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Dann v. United States

United States District Court, E.D. Kentucky, Southern Division, London

September 5, 2017

KEVIN DANN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         Inmate Kevin Dann has filed a pro se complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (“FTCA”), and has paid the filing fee. [Record Nos. 1, 8] This matter is pending for initial review pursuant to 28 U.S.C. §§ 1915(e), 1915A. A district court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).

         I.

         Dann alleges that when he was taken into the custody of the Bureau of Prisons in 2010, he was already suffering from an injury to his left wrist due to an accident with a nail gun. Dann was told that he needed a bone graft to treat the injury after medical examination and testing confirmed that he had a broken bone in his left wrist. However, when he was taken to a hospital for the procedure to be performed in 2011, his medical records could not be located, preventing the operation from going forward. Dann contends that since that time through April 2014, BOP medical staff only provided a velcro brace for his wrist and over-the-counter medication which was insufficient to address his chronic pain.

         Dann made these same allegations in a civil rights lawsuit he filed in this Court in August 2014 pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). The Court dismissed that suit in August 2015 on several grounds, including Dann's failure to exhaust administrative remedies and his failure to demonstrate a viable Eighth Amendment claim. The Court also concluded that Dann's claims against Lt. Davis could only be asserted under the FTCA because Davis is a commissioned officer of the United States Public Health Service. Dann appealed, but the appeal was dismissed for failure to prosecute.

         Two weeks after that case was dismissed, on September 1, 2015, Dann submitted a Standard Form 95, Claim for Damage, Injury, or Death, to the BOP setting forth the same basic allegations and stating that he had been advised that surgery was no longer a viable treatment option. Dann sought $250, 000.00 in administrative settlement of his claim against the BOP. The BOP denied that request by letter dated March 3, 2016, asserting that it had provided medically-appropriate care at all times. [Record No. 4 at 1-4]

         Once the BOP denied the claim, Dann had satisfied the FTCA's exhaustion requirement set forth in 28 U.S.C. § 2675(a). Myers v. United States, 526 F.3d 303, 305 (6th Cir. 2008). Therefore, he was required to file suit within six months (by September 3, 2016) or his claim would be time barred. 28 U.S.C. § 2401(b). Dann's complaint is deemed filed on February 9, 2017, the date he mailed it [Record No. 1-2], pursuant to the prison mailbox rule.[1] As a result, Dann's complaint is untimely by more than five months.

         In the “certificate of service” filed with the complaint, Dann states that it is merely a “reproduction” of the original, which he alleges was mailed to the Court six months earlier (on August 1, 2016). [Record No. 1 at 12] In a letter to the Clerk of this Court dated January 9, 2017, Dann alleged that “several months ago” he had mailed a “motion” under the FTCA to the Court, but that he had never heard back and the Clerk had not sent back a letter advising him of the case number or providing him with a motion to proceed in forma pauperis. Dann offered no other factual support for his allegations other than his own statement.

         On January 17, 2017, the Clerk advised Dann by letter that it had no active case to associate with his letter, indicating that the Court never received the FTCA “motion” Dann claims to have mailed. [Record No. 1-1]

         II.

         Setting aside any concerns regarding the possible res judicata effect of the prior litigation, the question presented is whether Dann's alleged efforts to file suit within the limitations period, assuming them to be true, prevent his complaint from being time-barred under § 2401(b) where those efforts failed to actually result in his FTCA claims being received and filed in this Court. Resolution of that question might be more clear-cut if, as federal courts previously held, the timely filing of a FTCA complaint was a jurisdictional prerequisite to suit. But the Supreme Court has recently made clear that § 2401(b) is not a jurisdictional statute but merely a statute of limitations. Thus, the limitations period is subject to equitable tolling. United States v. Kwai Fun Wong, ___ U.S. ___, 135 S.Ct. 1625, 1632-34 (2015).

         The Court nonetheless concludes that Dann's complaint must be dismissed as time-barred. First, Dann's complaint cannot be deemed timely filed through application of equitable tolling. Dann plainly failed to file suit within the time period permitted by § 2401(b). This Court may conclude that equitable tolling applies to save an otherwise untimely complaint from dismissal. Jackson v. United States, 751 F.3d 712, 718-19 (6th Cir. 2014). Equitable tolling permits a federal court “to toll a statute of limitations when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010). However, application of equitable tolling in suits against the government should be permitted only “sparingly, and not when there has only been a garden variety claim of excusable neglect.” Chomic v. United States, 377 F.3d 607, 615 (6th Cir. 2004).

         The court considers the following factors in determining whether ...


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