IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Civil Action No. 11-cv-02484-CMA-BNB

BENJAMIN GODFREY CHIPPS, SR.,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

ORDER DENYING DEFENDANT=S MOTION TO DISMISS

This matter is before the Court on Defendant=s Motion to Dismiss pursuant to 

Fed. R. Civ. P. 12(h)(3). (Doc. # 34.) For the following reasons, this Court denies the 

motion.

I. BACKGROUND

A. FACTS

Between September 2005 and February 2009, Plaintiff was a prisoner at the 

Federal Correctional Institution (AFCI@) in Florence, Colorado and, later, at the FCI in 

Sandstone, Minnesota. (Doc. # 1 at 2.) On September 3, 2005, Plaintiff sought medical 

attention at FCI Florence=s clinic, complaining about blood in his urine and pain in his 

right side and groin. (Id.) Medical staff diagnosed him with kidney stones and gave him 

medication. (Id.) Plaintiff returned to the clinic on September 8, 2005, with similar 

complaints (Doc. # 1 at 2-3) and was diagnosed with kidney stones and a urinary tract 

infection. (Doc. # 8-1.) When Plaintiff returned to the clinic for a check-up on 

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September 20, 2005, his symptoms were no longer present. (Doc. # 8-1.) A urine 

sample taken from Plaintiff in October 2005 revealed the continued presence of blood 

(Doc. # 1 at 3), but Plaintiff was not told about the results. (Doc. # 8-1.) No healthcare 

provider performed testing to determine the cause of the blood from 2005 until 2009. 

(Doc. # 1 at 3.) Meanwhile, Plaintiff was transferred to the FCI in Sandstone. (Id.) 

Plaintiff visited the medical clinics in Florence and Sandstone several times from 2007 

through 2009 for other medical problems. (Doc. # 1; Doc. # 7-1.)

Plaintiff requested his medical records from the Federal Bureau of Prisons 

(“BOP”) on December 26, 2008. (Doc. # 34-5.) The health clinic at Sandstone received 

Plaintiff’s request on December 29, 2008. (Doc. #34-4 at 2; Doc. #34-5.) The following 

day, December 30, 2008, Ms. Jaclyn Revier, a Health Information Technician at 

Sandstone, placed Plaintiff on “call-out” so he could pick-up his medical records. (Doc. 

34-4 at 1-2.) The record does not reveal what exactly was contained in these medical 

records only that they were handed over to Plaintiff on December 30. 

On February 9, 2009, Plaintiff=s symptoms returned. (Doc. # 8-1.) He reported to 

the clinic in Sandstone, complaining of an inability to urinate and a recent episode of 

bloody urine. (Id.) A urinalysis performed on February 9, 2009, showed a large amount 

of blood in Plaintiff=s urine and a CT scan performed later that same day detected 

probable kidney masses. (Doc. # 34-6, at 1-2.) Further, Mr. Pete Bennett, a nurse at 

Sandstone, entered a clinical encounter administrative note on February, 11, 2009, that 

Plaintiff was to be treated for bilateral renal cancer. (Id. at 3.) There is no indication in 

the record presented whether Plaintiff knew of this diagnosis on February 11, 2009. 

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On February 17, 2009, Plaintiff=s right kidney was removed. (Doc. # 39-4.) A

pathology exam performed on that same date revealed that Plaintiff had kidney cancer. 

(Doc. # 39-5, at 1.) Plaintiff claims that he first learned that he had kidney cancer on 

February 17, 2009. (Doc. # 8-1, at 2.) In April 2009, part of Plaintiff=s left kidney was 

removed, and a pathology exam revealed that it, too, was cancerous. (Doc. # 1 at 4.)

When claiming damage, injury, or death, against the federal government, a 

claimant must submit a form SF-95 to the appropriate agency. Plaintiff submitted this 

form to the BOP claiming personal injury for the loss of his kidneys and for increased 

risk of death or disability from the development of kidney cancer. (Doc. #7-1.) The BOP 

received Plaintiff’s SF-95 on February 15, 2011. (Doc. #7-1 at 1). 

B. PROCEDURAL HISTORY

Plaintiff filed a claim against the United States alleging negligence in its diagnosis 

and treatment of his kidney condition on September 21, 2011. Specifically, Plaintiff 

alleged negligence for the following: (1) Afailing to properly work up@ the cause of blood 

in his urine and (2) failing Ato construct medical records in a proper manner.@ (Doc. # 1 

at 4.) Plaintiff alleged that this negligence was a proximate cause of the “worsening” 

and “spread” of cancer throughout Plaintiff’s kidneys. (Id.) Plaintiff alleged that these 

claims arose under the Federal Tort Claims Act or FTCA. See 28 U.S.C. ' 1346(b)(1).

On January 3, 2012, Defendant filed a Motion to Dismiss pursuant to Fed. R. Civ. 

P. 12(b)(1), arguing that this Court does not have subject-matter jurisdiction because 

Plaintiff=s claim is time-barred by the FTCA=s statute of limitations. See 28 U.S.C. '

2401(b). (Doc. # 7.) This Court denied Defendant’s Motion to Dismiss on September 

24, 2012. (Doc. #14.)

