                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         February 26, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 ALEX COLEMAN,

       Plaintiff - Appellant,

 v.                                                          No. 19-1162
                                                   (D.C. No. 1:18-CV-01965-KMT)
 UNITED STATES OF AMERICA,                                    (D. Colo.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Alex Coleman, a federal prisoner appearing pro se, sued the United States

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. He

alleged that Bureau of Prisons medical staff negligently failed to provide him with

medical care. The district court dismissed his suit because he failed to file a

certificate of review supporting his claim. Exercising jurisdiction under 28 U.S.C.

§ 1291, we vacate the district court’s decision and remand.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                  I. BACKGROUND

      Mr. Coleman alleged the following: When serving his sentence at the Federal

Correctional Institution in Englewood, Colorado (“FCI Englewood”), he experienced

dizziness, shortness of breath, vomiting, loss of consciousness, and other symptoms

over the course of a day. He sought medical attention, but the nurse who responded

failed to evaluate or treat him. When his symptoms persisted, Mr. Coleman sought

medical care a second time, but a doctor returned him to his cell without evaluation.

Mr. Coleman then suffered a seizure, which prompted his transport to an outside

hospital. Doctors there determined he had blood clots in each leg and in his chest.

He nearly died due to the prison medical providers’ lack of care.1

      Mr. Coleman sued the United States under the FTCA, seeking damages for the

prison medical providers’ alleged negligence in failing to evaluate and treat him. The

government moved to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(6) because he had not filed a certificate of review under Colo. Rev.

Stat. § 13-20-602. In response, Mr. Coleman asked the district court to appoint

counsel or to send him the certificate forms because he was unfamiliar with a

certificate of review and did not have access to legal resources. The court denied his

request for counsel and informed him that it did not have a certificate form, which is

“a requirement of Colorado, and not federal, law.” ROA at 87.


      1
         In his appellate brief, Mr. Coleman further alleges that the prison medical
providers’ lack of care caused him to suffer a pulmonary embolism and other
injuries, his injuries continue to this day, and he is housed at a prison medical facility
in Texas. Aplt. Opening Br. at 5, 6, 11.
                                            2
       After two months passed without further response from Mr. Coleman, the

district court dismissed his action with prejudice under Rule 12(b)(6). It also denied

his motion for reconsideration and request to proceed in forma pauperis (ifp) on

appeal. He timely appealed and renewed his request to proceed ifp.

                                     II. DISCUSSION

                             A. Colo. Rev. Stat. § 13-20-602

       Colorado’s certificate statute, Colo. Rev. Stat. § 13-20-602, provides that

              “[i]n every action for damages . . . 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 named
              as a party . . . within sixty days after the service of the
              complaint . . . unless the court determines that a longer period
              is necessary for good cause shown.”

Id. § 13-20-602(1)(a). The certificate must declare that the plaintiff’s attorney (or the

pro se plaintiff) “has consulted a person who has expertise in the area of the alleged

negligent conduct” and that the person consulted “has reviewed the known facts . . . and,

based on the review of such facts, has concluded that the filing of the claim . . . does not

lack substantial justification.” Id. § 13-20-602(3)(a).2

       If the plaintiff fails to file a certificate, the defendant licensed professional “may

move the court for an order requiring filing of such a certificate,” but only if the



       2
         Colorado’s certificate statute applies equally to both represented and pro se
parties. See Hill, 393 F.3d at 1118; Yadon v. Southward, 64 P.3d 909, 912 (Colo. App.
2002) (holding pro se non-attorney plaintiffs are not exempt from certificate
requirements).

                                               3
defendant “believes that an expert is necessary to prove the claim of professional

negligence.” Id. § 13-20-602(2). If the court determines a certificate is required, the

plaintiff must file a certificate or show good cause for not doing so. Otherwise, the

complaint must be dismissed. See id. § 13-20-602(4); Shelton v. Penrose/St. Francis

Healthcare Sys., 984 P.2d 623, 626 & n.4 (Colo. 1999).

