Benitez v. United States of America
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS re 10 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/24/2014. "1. The United States' Motion to Dismiss for Benitez's failure to exhaust administrative tort remedie s under the FTCA is GRANTED. Benitez's Complaint and action are DISMISSED. 2. The Clerk of Court SHALL enter judgment and close the case file. 3. The court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Proce dure 24(a)(3)(A), that an appeal of this decision would not be taken in good faith." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Ildefonso Benitez served by first class mail at the address of record on June 24, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
CIV. NO. 13-00668 SOM/RLP
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Plaintiff Ildefonso Benitez is a federal prisoner
incarcerated at the Federal Correctional Institution in Oakdale,
Plaintiff alleges that, while he was
incarcerated at the Federal Detention Center in Honolulu (“FDCHonolulu”), prison staff negligently assigned him to an upper
tier cell and upper bunk on or about March 7, 2010, despite their
knowledge that he had a seizure condition.
and fell that same day.
Benitez had a seizure
He alleges that this upper cell and bunk
assignment is the direct cause of the injuries he sustained
during that seizure.
He seeks relief under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq.
Before the court is the United States of America’s
Motion to Dismiss Benitez’s action for his failure to timely
exhaust FTCA administrative tort remedies with the Federal Bureau
of Prisons (“BOP”) within two years of the accrual of his claims.
Def.’s Mot., Doc. No. 10.
The United States claims that
Benitez’s failure to exhaust these remedies deprives the court of
subject matter jurisdiction.
Benitez has opposed the Motion,
Doc. Nos. 16 and 25, and the United States has replied, Doc. No.
Defendant’s Motion is GRANTED because, although exhaustion
is not an issue of subject matter jurisdiction, see Wong v.
Beebe, 732 F.3d 1030, 1033-34 (9th Cir. 2013), it is clear that
Benitez failed to exhaust required administrative remedies before
commencing this action and is not entitled to equitable tolling
of the statute of limitation.
I. LEGAL STANDARDS
“The Prison Litigation Reform Act [“PLRA”] requires
that a prisoner exhaust available administrative remedies before
bringing a federal action concerning prison conditions.”
v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C.
§ 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005)
(quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)).
“‘[T]he PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong.’”
Bennett v. King, 293 F.3d 1096, 1098 (9th
Cir. 2002) (quoting Porter, 534 U.S. at 532).
mandatory, and “unexhausted claims cannot be brought in court.”
Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311
F.3d 1198, 1199 (9th Cir. 2002) (per curiam).
Even if the
prisoner seeks monetary or other relief that is unavailable
through the grievance system in question, the prisoner must still
exhaust all available administrative remedies.
See Booth v.
Churner, 532 U.S. 731, 741 (2001).
In addition, the PLRA requires that a prisoner
“properly” exhaust administrative remedies before filing suit in
Woodford v. Ngo, 548 U.S. 81, 92 (2006).
exhaustion demands compliance with an agency’s deadlines and
other critical procedural rules because no adjudicative system
can function effectively without imposing some orderly structure
on the course of its proceedings.”
Id. at 90–91.
requirement is intended to “eliminate unwarranted federal-court
interference with the administration of prisons, and thus seeks
to ‘affor[d] corrections officials time and opportunity to
address complaints internally before allowing the initiation of a
Id. at 93 (quoting Nussle, 534 U.S. at 525).
Section 1997e(a) does not impose a pleading
requirement, but provides an affirmative defense under which
defendants have the burden of raising and proving the absence of
Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003).
In deciding a motion to dismiss for
failure to exhaust administrative remedies, the court may look
beyond the pleadings and decide disputed issues of fact.
315 F.3d at 1119-20.1
BOP Administrative Remedy Procedures
“The purpose of the Administrative Remedy Program is to
allow an inmate to seek formal review of an issue relating to any
aspect of his/her own imprisonment.”
28 C.F.R. § 542.10(a).
BOP grievance procedure is set forth in 28 C.F.R. § 542.13-15.
Inmates must first informally present their complaints to prison
staff using a BP-8 form.
Id. at § 542.13(a).
If the informal
complaint is not resolved, the inmate may make an “Administrative
Remedy Request” to the Warden using a BP-9 form.
