Anthony Kontos v. United States of America et al

Filing 81

ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AMENDED COMPLAINT TO REVIVE FTCA CLAIM 75 by Judge Dean D. Pregerson: The Court GRANTS Plaintiff thirty days leave to amend his complaint to a Third Amended Complaint.After the filing of the Complaint, the Court orders the parties to attend settlement proceedings pursuant to the Courts rules. (lc). Modified on 5/17/2016 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTHONY KONTOS,

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Plaintiff,

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v.
UNITED STATES OF AMERICA, et
al.,

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Defendants.
___________________________

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Case No. EDCV 13-01398 DDP (KESx)
ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO FILE AMENDED
COMPLAINT TO REVIVE FTCA CLAIM
[Dkt. No. 75]

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Presently before the Court is Plaintiff Anthony Kontos’s
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Motion for Leave to File an Amended Complaint.

(Dkt. No. 75.)

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Plaintiff recently found counsel to represent him, leading to the
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filing of this Motion in an attempt to revive Plaintiff’s Federal
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Torts Claim Act (“FTCA”) cause of action against the United States.
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The Government opposes this motion.

(Id.)

(Dkt. No. 78.)

Finding

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this matter suitable for decision without oral argument, the Court
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adopts the following Order based on the parties’ submissions.
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I.

BACKGROUND

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This case began as a civil rights case filed by pro se
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Plaintiff Anthony Kontos.

(See generally Compl., Dkt. No. 4.)

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Plaintiff asserted claims against various defendants, including the

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United States, based on alleged violations of his Eighth Amendment

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rights.

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care when he was in federal custody.

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necessary because Plaintiff suffered a debilitating eye and face

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injury after another inmate threw a rock at Plaintiff’s eye.

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(Id.)

Plaintiff alleged he received inadequate medical
(Id.)

This medical care was

(Id.)

Plaintiff acknowledged in his original complaint that he was

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unclear on the exact legal and procedural process required to make

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his claims, stating that he was pursuing an administrative claim

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with the Federal Bureau of Prisons (“BOP”).

(Id. at 2.)

Plaintiff

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attached his FTCA Form 95 Tort Claim to his complaint.

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Plaintiff also stated that he filed the complaint so as to make

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sure he would not be time barred for his tort and Bivens claims.

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(Id. at 2-3.)

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(Id.)

The Magistrate Judge screening Plaintiff’s pro se complaint

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issued a detailed order dismissing the complaint with leave to

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amend, explaining how and what Plaintiff had to amend.

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generally Order, Dkt. No. 2.)

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Complaint thereafter.

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leave to amend based on the Magistrate Judge’s instructions.

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No. 12.)

Plaintiff then filed a Second Amended Complaint.

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No. 13.)

Then, the Magistrate Judge ordered Plaintiff to serve the

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parties the Magistrate understood to be the three remaining

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Defendants: Sterling, Quinn, and Ortiz.

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issues with service, Plaintiff served these three individuals, as

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well as serving the U.S. Attorney General, the U.S. Attorney in Los

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Angeles, California, and the prison where the events at issue in

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the case occurred.

(See

Plaintiff filed a First Amended

(Dkt. No. 11.)

This was also dismissed with

(Dkt. Nos. 21, 22.)

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(Dkt. No. 15.)

(Dkt.

(Dkt.

After some

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The United States and the three individual Defendants filed

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several ex parte applications for an extension of time to respond

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to the complaint.

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filed a motion to dismiss under Federal Rule of Civil Procedure

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(“FRCP”) 12, arguing in part that the United States should be

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dismissed from the case because Plaintiff had no FTCA claims in the

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Second Amended Complaint.

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Plaintiff opposed the Motion, stating that he was confused about

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the United States’ argument because “at least to Kontos this Court

(Dkt. Nos. 24, 31, 39.)

The Defendants then

(Mot. Dismiss, Dkt. No. 38, at 11-12.)

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has made it abundantly clear the United States already was

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protected by sovereign immunity” and that the Court “explicitly

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instructed [Plaintiff] that he was not to sue the United States

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Government” in the Order dismissing Plaintiff’s original complaint.

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(Opp’n, Dkt. No. 43, at 18-20.)

