Peterson v. USA et al

Filing 49

OPINION AND ORDER: 1. the Magistrate Judges Order denying any discovery-related relief (DE 39) is ADOPTED as and for the opinion of the Court; 2. the Plaintiffs objections to the Magistrate Judges Order (DE 43) are OVERRULED; 3. the Magistrate Judg es Recommended Disposition (DE 42) is ADOPTED as and for the opinion of the Court; 4. the Plaintiffs objections to the Magistrate Judges Recommended Disposition are OVERRULED 5. the Defendants Motion to Dismiss, or in the Alternative For Summary Jud gment (DE 23) is GRANTED on the basis that Plaintiffs FTCA claim is time-barred. 6. a judgement consistent with this Opinion will be entered contemporaneously.. Signed by Judge Karen K. Caldwell on 10/31/2017. (JMB)cc: COR, Stephen Desmund Peterson via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
STEPHEN DESMUND PETERSON,

CIVIL ACTION NO. 14-CV-134-KKC

Plaintiff,
V.

OPINION AND ORDER

UNITED STATES OF AMERICA,
Defendant.

*** *** ***
This matter is before the Court on the Recommended Disposition of United States
Magistrate Judge Robert E. Wier, (DE 17, at 17) and his earlier Order denying discovery (DE
32). This action was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) for all
further disposition, including preparing proposed findings of fact and recommendations on
any dispositive motions. (DE 17, at 17). Subsequently, the United States filed a Motion to
Dismiss, or in the Alternative for Summary Judgment. (DE 23). The Magistrate Judge issued
his Recommended Disposition on that motion on May 22, 2017. (DE 42). Based on his review
of the record and the applicable law governing the motion, the Magistrate Judge
recommended that the United States’ motion be granted on the basis that pro se Plaintiff
Stephen Desmund Peterson’s claim was time-barred. (DE 42 at 30). Pursuant to 28 U.S.C. §
636(b)(1) and Fed R. Civ. P. 72(b)(2), Peterson filed objections to the Magistrate Judge’s
Recommended Disposition. (DE 44). The United States responded in opposition to those
objections, (DE 46), and Peterson replied, (DE 48). As a result, this matter is now ripe for a
decision.

I. BACKGROUND
This action was initiated in June 2014 when Stephen Peterson, a federal inmate confined
at United States Penitentiary (“USP”) McCreary in Pine Knot, Kentucky, filed a pro se civil
rights complaint against a number of Defendants. (DE 1). In his complaint, Peterson alleged
he was entitled to compensatory damages under the FTCA due to negligence or medical
malpractice associated with surgery performed on his right forearm on October 27, 2009,
while he was confined at USP-Victorville, in Victorville, California. The procedure was
performed by Dr. Louis Redix at Barstow Community Hospital and consisted of a “Repair of
malunion of the ulna with bone graft.” (DE 1-2, at 2-4). Peterson claimed that Dr. Redix used
a contaminated “allograft” cadaver implant without his consent, causing him pain in his
forearm and requiring additional surgeries. (DE 1, at 11-12). Following the surgery,
Peterson’s arm was placed in a cast and he remained hospitalized until October 29, 2009.
(DE 1, at 16, DE 1-2, at 4).
Peterson also alleged that Dr. Redix and the prison staff were negligent and deliberately
indifferent to his post-surgery medical needs and denied his right to proper medical care. (DE
1, at 16-17). Peterson began complaining to prison medical staff about pain and adverse side
effects shortly after the surgery. On November 2, 2009 he complained of “pain and swelling.”
(DE 1-2, at 19). On December 20, 2009 and again on December 24, 2009 he reported pain in
his right forearm at the surgical site one week after doing pushups. (DE 1-2, at 27, 30). On
December 28, 2009, an x-ray was performed on Peterson’s arm. The radiologist’s findings
were: “Abnormal. suspected fracture/failure of malleable plate hardware which transfixes
mid-ulna fracture at the level of the 3rd-most distal screw. ballistic fragments. non-union of
fracture fragments.” (DE 1-2, at 31).
On January 25, 2010, Peterson requested another x-ray because “he had surgery on his
right forearm approximately three months ago . . . [and] can feel stuff moving in there
2