The BP–8 and
BP–9 forms are linked; both refer to a complaint arising out of
the same incident, and both forms must be submitted within twenty
calendar days of the date of that incident.
Extensions of time are available upon a showing of
a valid reason for delay, including incapacity, extended transit,
or delays in informal resolution.
See 28 C.F.R. § 542.14.
the Warden renders an adverse decision, the inmate may appeal to
the Regional Director within twenty calendar days using a BP-10
Id. at § 542.15(a).
If the inmate is still dissatisfied,
he may appeal to the General Counsel (Central Office) within
thirty calendar days from the date of the Regional Director’s
Benitez was given notice on how to defend against such a
motion and an opportunity to supplement his response. See Doc.
Nos. 23; Woods v. Carey, 684 F.3d 934, 936 (9th Cir. 2012).
The Regional Director has thirty calendar days to
respond, and the General Counsel has forty calendar days to
address the inmate’s concern.
Id. at § 542.18.
“If an inmate raises an issue in a request or appeal
that cannot be resolved through the Administrative Remedy
Program, the Bureau will refer the inmate to the appropriate
Id. at § 542.10(c).
administrative remedy appeal is considered to have been fully
exhausted until it is decided by the Central Office.
§ 542, et seq.
That is, to fully exhaust, a prisoner must appeal
through all appropriate levels to the last level of review.
Nunez v. Duncan, 591 F.3d 1217, 1228 (9th Cir. 2010); Nigro v.
Sullivan, 40 F.3d 990, 993 (9th Cir. 1994) (holding prisoner’s
failure to file timely appeal at highest level of review
constituted procedural default of his claim)
Administrative Exhaustion Under the FTCA
The FTCA requires timely exhaustion of administrative
remedies with the appropriate federal agency before commencement
of a tort action against the government.
28 U.S.C. § 2675(a);
McNeil v. United States, 508 U.S. 106, 113 (1993).
U.S.C. § 2401(b), a plaintiff bringing an FTCA claim against the
United States must first file an administrative claim with the
appropriate agency “within two years after such claim accrues.”
28 U.S.C. § 2401(b).
“Otherwise, it is ‘forever barred.’”
Gallardo v. United States, 2014 WL 2462804, at *4 (9th Cir. June
3, 2014); see also Wong v. Beebe, 732 F.3d 1030, 1033-34 (9th
Cir. 2013) (en banc) (holding that FTCA claims are nonjurisdictional and subject to equitable tolling).
accrues under the FTCA “once a plaintiff becomes aware of [his]
injury and its immediate cause.”
Id. (citing United States v.
Kubrick, 444 U.S. 111, 122 (1979)).
In Kubrick, the Supreme
Court explicitly declined to “hold that Congress intended that
‘accrual’ of a claim must await awareness by the plaintiff that
his injury was negligently inflicted.”
Id. at 123.
On or about March 4, 2010, Benitez, then a pretrial
detainee, informed FDC-Honolulu medical personnel that he had
been diagnosed with a seizure condition and had been taking
seizure medication since this diagnosis.
See Def.’s Ex. J, BOP
Clinical Notes, Doc. No. 10-12, PageID #97, #99.
unsure when his last seizure had occurred.
Benitez and his
attorney also alerted FDC staff to his condition before he
arrived at the prison.
Compl., Doc. No. 1, PageId #3.
On March 7, 2010, when Benitez was being moved to his
new cell, he again told FDC Honolulu staff about his seizure
condition and requested a ground-floor cell and lower bunk to
reduce his risk of injury in the event he had a seizure.
Benitez alleges that FDC-Honolulu staff ignored his
request and assigned him to a second-floor cell and an upper
bunk, despite knowledge of his condition and his alleged lack of
Id. (stating their “conduct occurred despite being
notified that [he] had seizure[s], and [he was] without a single
Benitez claims that after FDC-Honolulu staff left his
cell, he suffered a “crippling seizure” and fell from the top
He says other inmates “rushed [him] out of the cell,
with no staff around, [and he] fell again.”2
his head on the stair rail and lost consciousness, but other
inmates allegedly prevented him from falling over the rail.