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After completing discovery, Defendant filed its current Motion to Dismiss on 

August 1, 2013. (Doc. # 34.) Plaintiff responded on August 22, 2013 (Doc. # 39), and 

Defended replied on September 4, 2013 (Doc. #40). 

II. STANDARD OR REVIEW

The Court must dismiss a cause of action if it lacks subject matter jurisdiction.

Fed. R. Civ. P. 12(h)(3); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). 

The issue of subject matter jurisdiction may be raised at any time during the 

proceedings. See McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 

1988). Analytically, a Rule 12(h)(3) motion and a Rule 12(b)(1) motion are the same. 

See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 884 n.3 (3d Cir. 1992) 

(noting that the distinction between the two motions is that a 12(h)(3) motion “may be 

asserted at any time and need not be responsive to any pleading of other party”).

A Rule 12(b)(1) motion to dismiss may take the form of a facial attack on the 

complaint’s allegations, or, as here, it may challenge the facts on which subject matter 

jurisdiction depends. Holt v. United States, 46 F.3d 1000, 1002–1003 (10th Cir. 1995). 

As the Tenth Circuit stated in Holt:

When reviewing a factual attack on subject matter jurisdiction, a district 

court may not presume the truthfulness of the complaint's factual 

allegations. A court has wide discretion to allow affidavits, other 

documents, and a limited evidentiary hearing to resolve disputed 

jurisdictional facts under Rule 12(b)(1). In such instances, a court's 

reference to evidence outside the pleadings does not convert the motion 

to a Rule 56 motion. 

Id. at 1003. 

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When the resolution of the jurisdictional question is “intertwined with the merits of 

the case,” however, a court is required to convert a Rule 12(b)(1) motion into a 

Rule 12(b)(6) motion or a Rule 56 motion for summary judgment. Id. 

Here, the Court converts Defendant’s motion into one for summary judgment 

under Rule 56 because the submissions of both parties, which include numerous pieces 

of evidence obtained in discovery, go beyond what is normally considered in deciding a 

motion to dismiss. See Lowe v. Town of Fairland, Okl., 143 F.3d 1378, 1381 (10th Cir. 

1998). 

Thus, this Court reviews Defendant’s motion under Federal Rule of Civil 

Procedure 56. Under that Rule, “[t]he court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. Proc. 56(a). Further, “[i]n deciding 

whether summary judgment is appropriate, the Court construes all facts and reasonable 

inferences drawn from the record in the light most favorable to the nonmoving party.” 

Entek GRB, LLC v. Stull Ranches, LLC, 937 F. Supp. 2d 1328, 1332 (D. Colo. 2013). 

III. DISCUSSION

A. DETERMINING THE DATE AN FTCA CLAIM ACCRUES 

By enacting the FTCA, Congress Aconsented to suits against the United States 

for certain torts committed by federal employees while acting within the scope of their 

employment.@ Woodruff v. Covington, 389 F.3d 1117, 1125 (10th Cir. 2004). At the 

same time, 28 U.S.C. ' 2401(b) dictates that A[a] tort claim against the United States 

shall be forever barred unless it is presented in writing to the appropriate Federal 

Agency within two years after such claim accrues . . . .@

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Resolving the disagreement between the parties on this motion requires 

determining whether there is a genuine dispute that Plaintiff “presented” his claims

within two years of when they accrued, such that the claims are not barred under 28 

U.S.C. § 2401(b). 

As an initial matter, there is no dispute about the date the claim was “presented” 

for purposes of 28 U.S.C. § 2401(b). It is well established that presentment occurs 

when the federal agency receives the claim. See, e.g., Anderberg v. United States, 718

F.2d 976, 977 (10th Cir. 1983). Further, the parties agree—as does the Court—that 

presentment occurred for purposes of Plaintiff’s claims on February 15, 2011, when the 

BOP received Plaintiff’s SF-95. 

The parties do dispute, however, whether the claim accrued within two years of 

presentment: in other words, there is a dispute whether the claim accrued on or after 

February 15, 2009. Further, determining the date of accrual is a more complicated 

matter in a medical malpractice case. As to this question, in United States v. Kubrick,

444 U.S. 111 (1979), the Supreme Court reasoned that “the general rule under the 

[Federal Tort Claims] Act has been that a tort claim accrues at the time of the plaintiff's 

injury.” Id. at 120. At the same time, “the [Kubrick] Court found an exception in medical 

malpractice and latent injury cases, adopting therein the ‘discovery rule.’” Plaza 

Speedway Inc. v. United States, 311 F.3d 1262, 1267 (10th Cir. 2002). 

As the Tenth Circuit has reasoned, “the discovery rule, which holds a claim does 

not accrue until the injured party knows of both the existence and cause of the injury, is 

followed to protect plaintiffs who are blamelessly unaware of their claim because the 

injury has not yet manifested itself or because the facts establishing a causal link 

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between the injury and the medical malpractice are in the control of the tortfeasor or 

otherwise not evident.” Id. (internal quotation marks omitted). 