sometimes.” (DE 1-2, at 41). Peterson again requested a new x-ray on March 26, 2010 and
reported that he “still ha[d] a ‘cracking/popping’ sound with rotation of the right forearm.”
(DE 1-2, at 47). Peterson was sent for a new x-ray on March 31, 2010. The subsequent
radiologist report found: “Abnormal. - fractured fixation plate. - nonunited mid ulnar fracture
with distraction and angulation.” (DE 1-2, at 56). On April 5, 2010, Peterson was seen by
prison medical staff and had his first x-ray reviewed. He complained of “persistent pain and
‘feeling stuff move around inside right arm’ at surgery site” and denied any new injury. He
was told he needed an orthopedic consultation to consider further surgery. (DE 1-2, at 51).
Then, on April 18, 2010, Peterson requested copies of his x-rays “to be sent to [his] family
doctor to get a second opinion about [his] right finger and forearm.” (DE 1-2, at 60). In that
request, he stated:
I am tired of dealing with the pain and discomfort. I know something is wrong in there
because of the clicking and popping. My finger is tender and every time I bump it
against anything, it hurts. It’s not natural for [it] to be like this. I need a second
opinion. I would like a copy of my x-rays to be sent out to the streets.
(DE 1-2, at 60).
Peterson received an outside evaluation from Dr. Ronald S. Dubin of the Kentucky
Orthopedic Clinic on June 18, 2010. At that appointment, Peterson reported increasing pain
over the past several months and a popping sensation in his forearm. Dr. Dubin noted that
Peterson had a “non-union proximal ulna with broken plate” and recommended that “the
plate should be removed and the proximal ulna should be bone grafted.” (DE 1-2, at 69). Dr.
Dubin also added in his addendum that “The patient indicates that his initially [sic] injury
was in 1993. but he had an operation in California, not USP. He also said there were wound
infections and other things.” (DE 1-2, at 69). Peterson made another report to prison medical
staff on June 23, 2010, who noted that Peterson “State[d] he was told by the orthopedic he
would need to not use his right arm until it was fixed.” (DE 1-2, at 75). That report also noted
3

that Peterson “state[d] he does not want to wear a splint because that would show a sign of
weakness and he does not want anyone to know that he has a disability because of safety
concerns inside the prison.” (DE 1-2, at 75).
Peterson was referred to Dr. Patrice Beliveau at Premier Orthopedics and Sports
Medicine in London, Kentucky. At his examination on April 11, 2011, Dr. Beliveau noted that
Peterson reported “that he developed an open wound with bloody purulent discharge,
however he was not treated with antibiotics. The wound subsequently closed. He had
continual pain and swelling and was eventually diagnosed with a broken hardware and nonunion”1 (DE 1-2, at 88). Dr. Beliveau recorded that he “discussed the findings and treatment
options today with the patient. Given his history of questionable infection we have
recommended initial blood work . . . This patient was counseled about condition. Patient
verbalized understanding of the current plan of care and is agreeable.” (DE 1-2, at 89).
Peterson filed his first administrative tort claim related to the surgery (Claim 201103006) in March 2011. In that claim he alleged “Damage to the arm abnormal-fractured
fixation plate, nonunited mid ulnar fractute [sic] with distraction and angulation.” (DE 23-4,
at 1).2 His second administrative claim (Claim 2014-00048), which is the subject of this action,
was filed on October 8, 2013.3
In his complaint, Peterson asserted (1) an Eighth Amendment claim under Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) against various prison officials at
five different federal prisons, (2) a tort claim against the United States under the Federal

Peterson alleges that this report contains a typographical error and should read “he was treated with
antibiotics.” (DE 44, at 2). The relevance of this asserted error is discussed in the Court’s analysis.
2 That claim is not at issue in this action. The claim was denied on January 12, 2012 and Peterson failed to file
an action by July 12, 2012. Accordingly, the claim is time-barred per 28 U.S.C. § 2401(b). Peterson himself has
stated that “Tort Claim TRT-MXR-2011-03006 is not at issue here . . . .” (DE 33, at 5).
3 All parties now agree that the claim’s date of “10-08-2012” was a typo and that the claim was not filed until
October 8, 2013. (DE 33, at 17) (“The Plaintiff did not submit the second administrative tort claim to the BOP
until October 9, 2013.”).
1

