F I L E D

United States Court of Appeals

Tenth Circuit

DEC 28 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERNEST J. HILL, III,

Plaintiff-Appellant,

v.

SMITHKLINE BEECHAM

CORPORATION, doing business as

Glaxosmithkline; WYETH

PHARMACEUTICALS; LAWRENCE

LEYBA, D.O., individually and in his

official capacity; JAMES M.

WATTERSON, Ph.D., individually

and in his official capacity;

MICHAEL W. MORRISON, Ph.D.,

individually and in his official

capacity; UNITED STATES OF

AMERICA;

Defendants-Appellees.

No. 04-1053

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 02-F-1613 (MJW))

Submitted on the briefs:

Ernest J. Hill, III, pro se.

John W. Suthers, United States Attorney, and Megan McDermott, Assistant

United States Attorney, Denver, Colorado, for Defendants-Appellees Lawrence
* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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Leyba, James Watterson, Ph.D., Michael Morrison, Ph.D., and United States of

America.

Charles L. Casteel and Marilyn S. Chappell of Davis Graham and Stubbs, LLP,

Denver, Colorado, for Defendant-Appellee Wyeth Pharmaceutical Laboratories,

and Mary A. Wells and Greg W. LePage of Wells, Anderson & Race, LLC,

Denver, Colorado, for Defendant-Appellee SmithKline Beecham Corporation.

Before LUCERO , McKAY , and PORFILIO , Circuit Judges.

LUCERO , Circuit Judge.

Ernest J. Hill, III, a prisoner appearing pro se, appeals the district court’s

grant of summary judgment for defendant pharmaceutical companies and motion

to dismiss for the United States and Bureau of Prisons staff members on his tort

claims arising from injuries allegedly caused from taking prescription medication. 

We exercise jurisdiction under 28 U.S.C. § 1291, and AFFIRM. *

I

By his own admission, Hill suffers from a number of mental disorders,

including anxiety and panic disorder. While incarcerated at the United States

Penitentiary, Administrative Maximum at Florence, Colorado (“ADX”), mental
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health officials prescribed “Paxil,” manufactured by Smithkline Beecham

Corporation (GSK), and “Effexor,” manufactured by Wyeth as medications for his

mental health conditions. Defendants Leyba (Clinical Director), Watterson (Chief

Psychologist), and Morrison (Staff Psychologist) were all ADX staff members

whom Hill contends were involved in the relevant decisions regarding his mental

health treatment. 

In August 2002, Hill sued defendants under Colorado law and the Federal

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671 et seq. , alleging that he

had suffered physical injuries, including liver damage and withdrawal symptoms,

from using Paxil and Effexor. His complaint against GSK and Wyeth included

products liability, failure to warn, breach of express and implied warranty, and

negligence claims, and his complaint against the individual defendants included

prescribing drugs without a medical license, illegal practice of medicine, medical

malpractice, and negligence claims. In an amended complaint, Hill added the

United States as a defendant and asserted claims against it under the FTCA for

the acts and omissions of the individual defendants. Additionally, the district

court allowed Hill to amend his complaint to assert claims of constitutional

violations against the individual defendants pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971).
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During the litigation, the parties traded numerous filings, resulting in a

district court docket containing more than 250 entries. Filings relevant to this

appeal include multiple requests by Hill for the district court to appoint counsel

under 28 U.S.C. § 1915(e)(1), each of which the magistrate judge denied; many

objections by Hill made under Federal Rule of Civil Procedure 72(a) to rulings by

the magistrate judge; motions for summary judgment by GSK and Wyeth; and

motions to dismiss by the United States and the individual defendants.

Issuing a comprehensive analysis of defendants’ various dispositive

motions, the magistrate judge recommended granting GSK’s and Wyeth’s motions

for summary judgment and granting the remaining defendants’ motions to dismiss. 

Hill timely filed his objections to the magistrate judge’s recommendations. On

February 9, 2004, the district court accepted the magistrate judge’s

recommendations and granted judgment in favor of all defendants. Hill now

appeals.

II

Hill first argues that the district court erred in failing to grant his repeated

motions for appointment of counsel under § 1915(e)(1). GSK and Wyeth assert

that because Hill failed to object to an initial ruling denying his request for

appointed counsel that Hill therefore waived his right to appeal the denial, even
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though he timely objected to the district court’s denials of both his third and

fourth requests for appointed counsel. 