Benitez claims that FDC-Honolulu staff failed to immediately
render him aid, although he “was rushed to the Hospital
Id. PageID #6.
Benitez sustained injuries to his
head and right eye, and remained hospitalized for five days.
at PageID #6; see also Def.’s Ex. J, Doc. No. 10-12, PageID #104
(noting Benitez had a laceration over his right eye).
cell was searched immediately after the incident, Phenytoin3 and
ibuprofen were found in his cell, but Benitez was unable to
In his Supplemental Response, Benitez says he fell from
his upper bunk and “also fell the following morning while
tr[y]ing to walk down to the inmate common area.” Pl. Supp. Br.,
Doc. No. 25, PageID #156-57.
“Phenytoin is used to control certain types of seizures.”
Medline Plus, National Institutes of Health,
recall if he had taken this medication before his seizure.
Def.’s Ex. J, PageID #102.
He complains that his head injury
“continues to rob [him] of peace of mind” and he “suffers
excruciating frequent pain in [his] right eye.”
Compl., Doc. No.
1, PageID #6.
On September 2, 2010, approximately six months after
his fall, Benitez pled guilty in United States v. Benitez, Cr.
No. 10-00091(3) JMS.
See Doc. Nos. 89, 90.
During the course of
his guilty plea, the following exchange took place:
THE COURT: And have you taken any medication,
alcohol, or drugs of any kind today?
THE DEFENDANT: Medication.
THE COURT: All right. And this is for -prescribed to you by a doctor, is that
THE DEFENDANT: Yes.
THE COURT: And for what kind of ailment?
THE DEFENDANT: Seizures.
THE COURT: All right. And is it -- and does
it prevent you from making decisions or
making it difficult for you to understand
what’s going on?
THE DEFENDANT: No.
THE COURT: All right. And have you been
treated recently for any type of mental
illness or addiction to narcotic drugs of any
THE DEFENDANT: No.
THE COURT: Mr. Edwards, to the best of your
knowledge, is your client competent to enter
a valid plea today?
MR. EDWARDS: Yes.
Id., Tr. of Withdrawal of Guilty Plea, September 2, 2010, Doc.
No. 157, PageID #512-13 (emphasis added).
Leslie Kobayashi found that Benitez was fully competent and that
he was knowingly, intelligently, and voluntarily pleading guilty.
See Report and Recommendation, Doc. No. 91.
District Judge J. Michael Seabright accepted Benitez’s guilty
plea on September 27, 2010.
Doc. No. 93.
Benitez remained at FDC-Honolulu until on or about June
See Def.’s Ex. H, Doc. No. 10-10.
He was temporarily
housed at the Federal Transfer Center in Oklahoma City.
or about July 1, 2011, he was transferred to FDC-Oakdale.
August 23, 2012, he was assigned to FCI-Oakdale.
Twenty-seven months after his fall, on June 21, 2012,
Benitez filed a
grievance at FDC-Oakdale regarding his March 7,
2010, fall at FDC-Honolulu.
Def.’s Ex. K, Doc. No. 10-13, PageID
It was rejected on the ground that Benitez had failed to
pursue informal resolution while he was still incarcerated at
See id.; see also Doc. No. 10-4, Def.’s Ex. B,
On July 17, 2012, Benitez wrote the FDC-Honolulu
Warden to attempt to grieve his claim.
He claimed that his
placement on the top tier and in an upper bunk constituted
deliberate indifference to his safety in violation of the Eighth
Amendment; he sought $1 million in damages.
Id., PageID #77.
The Warden responded on August 24, 2012, by explaining
that the BOP’s grievance program does not provide monetary relief
for prisoners’ complaints.
He told Benitez to file a claim under
the FTCA, and provided him with the information he needed to
begin FTCA administrative procedures.4
Approximately seven weeks later, on or about October
14, 2012, Benitez completed an FTCA administrative tort claim
form; it was mailed on October 18, and received on October 19,
Id. PageID #72-75.
On May 29, 2013, the BOP denied
Benitez’s FTCA administrative tort claim.