4

Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, and (3) state law tort claims for negligence
and medical malpractice. The Court dismissed all of Peterson’s claims in two screening
orders. 4 Peterson’s FTCA claim was initially dismissed as time-barred in the Court’s second
screening Order issued on April 13, 2016. (DE 12, at 37). In that Order, the Court found that
Peterson did not submit his FTCA claim to the Board of Prisons (“BOP”) until October 8,
2013, nearly four years after his initial surgery on October 27, 2009. (DE 12, at 9).
Accordingly, the Court found the claim was time-barred by the two-year statute of limitations
and that it therefore lacked jurisdiction to consider the claim. (DE 12, at 8); see 28 U.S.C. §
2401(b) (“A tort claim against the United States shall be forever barred unless it is presented
in writing to the appropriate Federal agency within two years after such claim accrues . . .
.”). Peterson, however, submitted a Motion for Reconsideration on April 26, 2016. (DE 14).
Pursuant to that motion, and to err on the side of caution, the Court reopened Peterson’s
FTCA claim to consider whether dismissal of an FTCA claim for lack of subject matter
jurisdiction on statute of limitation grounds was inappropriate. (DE 17, at 8); see United
States v. Kwai Fun Wong, ___ U.S. ___, 135 S.Ct. 1625, 1629, 191 L.Ed.2d 533 (2015) (holding
that the FTCA time limits were non-jurisdictional and subject to equitable tolling).
The Magistrate Judge filed a Recommended Disposition in this matter on May 22,
2017. (DE 42). Based on his review of the record and applicable case law, the Magistrate
Judge recommended that the United States’ Motion to Dismiss or, in the Alternative, for
Summary Judgment (DE 23) be granted on the grounds that the FTCA claim was timebarred. (DE 42, at 1). The Magistrate Judge concluded that Peterson’s claim accrued “likely

In the first screening Order entered by this Court on January 22, 2015, Peterson’s Bivens claims against prison
officials outside Kentucky were severed and transferred to other judicial districts. (DE 8, at 14). In that order, the
Court also declined to exercise supplemental jurisdiction over his state law tort claims and dismissed those claims
without prejudice to his right to refile those claims in state court. (DE 8, at 14-15). His remaining Bivens claims
were dismissed in the Court’s second screening Order on April 13, 2016 for failure to state a claim and failure to
establish deliberate indifference to his medical needs. (DE 12, at 37-38).
4

5

in late 2009, potentially at various points in 2010, and certainly no later than April 11,
2011.” (De 42, at 14-15). Because Peterson did not file his claim until October 8, 2013, at least
two years after accrual, the claim was time-barred by 28 U.S.C. § 2401(b). (DE 42, at 14-15).
The Magistrate Judge rejected Peterson’s argument that he did not know the precise
cause of his problem or that the claim did not accrue until his actual awareness of the exact
medical injury. This theory, the Magistrate Judge found, was inconsistent with the Sixth
Circuit’s inquiry-notice accrual rule, which holds that a claim accrues when a plaintiff
possesses enough information related to the injury to seek out legal and expert advice about
whether to file a claim. See Hertz v. United States, 560 F.3d 616, 618 (6th Cir. 2009)
(alteration in original) (quoting McIntyre v. United States, 367 F.3d 38, 53 (1st Cir. 2004)
(citing Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)). Instead, as the Magistrate
Judge succinctly summarized, Peterson “knew the identity of the surgeon, knew he had
battled post-surgery infection, knew the arm had never healed, knew the hardware failed,
knew a cadaver bone could be involved, and knew the 2011 surgeons were concerned about
the infection history. His claim accrued when those facts coalesced.” (DE 42, at 21).
The Magistrate Judge also considered Peterson’s argument that his claim was not timebarred because it was filed within six months of December 18, 2013, when his previous claim
was denied. (DE 42, at 22). This argument was found to be inconsistent with the Sixth
Circuit’s interpretation of the statute: “An FTCA tort claimant must present his claim in
writing to the appropriate agency within two years of the date the claim accrued, and bring
a civil action within six months after the agency mails the notice of final denial of the claim.”
Brockett v. Parks, 48 F. App’x 539, 541 (6th Cir. 2002) (emphasis added). The two year or six
month deadlines in § 2401(b) presents “alternative ways of barring a claim,” not “alternative
ways of preserving a claim.” Ellison v. United States, 531 F.3d 359, 362 (6th Cir. 2008).