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order was in error and that he “would have the Defendants know that

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had the Court not advised him thusly that he would have vigorously

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sought to sue the United States in this instant matter and should

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this court allow him to do so, Kontos would make any amendment or

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claim necessary to do so forthwith.”

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at 14.)

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Plaintiff stated he thought this

(Id. at 19-20; see also id.

The Magistrate Judge issued a Report and Recommendation on the

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motion that did not address the United States.

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Both Plaintiff and Defendants filed objections to the Report.

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(Dkt. Nos. 54, 55.)

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recommendations of the Magistrate Judge in an Order on October 15,

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2015.

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as to Defendant Sterling with leave to amend; (2) denied the motion

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as to Defendants Quinn and Ortiz; and (3) ordered Quinn and Ortiz

(Dkt. No. 49.)

This Court accepted the findings and

(Dkt. No. 61.)

This Order (1) granted the motion to dismiss

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to file an answer and Plaintiff to amend the complaint to a Third

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Amended Complaint against Sterling.

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(Id.)

The Magistrate Judge granted Defendants extensions of time to

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answer the complaint.

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December 14, 2015.

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referred to settlement.

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Plaintiff obtained counsel to represent him.

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Hac Vice Application).)

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Motion for Leave to File an Amended Complaint to Revive FTCA Claim

(Dkt. No. 65.)

(Dkt. No. 68.)

They filed their answer on

Thereafter, the case was

(Dkt. No. 69.)

In February 2016,
(See Dkt. No. 70 (Pro

Plaintiff, newly represented, filed a

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on March 17, 2016.

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this Court for proceedings.

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(Dkt. No. 78.)

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II.

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(Dkt. No. 75.)

The case was then referred to

The Government opposed the motion.

LEGAL STANDARD
FRCP 15(a) provides for leave to amend a pleading in two ways:

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(1) as a matter of right and (2) with the party’s consent or the

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court’s permission.

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freely give leave when justice so requires.”

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15(a)(2).

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liberality” in order “to facilitate decision on the merits, rather

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than on the pleadings or technicalities.”

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655 F.2d 977, 979 (9th Cir. 1981) (internal quotation omitted).

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However, “when a district court has already granted a plaintiff

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leave to amend, its discretion in deciding subsequent motions to

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amend is particularly broad.”

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992, 1003 (9th Cir. 2002) (internal quotation omitted).

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Fed. R. Civ. P. 15(a).

“The court should
Fed. R. Civ. P.

Leave to amend should be granted with “extreme

United States v. Webb,

Chodos v. West Publ’g Co., 292 F.3d

Despite the liberal amendment standard of FRCP 15(a), leave to

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amend “is not to be granted automatically.”

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Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).
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Jackson v. Bank of
The court “considers

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the following five factors to assess whether to grant leave to

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amend: (1) bad faith, (2) undue delay, (3) prejudice to the

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opposing party, (4) futility of amendment, and (5) whether

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plaintiff has previously amended his complaint.”

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Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir.

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2013) (internal quotation omitted).

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In re W. States

“[T]he general rule that parties are allowed to amend their

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pleadings . . . does not extend to cases in which any amendment

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would be an exercise in futility or where the amended complaint

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would also be subject to dismissal.

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court’s refusal to grant leave to amend.”

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795 F.3d 1012, 1020 (9th Cir. 2015) (internal quotation and

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citation omitted).

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if no set of facts can be proved under the amendment to the

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pleadings that would constitute a valid and sufficient claim or

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defense.”

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Cir. 1988).

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III. DISCUSSION

Futility alone can justify a
Novak v. United States,

“However, a proposed amendment is futile only

Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th

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A.

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Plaintiff argues that the Court should grant him leave to

Plaintiff’s Motion

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amend his complaint and revive his original FTCA claim.

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Amend at 1.)

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multiple complaints as ordered by the Magistrate Judge led him to

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drop his FTCA claims through confusion, despite his original

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inclusion of the claims in order to avoid a time bar and his

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subsequent exhaustion of the administrative procedures.

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Plaintiff acknowledges that the First Amended and Second Amended

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Complaints do not specifically list the FTCA claims after the

(Mot.

Plaintiff’s two-year pro se process of writing

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(Id.)

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Magistrate Judge’s first order to amend the complaint.

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But the complaints do include the United States as a Defendant and

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Plaintiff did serve the complaint on the United States.