See Def.’s Ex. E,
The BOP found that Benitez’s claim had accrued on
March 7, 2010, and was therefore untimely because it was
submitted more than two years later.
See 28 U.S.C. § 2401(b).
On June 8, 2013, Benitez requested reconsideration of
Doc. No. 10-8, Def.’s Ex. F.
He alleged that,
although he continued to be treated after his injury on March 7,
2010, his right eye only began to cause him pain on or about May
“[a]t that point, [he] ‘knew both the
fact of [in]jury and its immediate physical cause.’”5
Benitez apparently pursued all levels of the BOP grievance
program, and his claim was ultimately rejected on January 14,
2013. See Def.’s Ex. K, Doc. No. 10-13, PageID #108.
Benitez also attests, that he only “became conscious of my
health problem as a consequence of my accident” after he arrived
On June 21, 2013, the BOP denied Benitez’s request
for reconsideration and informed him that the May 29, 2013,
denial of his claim was the final determination.
Def.’s Ex. G.
Three months later, on September 9, 2013, Benitez,
proceeding pro se, moved for a reduction in his sentence in CR.
No. 10-00091 JMS, pursuant to Rule 35 of the Federal Rules of
Id., Mot. for Specific Performance, Doc. No.
On September 27, 2013, the trial court denied Benitez’s
Doc. No. 165.
On October 25, 2013, he appealed.
On June 9, 2014, the Ninth Circuit Court of Appeals
dismissed the appeal as untimely.
Doc. No. 175.
On November 14, 2013, Benitez signed the Complaint in
the present action.
See Compl., Doc. No. 1.
It was filed in the
District Court for the Eastern District of California on November
21, 2013, and transferred to this court on December 3, 2013.
Doc. No. 4.
Benitez seeks relief under the FTCA, alleging that
Defendant negligently assigned him an upper tier cell and a top
bunk despite knowledge of his seizure condition and his potential
at FDC-Oakdale “on August 23, 2012,” Pl.’s Aff., Doc. No. 17,
PageID #137. Yet he originally asserted venue in the Eastern
District of California because his “Medical Conditions Originated
in this Area.” Compl., Doc. No. 1, PageID #2.
The Parties’ Arguments
The Government argues that Benitez’s claim accrued on
March 7, 2010, the date that he fell and injured himself at FDCHonolulu.
It asserts that, because Benitez failed to present an
administrative tort claim until October 14, 2012, approximately
two years and seven months after he was aware of his injury, and
articulates no justifiable basis for equitable tolling of the
statute, his claims are time-barred.
Benitez concedes that he filed his administrative tort
claim more than seven months late.
He asserts, however, that he
is entitled to equitable tolling of the statute of limitation
because he was over-medicated by BOP health care providers for no
less than “one year and a half” after the March 7, 2010,
Pl.’s Response, Doc. No. 16, PageID #118.
argues that this alleged over medication caused “a noticeable
dizziness and grogginess that affected him in his ability to be
conscious of reality and time.”
He claims that “it was not
until August, 2012, . . . that he was able to be conscious about
his medical situation and able . . . to diligently begin his
Neither party addresses whether Benitez exhausted the
BOP’s prison grievance procedure, set forth at 28 C.F.R.
§ 542.13–15, and the court declines to address this issue.
He also alleges that his lack of
English proficiency prevents him “from complying and/or timely
respond, present and/or adequately put forward documentation that
is required and n[e]cessary in a legal matter like the present
Pl.’s Aff., Doc. No. 17, PageID #137-38.
As noted, a cause of action under the FTCA generally
accrues when “a plaintiff becomes aware of [his] injury and its
U.S. at 122.
Gallardo, 2014 WL 2462804, at *4; Kubrick, 444
The two-year time limit for filing an FTCA
administrative claim pursuant to 28 U.S.C. § 2401(b) may be
subject to equitable tolling, however.
See id., at *5; Wong, 732
F.3d at 1033, 1038, 1049 (holding that § 2401(b) is not
jurisdictional and that equitable tolling is available to FTCA
“‘Generally, a litigant seeking equitable tolling bears
the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way.’”
Credit Suisse Sec.(USA) LLC v.