6

Accordingly, the Magistrate Judge rejected Peterson’s legal argument regarding the
construction of § 2401(b).
Finally, the Magistrate Judge found that Peterson’s claim was not saved by equitable
tolling. Weighing the five equitable tolling factors, the Magistrate Judge found that none
weighed in Peterson’s favor. (DE 42, at 26-27). Peterson did not lack actual notice of the filing
requirement, but was instead acutely aware of it. Similarly, nothing on the record suggested
that Peterson lacked constructive knowledge of the filing requirement. Third, Peterson failed
to diligently pursue his rights by bringing his claim more than two years after accrual, which
itself was eighteen months after the at-issue surgery. Fourth, the United States would suffer
real and palpable prejudice in the form of months of discovery and litigation expenses. And
finally, the Magistrate Judge found “no reasonableness on behalf of Peterson, who faced the
subject extant health problems over the course of many years, yet did not act to formally
protect his rights. (DE 42, at 27-28).
II. STANDARD OF REVIEW
The United States moved to dismiss or, in the alternative, for summary judgment. (DE
23). In his Recommended Disposition, the Magistrate Judge addressed the argument that
Peterson’s claim is time-barred under the standard for both a motion to dismiss and a motion
for summary judgement. (DE 42, at 8-12).
When evidence outside the pleadings are presented to and accepted by the Court, the
Federal Rules provide that a Rule 12(b)(6) motion to dismiss must be treated as a Rule 56
motion for summary judgement. Fed. R. Civ. P. 12(d); see Wysocki v. Int’l Bus. Machine Corp.,
607 F.3d 1102 (6th Cir. 2010). The United States did not style its motion as a 12(b)(6), but its
motion cannot proceed under Rule 12(b)(1) because the time-bar in § 2401(b) is not
jurisdictional. Kwai Fun Wong, ___ U.S. ___, 135 S. Ct. at 1632; see Herr v. United States,
803 F.3d 809, 814 (6th Cir. 2015) (discussing Kwai Fun Wong). Accordingly, the United
7

States’ motion is best characterized as a 12(b)(6) failure to state a claim upon which relief
can be granted. Because the parties presented evidence outside the pleadings that was
accepted and considered by the Magistrate Judge, Rule 56 applies.
Pursuant to Rule 56, a court shall grant summary judgement “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgement
as a matter of law.” Fed R. Civ. P. 56(a). When assessing a motion for summary judgement,
the court must construe the evidence and draw all reasonable inferences from the underlying
facts in favor of the nonmoving party. Matsushita Elc. Co., Ltd. V .Zenith Radio Corp., 106
S. Ct .1348, 1356 (1986). When a defendant moves for summary judgment, “[t]he mere
existence of a scintilla of evidence in support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III. ANALYSIS
Peterson timely filed objections to the Magistrate Judge’s recommendations (DE 44). The
United States filed a response (46) and Peterson filed a reply (DE 48). This Court must make
a de novo determination of those portions of the Magistrate Judge’s recommendation to which
an objection was made. 28 U.S.C. § 636(b)(1)(C). The basis of Peterson’s argument is that his
claim did not accrue until Dr. Beliveau told him about the infection on November 1, 2011.
(DE 44, at 1). Peterson’s specific objections are discussed in turn.
A. The Magistrate Judge correctly determined the date of accrual
A tort claim brought under the FTCA is “forever barred unless it is presented in writing
to the appropriate Federal agency within two years after such claim accrues . . . .” 28 U.S.C.
§ 2401(b). Generally, the date of accrual is the time of the injury. See United States v. Kubrick,
444 U.S. 111, 120 (1979) (“[T]he general rule under the [FTCA] has been that a tort claim
accrues at the time of the plaintiff's injury . . . .”). Kubrick, however, established a different
8

rule for medical malpractice cases, holding that a “plaintiff’s medical malpractice claim
accrues when he ‘knows both the existence and the cause of his injury.’” Amburgery v. United
States, 733 F.3d 633, 636 (6th Cir. 2013) (citing Kubrick, 444 U.S. 111). Accordingly, in
medical malpractice cases, the test for accrual under the FTCA is an inquiry-notice rule, not
a discovery rule.5 Hertz, 560 F.3d at 618 (6th Cir. 2009). Under the inquiry-notice regime, a
medical malpractice plaintiff who is “armed with the facts about the harm done to him”
cannot “await awareness . . . that his injury was negligently inflicted” but must instead
“protect himself by seeking advice in the medical and legal community.” Kubrick, 444 U.S. at
123. The rule emerging from Kubrick can best be summarized as: “[A] claim accrues when a
plaintiff possesses enough information with respect to h[is] injury that, ‘had []he sought out
independent legal and expert advice at that point, []he should have been able to determine
in the two-year period whether to file an administrative claim.” Hertz, 560 F.3d at 618
(internal alteration omitted) (quoting McIntyre v. United States, 367 F.3d 38, 53 (1st Cir.
2004) (citing Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)).
Peterson objects to the Magistrate Judge’s determination of the date of accrual, arguing
that the United States did meet its burden of proof to show that his claim accrued prior to
November 1, 2011. (DE 44, at 1, 10). Peterson was admitted to St. Joseph Hospital on
November 1, 2011 and, soon after his admittance, Dr. Beliveau took a culture from his right
forearm that tested positive for MRSA and Enteroccus faecalis. (DE 44-7, at 2). Peterson
claims that this diagnosis represents his true accrual date.
The burden is on the government to show that the statute of limitations has run in an
FTCA action. Hogan v. United States, 42 F. App’x 717, 722 (6th Cir. 2002). As the Magistrate