                     B. The FTCA and Colo. Rev. Stat. § 13-20-602

       The initial question is whether Colo. Rev. Stat. § 13-20-602 applies to

Mr. Coleman’s FTCA claim.3 He asserts it does not. But the FTCA provides that the

United States can be liable only “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). Thus, the substantive law

of the state in which the alleged tort occurred applies to FTCA claims. See Hill v.

SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th Cir. 2004).

       The medical providers’ alleged negligence occurred in Colorado. In Hill, we held

that Colorado’s certificate statute is a substantive rule for purposes of the FTCA and is


       3
         Mr. Coleman argues the medical providers violated his Eighth Amendment
rights by their deliberate indifference to his serious medical needs. But he did not
sue these providers for an alleged constitutional violation, see Carlson v. Green,
446 U.S. 14, 17-23 (1980) (holding a plaintiff can bring a claim for money damages
against individual federal officers for an Eighth Amendment violation under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)).
Instead, he sued the United States for damages under the FTCA. See ROA at 58-59,
63. As the district court explained, the FTCA allows state tort law claims to be
asserted against the United States, not constitutional claims. See id. at 54 (citing
28 U.S.C. § 1346(b)(1)). See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994)
(explaining that the FTCA did not waive the United States’ sovereign immunity from
suit for federal constitutional claims).
                                             4
applicable to professional negligence claims brought against the United States. Id. Colo.

Rev. Stat. § 13-20-602 is therefore applicable to Mr. Coleman’s action. But, as explained

below, the district court’s dismissal of the complaint was premature.

                                    C. Issues for Remand

       The Colorado certificate statute’s applicability to Mr. Coleman’s FTCA claim

raises three significant issues that should have been addressed in the district court. We

thus vacate the order dismissing Mr. Coleman’s FTCA claim and remand for the district

court to address these issues.4

1. Whether a Certificate Was Required

       The government and the district court appeared to understand Colorado law as

requiring a certificate of review in every professional negligence action and that dismissal

is required whenever a plaintiff fails to file one. See ROA at 74 (government’s motion to

dismiss); id. at 83 (district court holding that “because Plaintiff has failed to file a

certificate of review, his Amended Complaint must be dismissed”). But Colorado courts

have long held that Colo. Rev. Stat. § 13-20-602 requires a plaintiff to file a certificate of

review only “for any claim based on allegations of professional negligence that requires

expert testimony to establish a prima facie case.” Martinez v. Badis, 842 P.2d 245, 250

(Colo. 1992) (emphasis added); accord Shelton, 984 P.2d at 626; Giron v. Koktavy,



       4
         We deny Mr. Coleman’s request that we direct reassignment to a different
judge on remand. He has not presented evidence of “personal bias” or “extreme
circumstances” to justify this action. See Mitchell v. Maynard, 80 F.3d 1433, 1448
(10th Cir. 1996). A judge’s adverse ruling, standing alone, does not establish bias.
See id. at 1449.
                                               5
124 P.3d 821, 825 (Colo. App. 2005).5 Thus, “[i]f a plaintiff determines that expert

testimony is not required, no certificate need be filed.” Martinez, 842 P.2d at 250-51; see

Shelton, 984 P.2d at 626.

       If a certificate is not filed within the 60-day statutory period and the defendant

believes expert testimony will be required to establish the plaintiff’s professional

negligence claim, it may move to require the plaintiff to file a certificate or to dismiss.

See Colo. Rev. Stat. §§ 13-20-602(2), 13-20-602(4); Martinez, 842 P.2d at 251; Shelton,

984 P.2d at 626. The court determines whether expert testimony and therefore a

certificate of review are required. See Shelton, 984 P.2d at 626; Giron, 124 P.3d at 825.