Simmonds, 132 S. Ct. 1414, 1419 (2012) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); Wong, 732 F.3d at 103334; see also Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).
“August 2012" is actually twenty-eight months, or two and
a half years, after his accident.
A sufficiently serious mental impediment may constitute
an “extraordinary circumstance” beyond a prisoner’s control for
purposes of equitable tolling.
Bills v. Clark, 628 F.3d 1092,
1097 (9th Cir. 2010) (Ninth Circuit has “long recognized
equitable tolling in the context of a petitioner’s mental
In the analogous context of a habeas corpus petition,
a prisoner seeking equitable tolling because of mental impairment
must meet a two-part test:
(1) First, a petitioner must show his mental
impairment was an “extraordinary
circumstance” beyond his control . . . by
demonstrating the impairment was so severe
(a) petitioner was unable rationally or
factually to personally understand the
need to timely file, or (b) petitioner’s
mental state rendered him unable
personally to prepare a habeas petition
and effectuate its filing.
(2) Second, the petitioner must show
diligence in pursuing the claims to the
extent he could understand them, but that the
mental impairment made it impossible to meet
the filing deadline under the totality of the
circumstances, including reasonably available
access to assistance.
Id. at 1099–1100 (citations, footnote, and original emphasis
To evaluate an equitable tolling claim,
the district court must: (1) find the
petitioner has made a non-frivolous showing
that he had a severe mental impairment during
the filing period that would entitle him to
an evidentiary hearing; (2) determine, after
considering the record, whether the
petitioner satisfied his burden that he was
in fact mentally impaired; (3) determine
whether the petitioner’s mental impairment
made it impossible to timely file on his own;
and (4) consider whether the circumstances
demonstrate the petitioner was otherwise
diligent in attempting to comply with the
Id. at 1100–01.
Regarding diligence, “the petitioner must
diligently seek assistance and exploit whatever assistance is
Id. at 1101.
“[A] petitioner’s mental
impairment might justify equitable tolling if it interferes with
the ability to understand the need for assistance, the ability to
secure it, or the ability to cooperate with or monitor assistance
the petitioner does secure.
The petitioner therefore always
remains accountable for diligence in pursuing his or her rights.”
Id. at 1100.
A Spanish-speaking pro se prisoner’s lack of access to
Spanish-language legal materials or a translator may be grounds
for equitable tolling.
See Mendoza v. Carey, 449 F.3d 1065, 1067
(9th Cir. 2006) (remanding to district court for evidentiary
hearing to determine whether equitable tolling was warranted when
petitioner’s alleged inability to file timely was caused by lack
of access to legal materials in Spanish or to translator).
However, “a non-English-speaking petitioner seeking equitable
tolling must, at a minimum, demonstrate that during the running
of the . . . time limitation, he was unable, despite diligent
efforts, to procure either legal materials in his own language or
translation assistance from an inmate, library personnel, or
Id., 449 F.3d at 1170 (emphasis added).
It is undisputed that Benitez was aware of his injury
and its cause on March 7, 2010.
He also admits he was aware that
he received treatment for the fall thereafter.
See Pl’s Request
for Reconsideration, Doc. 10-8, PageID #87 (stating, “[a]fter the
incident in March 2010, I continued treatment and felt better.”).
The issue is whether Benitez was prevented from filing an FTCA
administrative claim within two years of his injury because he
was over-medicated by prison medical providers, and thus mentally
impaired, and because he was not proficient in English.
Benitez’s burden to prove both elements of the equitable tolling
doctrine: extraordinary circumstances preventing timely filing,
and his own diligence.
The United States is not required to
disprove his claimed entitlement to equitable tolling.
the court accepts that Benitez makes a nonfrivolous claim
regarding his mental impairment, and possibly his lack of English
proficiency, the record and Benitez’s unsupported conclusions are
insufficient to meet his burden of showing entitlement to
equitable tolling for his claim.
Benitez’s Attorney’s Letters
On June 2 and August 9, 2010, Benitez’s attorney wrote
the FDC-Honolulu Medical Department on Benitez’s behalf to
register Benitez’s concerns regarding his medical treatment.
Pl.’s Exs., Doc. 16-1, PageID #121-22.