Other circuits classify the rule in Kubrick as a “discovery rule,” but those circuits define a discovery rule as the
Sixth Circuit defines an inquiry notice rule: “discovering the injury and its cause.” Amburgey, 733 F.3d at 636-37.
Peterson argues in his motion that Kubrick did establish a discovery rule, but merely provides a block quote to
Hertz and reiterates his claim that the government did not meet their burden of proof. (DE 44, at 12-13).
5

9

Judge explained in his Recommended Disposition, there is ample evidence that Peterson was
placed on inquiry notice prior to October 2011. The Magistrate Judge noted nine critical dates
prior to October 2011 that indicated Peterson possessed the requisite knowledge with respect
to his injury to seek out independent legal and expert advice about filing a tort claim. This
evidence is summarized below.
On December 30, 2009, Peterson underwent an x-ray that found his forearm was
“Abnormal. Suspected fractural/failure of malleable plate hardware . . . non-union of fracture
fragments.” (DE 1-2, at 31). On January 25, 2010, Peterson complained to Bureau of Prison
medical staff that “he had surgery on his right forearm approximately three months ago and
wants an xray . . . ‘because I can feel stuff moving around in there sometimes.” (DE 1-2, at
41). On April 5, 2010, Peterson again complained of “persistent pain and ‘feeling stuff move
around inside [his] right arm’ at [the] surgery site” and denied any new injury. (DE 1-2, at
51). He was advised that he may need further surgery, and another x-ray revealed
“abnormal,” “fractured fixation plate,” and “nonunited mid unlfar fracture with distraction
and angulation.” (DE 1-2, at 56). On April 18, 2010, Peterson sought a second opinion,
complaining: “I am tired of dealing with the pain and discomfort. I know something is wrong
in there because of the clicking and popping.” (DE 1-2, at 60). On June 18, 2010, Peterson
saw an outside orthopedic. His medical notes showed Peterson reported “increasing . . . pain”
at the surgical site and prior “wound infections” and “other things” wrong from the forearm
surgery. (DE 1-2, at 69). On June 23, 2010, Peterson told prison medical staff that the
orthopedic told him “he would need to not use his right arm until it was fixed.” (DE 1-2, at
75). In March 2011, Peterson filed Claim 2011-03006, seeking personal injury damages for
pain in his arm resulting from the forearm surgery. (DE 23-4, at 1). And finally, on April 11,
2011, Peterson saw Dr. Beliveau, whose medical notes contained Peterson’s report that “he
had continued pain and subsequently had a malunion correction in 2009,” and subsequently
10

developed

“an

open

wound

with

bloody

purulent

discharge

and “continual pain and swelling.” (DE 1-2, at 88). In his plan of care, Dr. Beliveau
recommended blood work because of his “history of questionable infection.” (DE 1-2, at 89).
This Court agrees with the Magistrate Judge’s determination that these facts constitute
evidence that Peterson was on inquiry notice of his claim by April 11, 2011 and as early as
December 30, 2009. Peterson’s repeated complaints to prison medical staff and outside
doctors and the fact that he filed a claim related to the surgery show that he possessed
“enough of the critical facts of injury and causation to protect himself by seeking legal advice.”
Amburgey, 733 F.3d at 637 (quoting Hertz, 560 F.3d at 619) (internal alteration omitted).
Peterson argues that the proper accrual date is November 1, 2011, the date on which he
had actual knowledge of the infection because of Dr. Beliveau’s diagnosis. This argument
ignores the Sixth Circuit’s clear precedent establishing an inquiry-notice rule for FTCA claim
accrual. For his claim to accrue, Peterson did not have to know the “precise medical reason
for the injury.” Amburgey, 733 F.3d at 638 (quoting Kerstetter v. United States, 57 F.3d 362,
364 (4th Cir. 1995). Instead, mere “knowledge that an injury was a result of medical
treatment generally, as opposed to knowledge of the specific injurious action or omission by
the physician, is sufficient for a claim to accrue.” Id. Even if Peterson did not know the exact
nature or cause of the infection, he did know that the pain, discomfort, and infections he had
suffered were the result of his forearm surgery. Accordingly, Peterson’s argument that the
accrual date must be tied to Dr. Beliveau’s November 2011 diagnosis fails. At the very latest,
Peterson’s claim accrued in April 2011.
B. Dr. Beliveau’s typographical error is irrelevant to the accrual date
Peterson next alleges that the Magistrate Judge relied on a typographical error in his
Recommended Disposition. In providing the factual background, the Magistrate Judge,