We have a “firm waiver rule when a party fails to object to the findings and

recommendations of the magistrate.” Moore v. United States , 950 F.2d 656, 659

(10th Cir. 1991). If the parties fail to make a timely objection, they “waive[ ]

appellate review of both factual and legal questions.” Id. Here, however, Hill did

timely object to the magistrate judge’s rulings denying his third and fourth

requests for counsel, each of which occurred at later stages of the litigation. 

Although we agree with GSK and Wyeth’s contention that a party may not revive

a waived issue simply by renewing a motion and then objecting to the later ruling,

we note in the present case that the later denials of counsel were predicated upon

the circumstances as they existed at the time of each particular ruling. Thus, to

the extent that Hill’s later requests were based on evolving circumstances, they

were not merely attempts to revive waived issues. For this reason, “application of

the firm waiver rule here would be pointless,” and we will consider Hill’s

arguments. Garrett v. Fleming , 362 F.3d 692, 695 n.5 (10th Cir. 2004). 

We review a district court’s refusal to appoint counsel for an indigent

prisoner in a civil case for an abuse of discretion. See Rucks v. Boergermann ,

57 F.3d 978, 979 (10th Cir. 1995). “The burden is on the applicant to convince

the court that there is sufficient merit to his claim to warrant the appointment of
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counsel.” McCarthy v. Weinberg , 753 F.2d 836, 838 (10th Cir. 1985). “Only in

those extreme cases where the lack of counsel results in fundamental unfairness

will the district court’s decision be overturned.” Id. at 839 (holding a prisoner

with multiple sclerosis attending court in a wheelchair who had diminished

eyesight, hearing, and ability to communicate and needed to present complex

medical issues requiring expert opinion should have been appointed counsel).

We have previously directed district courts to evaluate, in connection with

a request to appoint counsel under § 1915, the merits of a prisoner’s claims, the

nature and complexity of the factual and legal issues, and the prisoner’s ability to

investigate the facts and present his claims. Rucks, 57 F.3d at 979; see also ,

Maclin v. Freake , 650 F.2d 885, 887-89 (7th Cir. 1981). 

We acknowledge that this case may be factually and legally complex, but

Hill’s many pleadings and filings in the district court, as well as his appellate

briefs and filings, indicate a much higher degree of legal sophistication than is

generally found in pro se parties. In adopting a totality of the circumstances test,

the district court found that even assuming Hill had a colorable claim, he was able

to present his case adequately. See e.g. , McCarthy , 753 F.2d at 839. Although

courts have often appointed counsel for indigent prisoners in cases requiring

expert testimony, we cannot say that the district court abused its discretion here,

especially considering the record’s failure to reflect that Hill tried and failed to
1 The government argues that Hill did not raise the issue of the district

court’s failure to rule on his Rule 72(a) objections in proceedings before the

district court. This contention ignores Hill’s filing of at least two motions

apparently urging the district court to rule on his pending objections. See Docket

Nos. 166, 236. See also Docket No. 147 (urging court to rule on May 9, 2003

objections).

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retain potential experts. We note that Hill’s Bivens claims against the individual

defendants for violations of his Eighth Amendment right to medical care were

dismissed for failure to state a claim, and Hill does not appeal that judgment. 

Thus, this appeal for appointed counsel is one enabling Hill to pursue money

damages for alleged torts, and not one concerning continued violations of

constitutional rights. Furthermore, we agree with the district court that Hill’s

alleged inability to access Colorado law did not cause his case to be dismissed;

even with his limited resources, Hill was aware of his need for expert testimony

and the Colorado certificate-of-review requirement. Even though we recognize

that it might have been easier for Hill to obtain an expert witness if he had

counsel, under these circumstances, we cannot conclude that the district court’s

ruling resulted in fundamental unfairness to Hill or was an abuse of the court’s

discretion.

III

Hill next argues that the district court erred by failing to consider his

various Rule 72(a) objections to the magistrate judge’s rulings. 1

 Hill contends
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that the district court’s failure to resolve his objections shows that the district

court did not even consider them. 

