UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ALEX COLEMAN, 

 Plaintiff - Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Defendant - Appellee. 

No. 20-1403 

(D.C. No. 1:18-CV-01965-KMT) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, BRISCOE and BACHARACH, Circuit Judges. 

_________________________________ 

Alex Coleman, a federal inmate proceeding pro se,1

 appeals the district court’s 

dismissal of his claims alleging medical negligence in violation of the Federal Tort 

Claims Act (FTCA), 28 U.S.C. § 1346(b) and §§ 2671–80. Exercising jurisdiction 

under 28 U.S.C. § 1291, we affirm. 

* 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 This order and judgment is not binding precedent, 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. 

1

 Because Mr. Coleman proceeds pro se, we construe his arguments liberally, 

but we “cannot take on the responsibility of serving as [his] attorney in constructing 

arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 

425 F.3d 836, 840 (10th Cir. 2005). 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 8, 2021

Christopher M. Wolpert 

Clerk of Court
2 

BACKGROUND 

During the incident that gave rise to his lawsuit, Mr. Coleman was 

incarcerated at the Federal Correctional Institution in Englewood, Colorado 

(FCI-Englewood).2

 Mr. Coleman alleged that, while exercising in his cell one 

morning, he passed out on the floor and regained consciousness a few minutes later. 

See R. at 42. After a shower, he reported dizziness and shortness of breath to a 

correctional officer. A prison nurse did not examine Mr. Coleman personally, but 

instructed the correctional officer to have Mr. Coleman lie down and drink water. 

Mr. Coleman vomited and passed out again. Prison officials took Mr. Coleman to a 

holding cell in the health services unit, but he “was again returned to his unit without 

any medical treatment and told to drink water and get some rest before coming to 

sick call the following morning.” Id. at 43. Mr. Coleman had a seizure later that 

evening, so prison officials transported him to Denver Health Medical Center, where 

an examination revealed three blood clots. See id. at 44. 

Mr. Coleman sued the United States under the FTCA, alleging “the deliberate 

and wanton disregard of his medical needs by the listed medical staff at 

[FCI-Englewood] rises to the level of a tortable [sic] claim as a violation of the 

Eighth Amendment’s protections against cruel and unusual punishment.” Id. The 

district court dismissed the claim because Mr. Coleman did not timely file a 

certificate of review, and Mr. Coleman appealed. In Coleman v. United States, 

2

 Coleman is now incarcerated at the Federal Correctional Institution in 

Talladega, Alabama. 
3 

803 F. App’x 209, 212–15 (10th Cir. 2020), a panel of this court vacated the district 

court’s dismissal order and remanded for further consideration of (1) whether expert 

testimony was required for Mr. Coleman to establish a prima facie case, (2) whether 

dismissal, if warranted, should be for failure to state a claim upon which relief can be 

granted, and (3) whether dismissal, if warranted, should be with or without prejudice. 

On remand, the government moved for an order requiring Mr. Coleman to 

show cause why his claim should not be dismissed without prejudice for failure to 

file a certificate of review. R. at 88. The government argued Fed. R. Civ. P. 41(b) 

“is the best mechanism under the Federal Rules of Civil Procedure to address the 

certificate of review requirement” in part because “it avoids Rule 12 as a procedural 

mechanism, and avoiding Rule 12 is consistent with the Tenth Circuit’s order, state 

court decisions, and the operation of [Colo. Rev. Stat. § 13-20-602].” Id. at 89–90. 

Mr. Coleman then filed a “Request for a Court Order Requiring a Physician 

to Provide an Affidavit or Answer Interrogatories on Matters Relevant to 

Mr. Coleman’s Initial Diagnosis[,] Injury, and Treatment,” in which he stated he 

“now underst[ood] the significance of filing a certificate of review,” Supp. R. Vol. 1 

at 7 (internal quotation marks omitted), requested that the court appoint a medical 

expert on his behalf, see id. at 8, and argued the allegations in his complaint, taken as 

true and construed liberally in his favor, plausibly stated a claim for negligence, see 

id. at 8–11. He also moved for appointment of counsel, which the district court 

denied. 
4 

The district court reviewed Mr. Coleman’s amended complaint, determined he 

needed to file a certificate of review, and concluded his “failure to file a certificate of 

review bars him from proceeding with his claims.” R. at 115. The court then ordered 

that “Plaintiff’s claims . . . are dismissed without prejudice.” Id. Initially, the final 

judgment issued by the district court clerk stated: “this case is dismissed with 

prejudice pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure to 

prosecute and to obey orders of the Court.” Id. at 117 (emphasis added). The clerk 

later issued an amended final judgment that correctly indicated the dismissal was 

without prejudice. 

DISCUSSION 

“This Court reviews for an abuse of discretion a district court’s decision to 

dismiss an action for failure to prosecute.” Ecclesiastes 9:10-11-12, Inc. v. LMC 

Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007). Such abuse can occur “when a 

district court relies upon an erroneous conclusion of law or upon clearly erroneous 

findings of fact.” Id. Mr. Coleman argues the district court should not have 

dismissed his complaint because (1) given the nature of his allegations, he did not 

need expert testimony to establish a prima facie case and therefore did not need to 

file a certificate of review,3

 (2) he did not “fail to prosecute” his claims, and (3) the 

3

 Coleman’s fourth and fifth issues for review substantially restate the 

arguments he presents in his first issue for review, so the same analysis applies to 

each of those issues. 
5 

district court should have granted his motions for appointment of counsel and 

appointment of an expert. 