11

quoting from this Court’s earlier opinion (DE 12), included the following statement from Dr.
Beliveau’s April 11, 2011 exam notes:
The patient states that in 1993 he sustained a gunshot wound to his right forearm. At
that time he was treated conservatively with casting after the bullet was removed.
This did result in a [sic] isolated ulna fracture. The patient states that he had
continued pain and subsequently had a malunion correction in 2009. Following this
surgery the patient reports that he developed an open wound with bloody
purulent discharge, however he was not treated with antibiotics. The wound
subsequently closed. He bad continual pain and swelling and was eventually
diagnosed with a broken hardware and non-union. The patient was
subsequently referred to our services for further investigation.
(DE 42, at 6-7, DE 1-2, at 88). Peterson claims that the record should omit the word “not” and
read “he was treated with antibiotics.” (DE 44, at 2). He contends that medical staff at USP
Victorville did prescribe him antibiotics, which made the arm appear to be healed. (DE 44 ,at
2). Peterson is correct that the record shows that he was prescribed antibiotics following the
surgery on November 19, 2009. (DE 44-1, at 3). This error, however, had no effect on the
Magistrate Judge’s recommendation and does not indicate that his claim accrued later than
April 2011. As discussed above, Peterson’s medical records from November 2009 until April
2011 contain numerous subjective complaints that indicate he was aware that his arm was
not healing properly. He stated repeatedly that he experienced pain and discomfort, an open
wound, and bloody discharge and his x-rays consistently revealed abnormal findings.
Peterson claims that the antibiotics he was prescribed in November 2009 made the arm
appear to be healed, but on December 30, 2009 Peterson received the results of an x-ray that
indicated his forearm was “Abnormal. Suspected fracture/failure of malleable plate hardware
. . . non-union of fracture fragments.) (DE 1-2, at 31). Therefore, even if Peterson mistakenly
believed that he was healed due to the antibiotics, he was placed on inquiry notice when he
received the x-ray alerting him that the surgery was not properly healing.
The additional medical records cited by Peterson do not show that his accrual date was
incorrectly determined. While Nurse Practitioner Bennet-Baker noted that Peterson had a
12

“well-healed scar to right lateral forearm,” Peterson also stated during that appointment that
he wanted an x-ray “because I can feel stuff moving in there” and the Nurse Practitioner
noted that he had an “abnormal recent xray.” (DE 44-4, at 2). Similarly, the record of
Peterson’s June 18, 2010 appointment with Dr. Ronald Dubin support the conclusion that
Peterson was on inquiry notice as of that date. While Dr. Dubin did state that Peterson had
a “[w]ell healed scar,” that report also noted Peterson complained of increasing pain, a
“popping sensation in his forearm”, and “wound infections and other things” (DE 44-2, at 2).6
C. Peterson was not unaware of his claim due to failure to diagnose or treat
In his objections, Peterson recounts his second surgery on November 1, 2011 during which
Dr. Beliveau informed him he had a serious infection. After the surgery, Peterson claims he
requested copies of his medical records but that they omitted Dr. Beliveau’s diagnosis of a
serious infection. Concerned that prison officials were “playing dirty,” Peterson states he filed
a Freedom of Information Act Request which produced the records that he claims revealed to
him in September 2012, for the first time, that Dr. Beliveau had diagnosed him with an
infection from his first surgery. In making this argument, Peterson cites to three failure to
diagnose or treat cases which he claims supports his November 1, 2011 accrual date. (DE 44,
at 4-7). Those cases, however, do not support Peterson’s argument that doctors failed to
diagnose or treat him until April 11, 2011.
Peterson first cites to an unpublished opinion from the Ninth Circuit. See Desart v. United
States, Nos. 88-2877, 88-2996, 1989 WL 99253 (Table) (9th Cir. Aug. 22, 1989). In that case,
the plaintiff was incorrectly assured that their daughter’s meningitis was treated early and
the doctors specifically told her that the cause was unknown. Id. at *2. Peterson, in contrast,

As discussed above, Dr. Beliveau’s April 11, 2011 report also indicated that Peterson was on inquiry notice as of
that date. The other records cited by Peterson both date to after November 1, 2011 and are therefore not relevant
to determining whether he was on inquiry notice before October 2011. (DE 44-7, DE 44-8).
6

13

was repeatedly told that his x-rays were abnormal and suggested that the hardware was not
healing correctly. (DE 1-2, at 31 (“Abnormal. Suspected fracture/failure of malleable plate
hardware . . . .”); DE 1-2, at 56 (“Abnormal. – fractured and fixation plate.”)). Peterson next
cites to a case from the District of Hawaii, in which a plaintiff discovered lumps which he
suspected were cancerous, but had his requests for a biopsy ignored leading his cancer to go
undiagnosed. Lichtenberg v. United States, No. 10-00353, 2010 WL 5174382, at *6 (D. Haw.
Dec. 15, 2010). Unlike the plaintiff in Lichtenberg, Peterson’s requests for treatment were
not ignored. He received multiple x-rays that suggested his arm was not healing correctly.
Finally, Peterson cites one case from this district. See Davis v. United States, No. 08-184ART, 2012 WL 424887 (Feb. 9, 2012). In that case, however, the evidence suggested that the
plaintiff may have been unaware that malpractice caused his injury. Id. (“Without better
evidence, the Court cannot guess whether Davis believed the government caused his injuries
. . . .”). Peterson has admitted that he “was clearly aware, via medical data, that his October
27, 2009, surgery had not healed properly” by April 26, 2010. (DE 33, at 14). While the
plaintiff in Davis “could have only speculated that his injuries were caused by” malpractice,
prior to his eventual diagnosis, Peterson possessed enough information to “be aware of
probable government causation.” Davis, at *4-5 (first citing Arroyo v. United States, 656 F.3d
663, 672 (7th Cir. 2011); then citing Kubrick, 444 U.S. at 118).
D. Peterson’s claim is not subject to equitable tolling
Peterson’s final argument, that the government should be estopped from arguing the
claim is time-barred, is best understood as objecting to the Magistrate Judge’s finding that
equitable tolling does not apply. (DE 44, at 13; DE 42, at 25).
The Supreme Court has recognized that the FTCA’s two-year statute of limitations “is not
a jurisdictional requirement” and therefore “a court can toll them on equitable grounds.”

14

Kwai Fun Wong, ___ U.S. at ___, 135 S. Ct. at 1633; see also Herr, 803 F.3d at 814. In
assessing equitable tolling, the Court must consider five factors:
(1) lack of actual notice of the filing requirement; (2) lack of constructive knowledge of
the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice
to the defendant; and (5) a plaintiff's reasonableness in remaining ignorant of the
notice requirement.
Glarner v. United States, 30 F.3d 697, 702 (6th Cir. 1994) (citing Andrews v. Orr, 851 F.2d
146, 151 (6th Cir.1988)). The burden to prove equitable tolling falls on the party seeking to
invoke it. Bazzo v. United States, 494 Fed. App’x 545, 547 (6th Cir. 2012).
As the Magistrate Judge explained, none of the five factors weigh in Peterson’s favor.
Peterson at no point has argued that he lacked actual notice or constructive knowledge of the
filing requirement and as early as October 2011 has shown his actual knowledge of it. (DE
23-4, at 8 (stating in October 18 2011 that he was “intitled [sic] to purse [sic] my claim in the
District Court according to Subchapter C of the Federal Tort Claims Act . . . .”)).
Peterson also failed to diligently pursue his rights. Peterson began complaining of pain
in his forearm and received abnormal x-ray results as early as December 2009, but Peterson
failed to file the administrative claim in this action until October 13, 2013 and did not initiate
this lawsuit until June 9, 2014. Peterson was, at the very latest, on inquiry notice by April
2011 and, by his own admission, on actual notice by November 2011. Yet he still waited
nearly two years from those dates to bring a claim. Peterson’s failure to promptly present his
claim—waiting twenty-three months from the date of actual notice—weighs heavily against
applying equitable tolling. See Chomic v. United States, 377 F.3d 607 (6th Cir. 2004) (refusing
to apply equitable tolling when the plaintiff had seventeen months to investigate and file a
timely claim).
Tolling the FTCA limitation period would also cause substantial prejudice to the United
States, forcing it to litigate, at great expense, a claim that has become temporally remote, as
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nearly eight years have passed since Peterson’s surgery. See Jackson v. United States, 751
F.3d 712, 720 (6th Cir. 2014) (noting “the difficulty the government would have in litigating
a matter that was filed four months beyond the limitations period” in weighing prejudice).
Peterson asserts that the government “impeded and tried to prevent Plaintiff from
getting the cause of his arm not healing.” (DE 44, at 14). This argument, however, does not
establish that Peterson was reasonable in not filing his claim nor that extraordinary
circumstance obstructed timely filing. See Kwai Fun Wong, 135 S. Ct. at 1631 (“[A] court
usually may pause the running of a limitations statute in private litigation when a party has
pursued his rights diligently but some extraordinary circumstance prevents him from
meeting a deadline.”) (internal quotation marks omitted). Peterson states that he was
impeded from receiving medical records that showed he was Dr. Beliveau had diagnosed him
with an infection in November 2011. (DE 44, at 14). But, as discussed above, Peterson was
on inquiry notice of his claim by April 2011. Peterson himself claims to have been on actual
notice of this infection on November 1, 2011 and yet did not file a claim. And, moreover,
Peterson waited sixteen months after receiving his medical records to file any administrative
claim. Such a lengthy delay in bringing his claim after being placed on actual notice cannot
be described as reasonable or considered the result of government impediment. Accordingly,
Peterson has not met his burden for showing that equitable tolling should apply to his FTCA
claim.
E. The Magistrate Judge correctly denied Peterson’s Motion for Discovery
Lastly, the Court finds that the Magistrate Judge correctly denied Peterson’s Motion for
Discovery (DE 32). Peterson filed a motion requesting discovery on February 13, 2017 (DE
26) which was denied by the Magistrate Judge on March 17, 2017 (DE 29). Peterson filed a
second motion for discovery on April 10, 2017 (DE 32) which was again denied by the