       Dismissal for failure to file a certificate of review is proper only when the court

has determined that a certificate is required under these standards. See Shelton, 984 P.2d

at 626 n.4 (holding dismissal under § 13-20-602(4) applies only “to situations in which

the court decides that the plaintiff should have submitted a certificate and the plaintiff has

not demonstrated good cause for late filing”); Giron, 124 P.3d at 825 (“[F]ailure to file


       5
          In Hill, 393 F.3d at 1118, and Trierweiler v. Croxton & Trench Holding
Corp., 90 F.3d 1523, 1537-38 & n.9 (10th Cir. 1996), we upheld dismissal for failure
to file a certificate under Colo. Rev. Stat. § 13-20-602. Both opinions suggested the
plaintiff’s need for expert evidence. See Hill, 393 F.3d at 1115 (noting plaintiff’s
“need for expert testimony”); Trierweiler, 90 F.3d at 1542 (discussing plaintiff’s
expert reports). Although not precedential, our unpublished decisions have
recognized this standard. See, e.g., Sherman v. Klenke, 653 F. App’x 580, 594-95
(10th Cir. 2016); Falcon v. Saint-Veltri, 23 F. App’x 908, 910 (10th Cir. 2001). So
has the United States District Court in Colorado, see, e.g., Morales v. Rattan, No. 17-
cv-03009-PAB-KLM, 2019 WL 588192, at *4 (D. Colo. Feb. 13, 2019),
recommendation accepted (Mar. 5, 2019); Kellar v. U.S. Dep’t of Veteran Affairs,
No. 08-cv-00761-WYD-KLM, 2008 WL 5330644, at *4 (D. Colo. Dec. 19,
2008). See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may
be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
                                              6
a certificate of review, where required, must result in dismissal of the claim.”

(emphasis added)); Morales v. Rattan, No. 17-cv-03009-PAB-KLM, 2019 WL

588192, at *4 (D. Colo. Feb. 13, 2019) (noting that dismissal is required for failure to

comply with Colorado’s certificate statute “if a certificate is deemed necessary”),

recommendation accepted (Mar. 5, 2019).

       Although expert testimony may be necessary in most medical malpractice claims,

it is not always required to establish a prima facie case. In Shelton, the Colorado

Supreme Court affirmed the state district court’s decision not to require a certificate in a

medical malpractice action. It explained that expert testimony is usually required “to

establish the proper standard of care against which the professional’s conduct is to be

measured,” but some claims do not require expert testimony. 984 P.2d at 627; see

Martinez, 842 P.2d at 249 (“Some claims of professional negligence do not require expert

testimony.”); Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo. App. 1995) (noting that

expert testimony is not required when “the subject matter of a medical malpractice action

lies within the ambit of common knowledge or experience of ordinary persons”).

       In this case, the government did not argue in district court that expert testimony

was required for Mr. Coleman to establish a prima facie case of medical negligence, and

the court did not decide this issue. Without determining that a certificate of review was

required due to the need for an expert, the district court lacked a proper basis to dismiss

the claim for failure to file a certificate. On remand, the district court should consider

this issue under the proper standard.



                                              7
2. Whether Dismissal, if Required, Should Be with or without Prejudice

        The district court did not explain why it dismissed Mr. Coleman’s complaint with

prejudice. As the government noted in its answer brief, courts that have dismissed

FTCA claims for failure to comply with a state certificate requirement usually have

done so without prejudice. See, e.g., Aplee. Br. at 11-12 (citing cases).6 The

government suggests the district court should have considered whether dismissal

should be with or without prejudice under the Ehrenhaus factors. See Aplee. Br.

at 12 (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162

(10th Cir. 2007)); see also Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.

1992). These are the factors a district court must consider in deciding whether to

dismiss a case with prejudice under Fed. R. Civ. P. 41(b) as a sanction for a

plaintiff’s violation of a court rule or order. See Nasious, 492 F.3d at 1161-62 &

n.4.7

        The Colorado federal district court has considered these factors in dismissing

claims for failure to comply with Colorado’s certificate statute. It has held such




        6
        Colo. Rev. Stat. § 13-20-602 does not specify whether dismissal should be
with or without prejudice when a plaintiff is required to file a certificate of review
but does not do so. See id. § 13-20-602(4).
        7
         These factors are: “(1) the degree of actual prejudice to the defendant [as a
result of the plaintiff’s rule violation]; (2) the amount of interference with the judicial
process; (3) the culpability of the litigant; (4) whether the court warned the party in
advance that dismissal of the action would be a likely sanction for noncompliance; and
(5) the efficacy of lesser sanctions.” Nasious, 492 F.3d at 1162 (internal quotation marks
omitted).

                                             8
dismissals should be without prejudice unless (1) the failure to file a required

certificate of review was the result of willful misconduct or gross negligence or

(2) caused substantial prejudice. See Alpine Bank v. Hubbell, No. 05-cv-00026-

EWN-PAC, 2007 WL 218906, at *4-6 (D. Colo. Jan. 26, 2007) (holding that

dismissal for failure to comply with Colorado’s certificate statute should be without

prejudice absent these circumstances); Carson v. United States, No. 13-cv-02962-

CMA-KLM, 2014 WL 3563021, at *8 (D. Colo. July 18, 2014) (dismissing without

prejudice under this standard); Morales, 2019 WL 588192, at *6 (same).

       If the district court determines on remand that expert testimony is necessary to

establish Mr. Coleman’s professional negligence claim and that dismissal is required

under the statute due to his failure to file the required certificate, it should consider

whether dismissal should be with or without prejudice.

3. Whether Dismissal, if Required, Should Be under the Colorado Statute or
   Rule 12(b)(6)

       The government moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to

state a claim. The district court said it dismissed Mr. Coleman’s complaint under this

rule. But rather than analyze the sufficiency of Mr. Coleman’s allegations,8 the court

relied on Colo. Rev. Stat. § 13-20-602 to dismiss. See ROA at 82-83; id. at 90

(explaining “the basis for dismissal . . . was Plaintiff’s failure to file a certificate of



       8
         “[T]he purpose of Rule 12(b)(6) motions . . . is to test the sufficiency of the
allegations within the four corners of the complaint after taking those allegations as
true.” Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (internal quotation
marks omitted).
                                               9
review pursuant to Colo. Rev. Stat. § 13-20-602(1)(a)”). The Colorado Court of

Appeals has held that “Section 13-20-602 sets forth a special statutory ground for

dismissal, separate from that of C.R.C.P. 12(b)(5) ([dismissal for failure to state a

claim]).” Barton v. Law Offices of John W. McKendree, 126 P.3d 313, 314-15 (Colo.

App. 2005). Thus, dismissal under the certificate statute does not constitute

dismissal for failure to state a claim. See id. The federal district court in Colorado

has recognized and followed this holding. See Alpine Bank, 2007 WL 219121, at *4

& n.4 (holding dismissal for failure to file a certificate of review under Colorado law

is not “akin to dismissal under [Fed. R. Civ. P.] 12(b)(6)”); Alpine Bank, 2007 WL

218906, at *4 (same).

       The distinction between dismissal under the Colorado certificate statute and

dismissal for failure to state a claim under Rule 12(b)(6) matters because

Mr. Coleman can be assigned a strike under the Prison Litigation Reform Act if the

district court dismisses his action for failure to state a claim. See 28 U.S.C.

§ 1915(g).9 If the district court determines on remand that Mr. Coleman’s professional

negligence claim should be dismissed under Colo. Rev. Stat. § 13-20-602, it should

reconsider whether dismissal would be for failure to state a claim under Fed. R. Civ. P.

12(b)(6).




       9
        Three strikes under the PLRA bars persons from bringing a civil action ifp
unless they are “under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g).
                                            10
                                 III. CONCLUSION

      We vacate the district court’s dismissal order and remand for further consideration

consistent with this opinion. We grant Mr. Coleman’s request to proceed ifp on appeal.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                          11