Regarding Mr. Coleman’s first argument, his negligence claims against the 

United States are subject to the FTCA, which “provides that the United States shall 

be liable under state tort law only ‘in the same manner and to the same extent as a 

private individual under like circumstances.’” Nationwide Mut. Ins. Co. v. United 

States, 3 F.3d 1392, 1396 (10th Cir. 1993) (quoting 28 U.S.C. § 2674). We have held 

the FTCA incorporates the requirements of Colorado’s certificate of review statute 

for claims against professionals “regarding whom expert testimony would be 

necessary to establish a prima facie case.” Colo. Rev. Stat. § 13-20-601. See Hill v. 

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

certificate of review statute, 

[i]n every action for damages or indemnity 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 . . . against such 

person unless the court determines that a longer period is 

necessary for good cause shown. 

Colo. Rev. Stat. § 13-20-602(1)(a). “[T]he requirements of the certificate of review 

statute are applicable to civil actions alleging negligence of licensed professionals 

filed by nonattorney pro se plaintiffs.” Yadon v. Southward, 64 P.3d 909, 912 

(Colo. App. 2002). And, “[t]he failure to file a certificate of review in accordance 

with [§ 602] shall result in the dismissal of the complaint . . . .” 
6 

Colo. Rev. Stat. 13-20-602(4). Because Mr. Coleman did not file a certificate of 

review, the district court appropriately dismissed his claims. 

Seeking to avoid application of the certificate of review requirement, 

Mr. Coleman argues the court misconstrued the nature of his claims. He asserts the 

cause of his injuries was not merely substandard care, but a total lack of medical care 

despite his worsening symptoms. He therefore contends his claims should have 

proceeded under the doctrine of res ipsa loquitur. 

Under Colorado law, “[i]t is only in unusual circumstances that a medical 

malpractice claim can be proven without the presentation of expert medical opinion 

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

be measured. However, some claims of professional negligence do not require expert 

testimony.” Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623, 627 

(Colo. 1999). For example, “[i]n some instances, a claim relying on the doctrine of 

res ipsa loquitur will not require a certificate of review because the facts create a 

presumption of negligence and, therefore, expert testimony is not necessary.” 

Williams v. Boyle, 72 P.3d 392, 397 (Colo. App. 2003). 

Here, however, we agree with the district court that Mr. Coleman’s allegations 

did not depict such a situation. His complaint alleged that, during the span of one 

day, he went from exercising alone in his cell to being transported to a hospital and 

receiving treatment for blood clots. Mr. Coleman does not deny receiving medical 

care altogether—to the contrary, he alleges prison officials transferred him to the 

health services unit of FCI-Englewood—but he alleges prison medical staff should 
7 

have identified his condition and treated him more quickly. But it is unclear from the 

allegations in the amended complaint precisely what (if any) type of examination or 

treatment, administered at what point in the day, would have made a difference in 

Mr. Coleman’s overall outcome. For instance, it is unclear whether the seizure 

Mr. Coleman suffered was preventable or an inevitable result of the later-discovered 

blood clots. These are the types of issues which, as the district court concluded, 

would require expert testimony to substantiate. See id. (concluding expert testimony 

was required where plaintiff alleged “that defendant owed a duty of care to plaintiff, 

which he breached by not giving appropriate diagnosis, treatment, and follow up of 

plaintiff’s health problems.”). 

Mr. Coleman also argues dismissal for failure to prosecute under 

Fed. R. Civ. P. 41(b) was inappropriate because he “did not fail to prosecute [or] 

obey orders of the court,” Opening Br. at 3, and that “the district court is being 

confusing” because its order dismissing his claims specifies the dismissal is without 

prejudice but the final judgment stated the dismissal was with prejudice, see id.; 

R. at 116 (order), id. at 117 (final judgment). But Rule 41 was simply the procedural 

vehicle the court used to enforce the certificate of review requirement. For the 

reasons set forth above, we conclude it was correct to do so. And the court corrected 

any confusion regarding its dismissal by issuing an amended final judgment 

clarifying the dismissal was without prejudice. See Supp. R. Vol. 2 at 3. 

Mr. Coleman last argues the district court should have granted his motion for 

the court to appoint an expert to assist him in meeting the certificate of review 
8 

requirement and his motion for appointment of counsel. “We review a district 

court’s denial of a motion to appoint an expert for abuse of discretion.” Duckett v. 

Mullin, 306 F.3d 982, 999 (10th Cir. 2002). We likewise “review a district court’s 

refusal to appoint counsel for an indigent prisoner in a civil case for an abuse of 

discretion.” Hill, 393 F.3d at 1115. “Only in those extreme cases where the lack of 

counsel results in fundamental unfairness will the district court’s decision be 

overturned.” Id. (internal quotation marks omitted). “It is not enough that having 

counsel appointed would have assisted the prisoner in presenting his strongest 

possible case, as the same could be said in any case.” Steffey v. Orman, 461 F.3d 

1218, 1223 (10th Cir. 2006) (internal quotation marks and alterations omitted). 

Although he emphasizes his indigency, Mr. Coleman offers no basis for us to 

conclude the district court abused its discretion in declining to appoint counsel or an 

expert for him, or that failure to appoint counsel resulted in fundamental unfairness, 

so we do not consider this argument further. 

CONCLUSION 

For the foregoing reasons, we affirm the judgment of the district court. We 

grant Mr. Coleman’s request for leave to proceed without prepayment of costs or fees 

on appeal. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge