Lucero v. United States ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 4, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ANTHONY J. LUCERO,
Plaintiff - Appellant,
v. No. 20-1163
(D.C. No. 1:17-CV-00797-KMT)
UNITED STATES, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
_________________________________
Anthony Lucero, proceeding pro se, appeals the district court’s grant of
summary judgment on his claims asserted against the United States under the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671–2680, stemming from an
incident at a Veterans Affairs (VA) clinic in Pueblo, Colorado. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
BACKGROUND
Lucero is a veteran of the United States Marine Corps. He suffers from
post-traumatic-stress disorder and anxiety. In 2012, he went to the VA clinic to see
his psychiatrist, Dr. Charles Bonney. Lucero was upset because he had lost a legal-
malpractice lawsuit, and he made threatening statements toward the judge and
attorneys involved in the case that prompted Dr. Bonney to call the police, to arrange
for Lucero’s admission to a nearby hospital, and to record the incident in Lucero’s
medical record.
In 2017, Lucero sued the United States, alleging Dr. Bonney had made false
statements to the hospital and law-enforcement officers in connection with the 2012
incident. Lucero further alleged that these false statements had reappeared several
times in his medical records. In his second amended complaint, Lucero asserted
three claims for relief. The first two concerned Dr. Bonney’s statements and the
impact those statements allegedly had on Lucero’s reputation, mental health, and
ability to continue his VA treatment. Lucero sought monetary damages and an
injunction ordering Dr. Bonney to correct his entries in the medical records. The
third claim for relief concerned the VA’s processing of his claim before he brought
suit.
The government moved to dismiss the third claim for lack of subject-matter
jurisdiction because Lucero had failed to exhaust his administrative remedy for that
claim. The government also explained that it would construe the first and second
claims as alleging a claim for defamation under Colorado law and that it would be
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answering those allegations separately. The district court granted the motion and
dismissed the third claim.
The government then moved for summary judgment on the remaining claims.
The district court ruled that if Lucero’s complaint asserted claims against the
government under statutes other than 38 U.S.C. § 7316 or asserted constitutional
claims for money damages, those claims must be dismissed without prejudice for
lack of subject-matter jurisdiction because the government had not waived its
sovereign immunity for those claims. The court next granted summary judgment to
the United States on Lucero’s defamation claims against Dr. Bonney1,noting (1) a
lack of any evidence that the allegedly defamatory statements had been published to
any third parties and (2) a qualified privilege to make the challenged statements.
Lucero now appeals.2
DISCUSSION
Because Lucero proceeds pro se, we construe his arguments liberally, but we
“cannot take on the responsibility of serving as [his] attorney in constructing
1
The district court allowed Lucero to maintain his claim against Dr. Bonney,
as a VA employee, under 38 U.S.C. § 7316(f). That subsection clarifies that the
exception to a waiver of sovereign immunity found at 28 U.S.C. § 2680(h) for false
statements does not apply to suits arising from the “wrongful act or omission” of a
medical provider “while in the exercise of such person’s duties in or for the [VA].”
2
Lucero has not appealed the district court’s dismissal of his third claim for
relief or the dismissal of his constitutional and statutory claims against the
government. Accordingly, any arguments related to those claims are deemed waived
and we do not consider them. See Folks v. State Farm Mut. Auto. Ins. Co., 784 F.3d
730, 737 (10th Cir. 2015).
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arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). We review the grant of summary judgment
de novo. May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019). Summary judgment
is appropriate “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. P. 56(a).
“We examine the record and all reasonable inferences that might be drawn from it in
the light most favorable to the non-moving party.” T-Mobile Cent., LLC v. Unified
Gov’t of Wyandotte Cnty., 546 F.3d 1299, 1306 (10th Cir. 2008) (internal quotation
marks omitted).
Lucero raises three arguments on appeal: (1) Dr. Bonney repeatedly published
false statements in his medical records; (2) summary judgment was premature
because there was reason to doubt the credibility of Dr. Bonney’s declaration, which
the United States submitted in support of its motion; and (3) the defendants violated
his rights under the Health Insurance Portability and Accountability Act (HIPAA).
Regarding the first argument, under Colorado defamation law, a plaintiff must
show publication to a third party. See Williams v. Dist. Ct., 866 P.2d 908, 911 n.4
(Colo. 1993). But Lucero has not alleged that Dr. Bonney shared the allegedly
defamatory progress notes with anyone outside the VA. See R. Vol. 2 at 103:20–23.
And Lucero has offered no evidence controverting the United States’ assertion in its
motion for summary judgment that the challenged portions of his medical records
were ever published.
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Further, Colorado has extended a qualified privilege to a physician’s
statements made by a physician regarding diagnosis and treatment for a patient, see
Williams v. Boyle, 72 P.3d 392, 401 (Colo. App. 2003), as modified on denial of
reh’g (Feb. 6, 2003), and to reports to law enforcement about possible criminal
conduct, see Lawson v. Stow, 327 P.3d 340, 346 (Colo. App. 2014). When a
communication is subject to a qualified privilege, a plaintiff must show malice to
overcome the privilege—i.e., that “the [speaker] knew the statement was false or
acted in reckless disregard as to its veracity.” Churchey, 759 P.2d at 1347.
On appeal, Lucero expounds further upon his reasons for challenging the truth
of the statements Dr. Bonney made in his medical records. But these arguments do
not address the fundamental shortcomings of his complaint: Lucero presented no
evidence that Dr. Bonney acted with actual malice when he made notations in his
medical record or when he spoke to VA staff and law enforcement. Lucero therefore
cannot sustain a claim for defamation under Colorado law.
Lucero’s second argument on appeal fails for similar reasons. While he
presents a number of reasons why he believes Dr. Bonney was not truthful in his
summary-judgment declaration, Lucero presented no evidence that the challenged
medical records were published or that Dr. Bonney acted with actual malice. The
district court correctly concluded his defamation claim failed as a matter of law for
these reasons.
Lucero’s third argument on appeal fails because he did not raise a claim for a
HIPAA violation before the district court. See R. Vol. 1 at 81–86. This precludes
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review of such a claim before this court. Strauss v. Angie’s List, Inc., 951 F.3d 1263,
1266 (10th Cir. 2020) (“Generally, this court does not consider arguments raised for
the first time on appeal.”). And, no private right of action exists under HIPAA in any
event. See Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (“HIPAA
does not create a private right of action for alleged disclosures of confidential
medical information.”).
Finally, in his appellate briefs Lucero makes some isolated assertions of
improper judicial bias, challenges to the denial of his motion to amend his motion for
summary judgment, and criticisms of rulings related to service of process in a
different case. These arguments, though, are insufficiently developed for us to
consider, so we decline to review them. See Garrett, 425 F.3d at 841.
CONCLUSION
We affirm the judgment of the district court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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