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Further, in the Motion to Dismiss, the United States is listed as a

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Defendant and Plaintiff made arguments about his FTCA claim in his

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opposition.

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2014 Minute Order regarding Plaintiff’s question about his FTCA

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claim demonstrates that Plaintiff, as a pro se Plaintiff amending

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his complaints various times, was confused as to the status of his

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(Dkt. No. 43, at 14, 18-20.)

(Id. at 2.)

(Id.)

The Court’s October 29,

FTCA claim, but never intended to waive it.

(See Mot. Amend at 3.)

Plaintiff argues that he properly filed his administrative

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claim with the BOP, which he attached to his original complaint.

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(Id. at 4.)

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original complaint that six months had passed since Plaintiff filed

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his administrative complaint.

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six-month time period had been completed during the time that this

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case was pending and going through two years of complaint

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amendments.

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prejudice to the United States here because the Government was

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always named as a Defendant, the facts underlying the causes of

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action are the same, and service was completed on the United

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States.

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no prejudice done to Defendant United States if Plaintiff is

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allowed to amend his complaint and reassert his FTCA claims.

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at 6.)

However, Plaintiff did not state in his pro se

(Id. at 4-5.)

(Id.)

(Id.)

Plaintiff argues that the

Plaintiff claims that there is no

Thus, injustice to Plaintiff would be avoided and

(Id.

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B.

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The United States argues that any amendment would be futile

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Defendant’s Opposition

because Plaintiff’s FTCA claims are time barred; thus, leave to
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amend should be denied.

(Opp’n at 1.)

The FTCA has both an

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administrative exhaustion requirement (28 U.S.C. § 2675(a)) and a

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statute of limitations requirement (28 U.S.C. § 2401(b)).

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According to Defendant, these requirements provide the window for

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filing a suit under the FTCA for a common law tort action based on

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the actions of federal employees in the scope of their employment.

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(See Opp’n at 1.)

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present the claim administratively; until the agency finally denies

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the claim, no civil action can be filed.

Under this scheme, a plaintiff must first

(Id. at 2.)

After the

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claim is denied, the action must be filed in federal court within

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six months or the cause of action is barred.

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(Id.)

Here, Defendant argues, Plaintiff submitted his administrative

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tort claim on June 21, 2013.

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Thus, Defendant argues that Plaintiff had to wait until his claim

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was denied by the agency or at least six months had passed before

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filing in district court.

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filed his original complaint on August 20, 2013, which was too soon

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under the administrative exhaustion requirement.

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filings were his First Amended Complaint on October 24, 2013, and

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his Second Amended Complaint on December 5, 2013.

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months after Plaintiff presented his administrative claim would

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have been December 21, 2013, and thus all these complaints were

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still premature.

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(Id. (citing Dkt. No. 4 at 11.)

(Id. (citing § 2675(a)).)

Plaintiff

Plaintiff’s next

However, six

(Id.)

On May 14, 2014, the BOP denied Plaintiff’s administrative

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tort claim, and thus he had six months from this date to file his

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complaint under the FTCA in federal court.

(Id. at 3.)

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window closed on November 14, 2014.

Plaintiff referenced

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his FTCA claim in his opposition to Defendants’ Motion to Dismiss,
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(Id.)

This

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but indicated that he did not have an active FTCA claim at that

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time.

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could have sought leave to amend his complaint to add the FTCA

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claim as his claim was now administratively exhausted.

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3.)

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time barred.

(Dkt. No. 43, at 14, 18-20.)

Defendant argues Plaintiff

(Opp’n at

However, Plaintiff failed to do so and thus the claim is now

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(Id.)

Further, Defendant argues that Plaintiff is not subject to

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equitable tolling.

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tolling does apply to the FTCA statute of limitations.

(Id.)

Defendant acknowledges that equitable
(Id. at 4

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(citing United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638

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(2015)).)

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not apply in this case because Plaintiff cannot establish he

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pursued his rights diligently or that extraordinary circumstances

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occurred here to prevent Plaintiff from timely filing.

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(citing Menominee Indian Tribe of Wisc. v. United States, 136 S.

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Ct. 750 (2016)).)

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knowledge or misunderstanding the Magistrate Judge’s orders are

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insufficient reasons to show cause for equitable tolling.

