Dann v. USA

Filing 9

MEMORANDUM OPINION AND ORDER: 1) Plaintiff's complaint is DISMISSED w/prejudice; 2) A corresponding Judgment will be entered this date; 3) This matter is STRICKEN from the active docket. Signed by Judge Danny C. Reeves on 9/5/2017.(RC)cc: COR, Kevin Dan w/noe via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
)
KEVIN DANN,
)
Civil Action No. 6: 17-32-DCR
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION
)
AND ORDER
)
Defendant.
*** *** *** ***
Inmate Kevin Dann has filed a pro se complaint pursuant to the Federal Tort Claims
Act, 28 U.S.C. §§ 1346(b), 2671-80 (“FTCA”), and has paid the filing fee. [Record Nos. 1, 8]
This matter is pending for initial review pursuant to 28 U.S.C. §§ 1915(e), 1915A. A district
court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief. Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010).
I.
Dann alleges that when he was taken into the custody of the Bureau of Prisons in 2010,
he was already suffering from an injury to his left wrist due to an accident with a nail gun.
Dann was told that he needed a bone graft to treat the injury after medical examination and
testing confirmed that he had a broken bone in his left wrist. However, when he was taken to
a hospital for the procedure to be performed in 2011, his medical records could not be located,
preventing the operation from going forward. Dann contends that since that time through April

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2014, BOP medical staff only provided a velcro brace for his wrist and over-the-counter
medication which was insufficient to address his chronic pain.
Dann made these same allegations in a civil rights lawsuit he filed in this Court in
August 2014 pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). The Court dismissed that suit in August 2015 on several grounds, including Dann’s
failure to exhaust administrative remedies and his failure to demonstrate a viable Eighth
Amendment claim. The Court also concluded that Dann’s claims against Lt. Davis could only
be asserted under the FTCA because Davis is a commissioned officer of the United States
Public Health Service. Dann appealed, but the appeal was dismissed for failure to prosecute.
Two weeks after that case was dismissed, on September 1, 2015, Dann submitted a
Standard Form 95, Claim for Damage, Injury, or Death, to the BOP setting forth the same
basic allegations and stating that he had been advised that surgery was no longer a viable
treatment option. Dann sought $250,000.00 in administrative settlement of his claim against
the BOP. The BOP denied that request by letter dated March 3, 2016, asserting that it had
provided medically-appropriate care at all times. [Record No. 4 at 1-4]
Once the BOP denied the claim, Dann had satisfied the FTCA’s exhaustion requirement
set forth in 28 U.S.C. § 2675(a). Myers v. United States, 526 F.3d 303, 305 (6th Cir. 2008).
Therefore, he was required to file suit within six months (by September 3, 2016) or his claim
would be time barred. 28 U.S.C. § 2401(b). Dann’s complaint is deemed filed on February 9,

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2017, the date he mailed it [Record No. 1-2], pursuant to the prison mailbox rule.1 As a result,
Dann’s complaint is untimely by more than five months.
In the “certificate of service” filed with the complaint, Dann states that it is merely a
“reproduction” of the original, which he alleges was mailed to the Court six months earlier (on
August 1, 2016). [Record No. 1 at 12] In a letter to the Clerk of this Court dated January 9,
2017, Dann alleged that “several months ago” he had mailed a “motion” under the FTCA to
the Court, but that he had never heard back and the Clerk had not sent back a letter advising
him of the case number or providing him with a motion to proceed in forma pauperis. Dann
offered no other factual support for his allegations other than his own statement.
On January 17, 2017, the Clerk advised Dann by letter that it had no active case to
associate with his letter, indicating that the Court never received the FTCA “motion” Dann
claims to have mailed. [Record No. 1-1]
II.
Setting aside any concerns regarding the possible res judicata effect of the prior
litigation, the question presented is whether Dann’s alleged efforts to file suit within the
limitations period, assuming them to be true, prevent his complaint from being time-barred
under § 2401(b) where those efforts failed to actually result in his FTCA claims being received
and filed in this Court. Resolution of that question might be more clear-cut if, as federal courts
previously held, the timely filing of a FTCA complaint was a jurisdictional prerequisite to suit.