We note that many of the objections Hill identifies as remaining unresolved

were either (1) actually addressed by the district court (including his objections to

the magistrate judge’s refusal to appoint counsel and certain discovery issues),

(2) rendered moot prior to the district court’s dispositive decisions (such as Hill’s

objections to the magistrate judge’s refusal to allow him to join the United States

as a party without filing an amended complaint), or (3) not objections at all, but

separate motions to the district court requesting rulings on previously filed

objections. As for the remainder of his objections, the district court’s failure to

address Hill’s arguments may be properly construed as an implicit denial of those

arguments. See Stewart v. Oklahoma , 292 F.3d 1257, 1260 (10th Cir. 2002)

(construing the district court’s silence on the issue of Eleventh Amendment

immunity as an implicit denial of the state’s claim to immunity); Alpine View Co.

v. Atlas Copco AB , 205 F.3d 208, 220 (5th Cir. 2000) (interpreting lack of

explicit statement on Rule 72(a) objections as refusal to overrule the magistrate

judge’s order). We see no basis for concluding that the district court did not

consider Hill’s objections, and we find no error justifying reversal.
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IV

Hill also complains that the district court, without giving any reasons,

denied his Rule 56(f) motions for continuances to respond to GSK’s and Wyeth’s

motions for summary judgment. We review this issue for an abuse of discretion. 

See Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc. , 52 F.3d 901, 904

(10th Cir. 1995).

It is preferable that the district court set forth its reasons for denying a

motion that calls for the exercise of its discretion. See United States v. Wright ,

826 F.2d 938, 943 (10th Cir. 1987) (motion for bill of particulars); Childers v.

Indep. Sch. Dist. No. 1 , 676 F.2d 1338, 1343 (10th Cir. 1982) (motion to amend). 

We have held, however, that a failure of explanation is harmless when the record

reveals the apparent reason or reasons justifying the denial. See Wright , 826 F.2d

at 943; Long v. United States , 972 F.2d 1174, 1183 (10th Cir. 1992) (motion to

amend).

In this instance, the magistrate judge’s denials of Hill’s Rule 56(f) motions

were the last in a series of nine separate rulings on discovery matters, all included

in one order. Among other rulings, the court granted protective orders to GSK

and Wyeth, denied Plaintiff’s motions to compel discovery, and stayed additional

discovery by any party until further order of the court. Thus, when the order is

read as a whole, the court did not deny Hill’s Rule 56(f) motions with no
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explanation. Rather, it is evident that the magistrate judge believed that Hill had

adequate discovery opportunity, that Hill’s discovery efforts were becoming

abusive, and that sufficient discovery had taken place to address the issues then

before the court. The district court’s decision not to reverse this order does not

constitute an abuse of discretion.

V

Finally, Hill contends that the district court erred in dismissing his FTCA

claim against the United States under Colo. Rev. Stat. § 13-20-602(1)(a), which

requires plaintiffs to file a certificate of review to pursue claims alleging

professional negligence by a licensed professional. Although he failed to file a

certificate of review, Hill argues that the requirement should not apply to his

FTCA claim because the individual defendants (on whose account the United

States has been substituted as a defendant under the FTCA) are not licensed by

the State of Colorado, and the legislative declaration regarding the certificate of

review provisions specifically refers to “those professionals who are licensed by

this state to practice a particular profession.” Colo. Rev. Stat. § 13-20-601. As

an issue of statutory construction, we review this question de novo. See United

States v. Sack , 379 F.3d 1177, 1178 (10th Cir. 2004), petition for cert. filed (US.

Nov. 15, 2004) (No. 04-7286). 
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“The FTCA 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). “Recognizing that the United

States is seldom situated identically to private parties, however, the ‘like

circumstances’ inquiry requires only that the United States be analogized to a

similarly situated private party.” Id. Because it waives the United States’

sovereign immunity, the FTCA must be construed narrowly. See , In re Franklin

Sav. Corp. , 385 F.3d 1279, 1289-90 (10th Cir. 2004). Accordingly, it is

Congress’s intent in enacting a limited waiver of sovereign immunity in the

FTCA, not the intent of the Colorado legislature in passing the certificate-ofreview requirement, that is relevant to our inquiry. See Cox v. United States ,

