ADDERSON et al v. UNITED STATES OF AMERICA

Filing 13

ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction. The Clerk is directed to close the case. Signed by JUDGE RICHARD SMOAK on 7/16/2013. (jem)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ALBERT ADDERSON, et al.,
Plaintiffs,

CASE NO. 5:12-cv-395-RS-CJK

v.
UNITED STATES OF AMERICA,
Defendant.
_________________________________________/
ORDER
Before me are Defendant’s Motion to Dismiss (Doc. 8), Plaintiffs’ Response
to Defendant’s Motion to Dismiss (Doc. 9), and Defendant’s Response to
Plaintiffs’ Response to Defendant’s Motion to Dismiss (Doc. 12). For the reasons
below, Defendant’s Motion to Dismiss is granted.
Standard of Review
To overcome a motion to dismiss, a plaintiff must allege sufficient facts to
state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is clear that
no relief could be granted under any set of facts that could be proven consistent
with the allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69,
104 S. Ct. 2229, 2232 (1984). I must construe all allegations in the complaint as
true and in the light most favorable to the plaintiff. Shands Teaching Hosp. &

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Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) (citing
Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir. 1999)).
Background
The Defendant Bureau of Prisons employed Plaintiffs or Plaintiffs’ spouses
or parents (“Plaintiffs”) at the Federal Correctional Institute (“FCI”) located in
Marianna, Florida, from as early as 1991 until as recently as the present. (Doc. 8,
p. 4). UNICOR industries was engaged in a private business of electronic
recycling on the FCI premises. (Doc. 1, p. 3; Doc. 9, p. 2). Plaintiffs allege
personal exposure to toxic materials, including, but not limited to, lead, cadmium,
beryllium, and mercury. (Doc. 1, pp. 3-4). The alleged exposure was caused by
dust from the recycling plant pervading other parts of the prison and from contact
with inmates’ clothing while “shaking down” inmates for weapons and other
dangerous items. Id. Plaintiffs seek compensation for damages under the Federal
Tort Claims Act (FTCA). (Doc. 1, p. 1).
This court has previously barred claims by similarly situated Plaintiffs, who
were employees at FCI, because the Federal Employees’ Compensation Act
(FECA) provided an exclusive remedy. Oct. 10, 2012, Order pp. 4-9, Bailey v.
United States, No. 5:12-cv-104-RS-CJK (Smoak, J.); Sept. 12, 2012, Order pp. 48, Anderson, et al., v. United States, No. 5:12-cv-102-RS-CJK (Smoak, J.).

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Between June 7, 2011, and December 22, 2011, all Plaintiffs filed
administrative claims with Defendant. (Doc. 8, pp. 4-5). Defendant issued
Plaintiffs denial letters November 30, 2012, May 14-15, 2012, and June 11, 2012.
Id. Defendant moves to dismiss Plaintiffs’ claim for tolling of the statute of
limitations allowed under FTCA.
Analysis
Defendant contends this court lacks subject matter jurisdiction over
Plaintiffs’ claims because (1) Plaintiffs commenced this action on December 14,
2012, more than six months after Defendant had denied their administrative claims,
and (2) FECA’s exclusive remedy provision bars six Plaintiffs’ claims (5 U.S.C. §§
8101-8193). First, I address the timeliness of this action under FTCA.
FTCA provides, “[a] tort claim against the United States shall be forever
barred unless . . . action is begun within six months after the date of mailing, by
certified or registered mail, of notice of final denial of the claim by the agency to
which it was presented.” 28 U.S.C. § 2401(b). The Eleventh Circuit has ruled,
“[the FTCA] must be strictly construed. . . . For claims brought under the FTCA,
Congress has expressly stated the applicable limitation period.” Phillips v. United
States, 245 F.3d 1316, 1318 (2001).
Plaintiffs contend the untimely filing is excusable because the present case
merits equitable tolling. Specifically, Plaintiffs allege Defendant withheld

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information when Defense counsel did not wholly comply with requests to produce
necessary correspondence essential to litigation.
S.R.v. United States provides guidance on the Supreme Court’s standard for
equitable tolling: “[S]ituations where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass.” 555 F. Supp. 2d 1350, 1358 (S.D. Fla.
2008)(citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).
Moreover, “[T]he principles of equitable tolling . . . do not extend to what is at best
a garden variety claim of excusable neglect.” Id.
Plaintiffs did not file a complaint within the six month timeline allotted by
FTCA. Nor is there any evidence that in failing to produce documents Defendant
induced or tricked Plaintiffs into allowing the filing deadline to pass. See id. Even
if Defendant failed to comply with pre-complaint production requests as Plaintiffs
allege, such failure is at worst neglect. Equitable tolling does not extend to
excusable neglect. Therefore Plaintiffs’ claims are barred by untimely filing in
accordance with FTCA.
Because all claims are barred by FTCA statute of limitations, I decline to
address whether any claims are barred by FECA.

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Conclusion
For the above reasons, Defendant’s Motion to Dismiss is GRANTED. The
Clerk is directed to close the case.

ORDERED on July 16, 2013.

/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE