GRANTED IN

PART as to defendant Dr. Oba, and DENIED AS MOOT as to defendants Barkman and

Dyer in light of the dismissal of the claim against them for lack of subject matter

jurisdiction. It is further

ORDERED that the claim against defendants Barkman and Dyer is dismissed

without prejudice. It is further

ORDERED that the claim against Dr. Oba is dismissed with prejudice. It is

further

6 The magistrate judge did not recommend whether the dismissal of the claim

against Dr. Oba should be with or without prejudice. See Docket No. 71 at 18 n.9. The

Court will dismiss the claim against Dr. Oba with prejudice because he is entitled to

qualified immunity. See Clark, 625 F.3d at 692 (instructing the district court to grant

defendants’ motion to dismiss based on qualified immunity “with prejudice”); McCrary v.

Jones, 2015 WL 873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with

prejudice where defendant was entitled to qualified immunity).

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ORDERED that this case is closed.

DATED September 13, 2021.

BY THE COURT:

____________________________

PHILIP A. BRIMMER

Chief United States District Judge

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