Benitez had “express[ed]
concern” to his attorney that he was prescribed “as many as 15
pills, twice a day, for his seizure condition,” and his
medication was “not like those he received from the physicians
who treated him on Kauai.”
Benitez also told his attorney
that FDC-Honolulu medical staff ignored his complaints regarding
chronic pain and swelling in his joints.
At his attorney’s
recommendation, Benitez completed a medical release and submitted
it to FDC-Honolulu so that prison medical staff could confer with
his private physicians.
Id., PageID #122.
These letters show that Benitez was aware of his
treatment and medical needs during the months immediately
following his accident.
He actively sought his attorney’s
assistance to intercede with FDC-Honolulu medical personnel for
more effective dosages for his seizures and other medical
Despite his alleged language difficulties and over-
medication, he was able to complete forms and follow directions
Benitez therefore cannot be said to have been unable
to understand the need to file an administrative tort claim or to
have lacked the ability to prepare such a claim himself or to
seek assistance in filing a claim during this period.
628 F.3d 1092.
Benitez’s Declarations in CR. No. 10-00091 JMS
This court’s independent review of Benitez’s federal
criminal proceeding further reveals no basis for finding that he
was mentally incompetent or unable to understand English between
at least March and December 2010.
Neither Benitez nor his
attorney ever requested a Spanish interpreter during his criminal
See generally, Cr. No. 10-00091 JMS.
appeared at his initial appearance, detention hearing,
arraignment, two change of plea hearings, and sentencing without
requesting an interpreter.
Then, on September 2, 2010, six
months after his accident, Benitez stated in English, under oath,
that the medication he was taking for his seizure condition did
not impair his ability to make decisions or understand his
See Cr. No. 10-00091 JMS, Tr. of
Withdrawal of Guilty Plea, September 2, 2010, Doc. No. 157,
Benitez’s attorney also affirmed that, to his
knowledge, Benitez was competent to enter a valid guilty plea.
Id.; see United States v. Rivera, 517 Fed. Appx. 596, 2013 WL
1849213, at *2 (9th Cir. 2013) (finding attorney’s assurances
that the defendant was legally competent at sentencing
significant in evaluating a district court’s need to conduct a
sua sponte competency evaluation at sentencing).
contemporaneous statements made in English regarding his
competency directly contradict his claims that he was not
“conscious of reality and time,” between March 7 and, at a
minimum, September 2010, and show his understanding of English.
Pl.’s Response, Doc. No. 16, PageID #118.
Benitez did not challenge the United States Probation
Office’s presentence finding that he had lived and worked in the
United States for more than thirty years, suggesting he
At his sentencing hearing on December 20,
2010, no evidence was presented suggesting that Benitez was
incompetent to proceed or could not understand the proceeding.
Id., Doc. No. 120.
Benitez did not appeal his conviction or
challenge the knowing and voluntary nature of his guilty plea,
either for mental incompetence or for his alleged inability to
In Benitez’s Rule 35 Motion for Specific Performance,
filed on September 9, 2013, he submitted evidence showing that he
Although this document and Benitez’s Rule 35 Motion are
sealed, the court sees no reason to think that a general
reference to these documents, which are part of Benitez’s BOP and
criminal records, will jeopardize Benitez or any ongoing
Further, a finding here that Benitez was mentally
incompetent or could not understand English when he pled guilty
is barred under the doctrine of Heck v. Humphrey, 512 U.S. 477
(1994) (barring claims in civil action that call into question
the legality of a criminal conviction, unless the conviction or
sentence has been subsequently resolved in plaintiff’s favor).
is considered English proficient and attained a GED or high
He also participated in extensive educational
and vocational training between September 2010 and July 2013.
SEALED, Doc. No. 160.
This training included courses in
Literature, Spanish, Business, Mathematics, English as a Second
Language, and Ethics.
Benitez does not explain how he was able
to diligently attend courses and attain hundreds of hours of
credit while being allegedly so mentally incompetent that he
could not rationally understand the need to file an
administrative tort claim or “diligently seek assistance [to file
a tort claim] and exploit whatever assistance is reasonably
Bills, 628 F.3d at 1101.
