United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
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).
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.
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.
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
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. As a result, Dann's complaint is
untimely by more than five months.
“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.
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]
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).
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).
court considers the following factors in determining whether