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Magistrate Judge on May 15, 2017 (DE 39). Peterson filed an objection to the denial of
discovery (DE 43) and the United States filed a response (DE 45).
The Magistrate Judge properly denied Peterson’s discovery request. In his reply brief
(DE 37), Peterson provided the clearest summary of the matters on which he desired to
conduct discovery. Peterson seeks handwriting samples from staff at USP McCreary and the
regional counselor who processed his tort claim, but provides no reason as to why
handwriting samples would be relevant to his claim accrual date. (DE 37, ¶¶ 1, 4, 10). He
also seeks original copies of the x-rays and lab tests for his expert witnesses to evaluate (DE
37 ¶ 3, 5, 6). But Peterson has previously had his x-rays issued to him by prison staff and
expert witnesses to assess his medical records are not necessary to determine when Peterson
was on inquiry-notice of his claim. (DE 1-2, at 63) (administrative note indicating x-rays
released to Peterson). Three of his requests pertain to medical records and therefore are more
relevant to the date of accrual (DE 37, at ¶ 2, 8, 9).7 But Peterson has already been able to
obtain his medical records through requests to prison medical staff and Freedom of
Information Act requests (DE 44, at 5; DE 33-6)) and has filed numerous medical records in
support of his claim. In his objection, Peterson states that denial of discovery prevents him
from overcoming the Magistrate Judge’s Recommended Disposition. (DE 43, at 1). In that
objection, Peterson requests records from Dr. Beliveau’s April 11, 2011 examination. Yet the
record of this appointment has already been placed on the record. (DE 1-2, at 88). Moreover,
the purpose for which Peterson seeks discovery of these records would have no effect on the
accrual date. As discussed above, whether Dr. Beliveau’s report contained a typo was
irrelevant to the accrual date.

Request seven is for records of food strikes and suicide watch, which the Court finds to have no relevance to
Peterson’s date of accrual, and notes that Peterson has not suggested in his briefing that food strikes or suicide
watch would in some way effect his accrual date.
7

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IV. CONCLUSION
For the foregoing reasons, the Court, being otherwise sufficiently advised, HEREBY
ORDERS that:
1. the Magistrate Judge’s Order denying any discovery-related relief (DE 39) is
ADOPTED as and for the opinion of the Court;
2. the Plaintiff’s objections to the Magistrate Judge’s Order (DE 43) are OVERRULED;
3. the Magistrate Judge’s Recommended Disposition (DE 42) is ADOPTED as and for
the opinion of the Court;
4. the Plaintiff’s objections to the Magistrate Judge’s Recommended Disposition are
OVERRULED
5. the Defendant’s Motion to Dismiss, or in the Alternative For Summary Judgment (DE
23) is GRANTED on the basis that Plaintiff’s FTCA claim is time-barred.
6. a judgement consistent with this Opinion will be entered contemporaneously.
Dated October 31, 2017.

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