United States District Court, W.D. Oklahoma
ORDER ADOPTING REPORT AND RECOMMENDATION
J. Cauthron United States District Judge.
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.
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. See generally Def. U.S.' Obj.
to R&R (Dkt. No. 60). In her R&R, the Magistrate
Judge did not resolve these issues- 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.
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 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.
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
(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
 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).
 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