Further, as the Tenth Circuit has noted, Ain misdiagnosis cases, the relevant 

injury for accrual is the injury that is caused by the misdiagnosis and lack of treatment, 

not the pre-existing injury that brought the patient to the doctor=s door.@ Harvey v. 

United States, 685 F.3d 939, 949 (10th Cir. 2012). Under such circumstances, Ait is 

only when the patient becomes aware or through the exercise of reasonable diligence 

should have become aware of the development of a pre-existing problem into a more 

serious problem that his cause of action can be said to have accrued for purposes of 

section 2401(b).@ Id. (quotation marks and citations omitted).

B. APPLICATION

Defendant contends that Plaintiff’s claim accrued on December 30, 2008, when 

he received his medical records, or alternatively on February 9, 2009, when he had a 

recurrence of symptoms he had had back in 2005. Because both of these dates are 

more than two years before February 15, 2011, Defendant concludes that Plaintiff’s 

claims are barred pursuant to 28 U.S.C. ' 2401(b). 

The Court finds that, for purposes of summary judgment, there is insufficient 

evidence to support Defendant’s contention that Plaintiff’s claims accrued on or prior to 

either of these dates. First, there is little evidence to establish that Plaintiff’s claim 

accrued on December 30, 2008, when Plaintiff received his medical records. There is 

no indication that the records received on this date contained any information 

suggesting that Plaintiff had suffered from kidney cancer. Indeed, this Court is at a loss 

to determine what exactly was contained in the records obtained on December 30

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because this information has not been provided in Defendant’s motion. In a similar 

vein, there is no evidence in the record that Plaintiff was on notice of a causal link 

between the injury alleged here—worsening kidney cancer—and the medical 

misdiagnosis that allegedly caused it. Rather, the evidence—at least as presented—

establishes that no one knew Plaintiff had kidney cancer on December 30.

1

Defendant alternatively asserts that Plaintiff’s claim accrued on February 9, 2009,

“when he had another episode of hematuria shortly before his kidney cancer diagnosis” 

because he passed blood in his urine and was unable to urinate for several hours. 

(Doc. #34 at 12.) Defendant notes that “the 2009 episode was very similar to his 2008 

symptoms” and concludes that Plaintiff’s “knowledge of these facts should have alerted 

him that his prior condition had developed into a worse one.” (Id. (internal quotation 

marks omitted).) 

This argument fails for a number of reasons. First, Defendant’s position appears 

to mischaracterize the injury alleged by Plaintiff, which concerns worsening kidney 

cancer, not a mistreated hematuria. Second, Defendant provides no factual or legal 

support for its position that the presence of “very similar” symptoms would lead a 

reasonable person to conclude that a condition had “worsened” rather than merely 

manifested itself once again.2

 

1

 Defendant also stresses that Plaintiff did not immediately send his medical file to an attorney 

or doctor. As Plaintiff testified, he requested the file “to see if there was any wrongdoing.” (Doc. 

# 34-3 at 6). But in light of the fact that the medical file on this date did not contain any 

information about worsening symptoms or kidney cancer, it is unclear to this Court what effect 

Plaintiff’s decision has on this case. 

2 Defendant cites Arvayo v. United States for the proposition that a plaintiff has “an affirmative 

duty to exercise reasonable diligence in inquiring about the cause of the injury.” 766 F.2d 1416, 

1422 (10th Cir. 1985). Arvayo is distinguishable from the instant case. In Arvayo, the plaintiffs 

received two different diagnoses of their son’s medical condition in a twenty-four hour period. 

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Third, Defendant points to no evidence to dispute Plaintiff’s contention that he 

learned about the kidney cancer on February 17, 2009, regardless of whether doctors 

had diagnosed the cancer prior to this date. (Doc. # 8, at 2.) Further, this Court is 

inclined to think that the earliest possible date that this claim could have accrued is on 

the date that the Plaintiff knew of the specific injury he alleges was caused by 

Defendant’s negligence. 

Fourth, regardless of the date Plaintiff learned he had cancer, Defendant

supplies no evidence and little legal authority explaining why, at the moment Plaintiff 

learned he had kidney cancer, he could also establish a causal connection between the 

cancer and the medical misdiagnosis that allegedly caused it. 

Therefore, because Defendant’s two alternative arguments regarding the proper 

accrual date are insufficiently supported by the evidence presented, this Court denies 

Defendant’s motion. Defendant, however, is not precluded from marshalling further 

evidence and legal authority in support of these or other defenses to liability prior to and 

at trial.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED that Defendant’s Motion to Dismiss 

(Doc. # 34) be DENIED.

Id. at 1422. Under these circumstances, the Arvayo court held that is was unreasonable not to 

inquire about the discrepancy in diagnoses. Id. Here, Plaintiff did not have contradicting 

medical diagnoses. Moreover, there is no indication that he should have suspected a different 

diagnosis or worsening medical condition simply because he experienced similar symptoms 

after the initial diagnosis of kidney stones and a urinary tract infection. 

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DATED: December 29, 2013

 BY THE COURT

 

 ______________________

 Christine M. Arguello

 United States District Judge

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