881 F.2d 893, 895 (10th Cir. 1989).

State substantive law applies to suits brought against the United States

under the FTCA. See 28 U.S.C. § 1346(b)(1). In a federal action predicated upon

diversity jurisdiction, we have determined that Colorado’s certificate of review

requirement is a substantive rule of law. Trierweiler v. Croxton & Trench

Holding Corp. , 90 F.3d 1523, 1541 (10th Cir. 1996). Consequently, we conclude

that the Colorado review statute is applicable to professional negligence claims

brought against the United States under the FTCA. 
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In light of the “similarly situated” requirement, we have previously rejected

arguments similar to Hill’s and have allowed the United States the benefits of

certain state-law defenses in FTCA actions, even when the United States did not

meet the technical requirements of state law. In Nationwide Mutual Insurance

Co., for example, we concluded that a subrogation claim in an automobile

accident involving a postal vehicle could not be brought against the United States,

which action under Colorado law is permissible only if the tortfeasor was not “an

insured under a policy of automobile liability insurance issued by an insurer

licensed to write automobile insurance in [Colorado].” 3 F.3d at 1395 (citation

omitted). Because the United States was self-insured at the time of the accident,

rather than insured by a Colorado-licensed insurer, it was thus potentially liable to

suit under the strict terms of the statute. Id. at 1394. Nevertheless, in light of the

“like circumstances” requirement, we concluded, “so long as the United States

provides protection that is equivalent to that which Colorado can and does require

of private parties, the United States should be able to take advantage of the

immunity that Colorado law offers to private parties.” Id. at 1396. Because the

United States had functionally complied with Colorado’s insurance requirements

through its system of self-insurance, we concluded that it was entitled to the

benefit of Colorado’s bar against suit. Id. at 1396-97. 
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In Haceesa v. United States , 309 F.3d 722, 725-27 (10th Cir. 2002), we

again relied on the “like circumstances” provision to conclude that the United

States was entitled to a recovery cap under the New Mexico Medical Malpractice

Act, although it had not technically complied with the statutory requirements for

the cap. The statute made the cap available to a qualified health care provider

who established financial responsibility by filing proof of malpractice liability

insurance of at least $200,000 and who participated in New Mexico’s Patient

Compensation Fund. Id. at 725. Even though the United States had not complied

with either requirement, we noted that three other circuit courts had held that the

United States was entitled to the benefit of similar recovery caps. Id. at 726. The

rationales supporting these holdings included not only the “like circumstances”

provisions of the FTCA, but also the assured financial responsibility of the United

States and the fact that it must pay its debts without resort to a compensation

fund. Id.

In the present case, to hold that the United States is not entitled to the

protection of the certificate of review requirement would place it in a differently

situated position than private parties defending against professional negligence

claims in Colorado, thereby undermining the conditions precedent to the United

States’ waiver of sovereign immunity in the FTCA. In order to sue a licensed

professional in Colorado, a plaintiff would first have to obtain a certificate of
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review. Likewise, the United States can only be liable under “like circumstances”

to the extent that Colorado’s certificate of review provision equally applies to the

psychologists and psychiatrists it employs. Simply because the professionals

practicing with the Bureau of Prisons are not licensed by the State of Colorado,

we cannot conclude that the United States’ operates in sufficiently different

circumstances to render it liable for professional negligence claims where private

parties would not be. It would undermine Congress’s limited intent in waiving

immunity under the FTCA for us to hold otherwise. This conclusion not only

accords with our holdings in Haceesa and Nationwide , but also with the holdings

of other circuit courts in FTCA actions involving defenses or benefits that

technically require state licensing. See Taylor v. United States , 821 F.2d 1428, 

1431-32 (9th Cir. 1987) (awarding United States benefit of liability limitation,

even though “health care provider” defined as person or entity licensed by

California); Owen v. United States , 935 F.2d 734, 737 (5th Cir. 1991) (applying

state malpractice liability cap specifying “health care providers” as Louisianalicensed persons and facilities); Scheib v. Fla. Sanitarium & Benevolent Ass’n ,

759 F.2d 859, 863-64 (11th Cir. 1985) (applying collateral source rule established

by statute defining “health care provider” as Florida-licensed hospital or

physician). 
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The certificate of review requirement applies whether or not the plaintiff is

represented by counsel. See Yadon v. Southward , 64 P.3d 909, 912 (Colo. Ct.

App. 2002) (concluding that pro se nonattorney plaintiffs are not exempt from

filing certificate of review). A plaintiff’s failure to file the certificate requires

dismissal of professional negligence claims. Colo. Rev. Stat. § 13-20-602(4);

Teiken v. Reynolds , 904 P.2d 1387, 1389 (Colo. Ct. App. 1995). Accordingly, it

was not error for the district court to dismiss Hill’s FTCA claim against the

United States for failure to file a certificate of review. 

Hill’s motion to strike certain portions of GSK’s and Wyeth’s response

brief is DENIED . The judgment of the district court is AFFIRMED . Hill is

reminded that he is obligated to continue making partial payments until the entire

appellate filing fee has been paid.