However, Defendant argues that equitable tolling does

(Id. at 4-5

The Government argues that lacking legal

(Id.)

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C.

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In Reply, Plaintiff asserts that equitable tolling is

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applicable here and is widely available in FTCA suits under the

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Supreme Court’s decision in Kwai Fun Wong.

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4-6.)

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in Kwai Fun Wong because that plaintiff also missed the statute of

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limitations due to multiple procedural filings and a pending

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motion.

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Tribe case is dissimilar to his case because there is no indication

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that Plaintiff was anything other than diligent in pursuing his

Plaintiff’s Reply

(Reply, Dkt. No. 80, at

Plaintiff argues that his facts are similar to the plaintiff

(Id. at 6.)

Plaintiff argues that the Menominee Indian

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rights.

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mistakes like the Tribe had (it failed to present its claim based

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on a legal mistake); instead, Plaintiff had included the FTCA claim

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and said he intended to preserve it in his opposition to the Motion

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to Dismiss.

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Most importantly, Plaintiff claims, there is no indication or

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argument that the Government would be prejudiced by allowing

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equitable tolling in this instance.

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D.

(Id. at 6-8.)

Plaintiff argues that he did not make

(Id. at 6-8; see also Opp’n, Dkt. No. 43, at 19-20.)

(Reply at 8-9.)

Court’s Analysis

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The Court holds that leave to amend should be granted here.

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The Government has been aware of this case since it was properly

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served in 2014.

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exhaustion requirement and had this case pending when that

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administrative procedure was completed.

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defendant in this case at that time, as indicated in its arguments

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in the Motion to Dismiss.

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be any prejudice to the United States by allowing Plaintiff leave

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to amend because the United States has been on notice of this cause

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of action and had a chance to address the claim in the

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administrative proceedings.

Plaintiff complied with the FTCA’s administrative

The Government was a

There is no indication that there would

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Further, in his Opposition to Defendants’ Motion to Dismiss,

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Plaintiff explicitly asked for leave to amend in order to add the

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FTCA claim if that was what was needed to preserve it.

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43, at 19-20 (“Kontos would have the Defendants know that had the

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Court not advised him thusly that he would have vigorously sought

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to sue the United States in this instant matter and should this

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court allow him to do so, Kontos would make any amendment or claim

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necessary to do so forthwith.”) (emphasis added).)
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(Dkt. No.

The Magistrate

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Judge’s Report and Recommendation did not address this point or the

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United States’ part in the case; neither did this Court’s Order

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accepting the findings and recommendations of the Magistrate Judge.

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During the time that Plaintiff was waiting for the Court’s order on

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these matters, Plaintiff’s FTCA statute of limitations expired

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before he could amend his complaint and allege his exhausted claim.

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This is similar to the facts in Kwai Fun Wong.

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Thus, the doctrine of equitable tolling is appropriate in this
case.

There is no indication that Plaintiff was anything other

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than diligent in pursuit of this action.

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challenging for all pro se plaintiffs faced with strict procedural

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requirements and challenging rules of law that control who and how

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to sue.

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perfect his complaint and to respond to the Defendants’ Motion to

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Dismiss.

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assert his claim based on a nonbinding legal decision as was found

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in the Menominee Indian Tribe case, or made some other negligent

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legal error.

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equitably tolls Plaintiff’s FTCA statute of limitations so that

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Plaintiff can reassert the FTCA cause of action now.

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These kinds of suits are

Here, Plaintiff worked with the Magistrate Judge to

The Government has not shown that Plaintiff failed to

Therefore, to the extent necessary, the Court

Now that Plaintiff has counsel, Plaintiff should be allowed to

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amend his complaint, particularly as no Scheduling Order has been

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issued in this case, there has been no undue delay, there is no

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showing of prejudice to the Government, there is no allegation of

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bad faith, and amendment would not be futile.

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IV.

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CONCLUSION
Therefore, the Court GRANTS Plaintiff thirty days leave to

amend his complaint to a Third Amended Complaint.
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Plaintiff may

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reassert his FTCA claim.

After the filing of the Complaint, the

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Court orders the parties to attend settlement proceedings pursuant

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to the Court’s rules.

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IT IS SO ORDERED.

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Dated: May 17, 2016
DEAN D. PREGERSON
United States District Judge

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