Benitez’s Medical Records
Finally, Benitez’s medical records fail to support his
assertion that he was over-medicated to the point of mental
incompetence for almost two years after his injury.
Exs., Doc. No.16-1, PageID #123-34; Doc. Nos. 25-1 to 25-5.
Instead, they show that he was taking anti-seizure and other
medications before and after his incarceration, and that the
course of his treatment and medication dosage evolved over time
in response to his needs.
They also show that he discussed his
seizure treatment and other medical issues with prison medical
care providers many times, and that they were responsive to his
desire to control his seizures and “decrease his medication
See, e.g., Doc. Nos. 25-1 through 25-5.
On February 15, 2011, less than two months after
sentencing, FDC-Honolulu physician, James Pelton, M.D., opined
that Benitez had had “a seizure disorder for the past 5 years
. . . with head injury.
His seizures have been difficult to
control, however he is currently well controlled on 3 medications
for the past year.
His last seizure was in 3/20/2010.
that, they were about monthly. . . .
He has good energy level
and interest in his daily activities.”
Id., Doc. No. 25-3,
Benitez’s medical records show that he requested
eyeglasses at the medical clinic on September 24, 2010, and
explained that his prescription had been too mild previously for
him to qualify for eyeglasses free of charge.
He requested an
eye examination on May 23 and July 2, 2012, and was examined by
an optometrist on August 10, 2012.
PageId #121, 126, 127.
See Pl.’s Ex., Doc. No. 16-1,
He received eyeglasses thereafter.
While this may support his claim that he was
experiencing vision problems after his accident, it does not
prove that he was unaware of his injury of March 7, 2010, or
mentally incapable of filing an administrative tort claim.
Importantly, Benitez submits no expert opinion that he
was over-medicated or mentally incompetent to a degree that
prevented him from recognizing his injury and its cause and
timely filing a claim.
See McCall Wyo. Attorney Gen., 339 Fed.
Appx. 848, 850, 2009 WL 1803281, at *2 (10th Cir. June 25, 2009)
(denying equitable tolling on prisoner’s assertion that his
medication rendered him mentally incompetent, when he failed to
explain how the medication “prevented him from bringing the
claim,” and observing that “mere allegations that [petitioner]
was under the influence of medication” are insufficient to
establish an extraordinary circumstance); Robison v. Hinkle, 610
F. Supp. 2d 533, 542–43 (E.D. Va. 2009) (denying equitable
tolling because no documentation supported petitioner’s
contention that his medications’ side effects incapacitated him);
Patterson v. Adams, 2009 WL 1774296, at *3 (C.D. Cal. June 22,
2009) (finding equitable tolling unwarranted, because prisoner
“presented no evidence showing he experienced any side effects
from . . . medication”).
Benitez’s assertions regarding his alleged mental
incompetence and inability to understand English are insufficient
to carry his burden of showing that he was prevented him from
pursuing timely FTCA administrative tort claim relief.
irrelevant that the medications Benitez took have the potential
to cause confusion, although Benitez also fails to provide
evidence supporting this conclusion.
Benitez must also establish
that his medication actually impaired his ability to rationally,
factually, and personally understand his need to file a claim, or
prevented him from seeking assistance in doing so.
Benitez does not show that he is entitled to equitable
tolling of the two-year statute of limitation governing the
filing of an
administrative tort claim under the FTCA.
U.S.C. § 2401(b).
This FTCA action is, therefore, “forever
Gallardo, 2014 WL 2462804, at *4.
The United States’ Motion to Dismiss for Benitez’s
failure to exhaust administrative tort remedies under the FTCA is
Benitez’s Complaint and action are DISMISSED.
The Clerk of Court SHALL enter judgment and close the
The court certifies, pursuant to 28 U.S.C. § 1915(a)(3)
and Federal Rules of Appellate Procedure 24(a)(3)(A), that an
appeal of this decision would not be taken in good faith.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 24, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Benitez v. United States, 1:13-cv-00668 SOM/RLP; psas/Exh Ords/2014/Benitez
13-668; J:\Denise's Draft Orders\SOM\Benitez 13-668 som (dsm ftca no bop
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