1

Technically the complaint could have been deemed filed on the date Dann signed it if he
had dated it and promptly handed it to prison officials for mailing, Brand v. Motley, 526 F.3d
921, 925 (6th Cir. 2008). However, Dann did not date his complaint at all.
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But the Supreme Court has recently made clear that § 2401(b) is not a jurisdictional statute but
merely a statute of limitations. Thus, the limitations period is subject to equitable tolling.
United States v. Kwai Fun Wong, __ U.S. __, 135 S. Ct. 1625, 1632-34 (2015).
The Court nonetheless concludes that Dann’s complaint must be dismissed as timebarred. First, Dann’s complaint cannot be deemed timely filed through application of equitable
tolling. Dann plainly failed to file suit within the time period permitted by § 2401(b). This
Court may conclude that equitable tolling applies to save an otherwise untimely complaint
from dismissal. Jackson v. United States, 751 F. 3d 712, 718-19 (6th Cir. 2014). Equitable
tolling permits a federal court “to toll a statute of limitations when a litigant’s failure to meet
a legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s
control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010). However, application of
equitable tolling in suits against the government should be permitted only “sparingly, and not
when there has only been a garden variety claim of excusable neglect.” Chomic v. United
States, 377 F.3d 607, 615 (6th Cir. 2004).
The court considers the following factors in determining whether to apply equitable
tolling:
(1)

the plaintiff’s lack of notice of the filing requirement;

(2)

the plaintiff’s lack of constructive knowledge of the filing requirement;

(3)

the plaintiff’s diligence in pursuing her rights;

(4)

an absence of prejudice to the defendant; and

(5)

the plaintiff’s reasonableness in remaining ignorant of the particular legal
requirement.

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Truitt v. Cnty. of Wayne, 148 F. 3d 644, 648 (6th Cir. 1998). The plaintiff bears the burden of
demonstrating entitlement to equitable tolling. Robertson, 624 F. 3d at 784.
Here, the first and second factors do not support equitable tolling because Dann was
actually aware of the six-month deadline to file suit. Truitt, 148 F. 3d at 648. The BOP’s letter
denying his request for administrative settlement expressly advised him that he must file suit
within six months [Record No. 4 at 2], and Dann’s alleged conduct in mailing his complaint
on August 1, 2016 - one month before that deadline - evidences his subjective awareness of
the deadline to file suit.
Likewise, the third and fifth factors (i.e., Dann’s diligence in pursuing his rights and
the reasonableness of his conduct) do not support equitable tolling. Dann could have filed suit
a few days or a few weeks after he received the BOP’s denial letter in early March 2016.
Instead, he waited five months - with only one month remaining before the deadline - before
he filed a fairly straightforward complaint. He did so even though he was already thoroughly
familiar with the facts of his case and the process of filing a complaint through his involvement
in the first case he filed in 2014 based upon the same events. Such unnecessary delay does not
constitute diligence under the circumstances. See Jackson, 751 F. 3d at 720.
In addition, equitable tolling is only warranted during the period where the plaintiff’s
conduct continues to be diligent, but ceases once his or her conduct is no longer so. Miller v.
Collins, 305 F.3d 491, 495-96 (6th Cir. 2002); Irwin v. Dept. of Veterans Affairs, 498 U.S. 89,
96 (1990) (“[w]e have allowed equitable tolling in situations where the claimant has actively
pursued his judicial remedies by filing a defective pleading during the statutory period ... [but
we] have generally been much less forgiving in receiving late filings where the claimant failed
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to exercise due diligence in preserving his legal rights.”). Apart from Dann’s diligence before
he allegedly mailed the complaint on August 1, that diligence faltered thereafter.
Dann claims that he was unable to mail the complaint by certified mail because the
prison was on lockdown. [Record No. 1-1] If Dann had been concerned enough about the
Court timely receiving the complaint because of the disruption at the prison that he had
intended to send it by certified mail, his inability to do so should at least have prompted him
to check with the Court to ensure its receipt shortly after he sent it by regular mail. Dann did
not do so, either immediately after he mailed the complaint or even before the September 3rd
deadline had arrived. Instead, he waited more than five months before writing to the Court in
January 2017 to check on its status. This conduct does not demonstrate the sort of diligence
sufficient to warrant the Court’s invocation of its equitable authority on behalf of a dilatory
plaintiff.
The fourth factor (i.e., prejudice to the defendant) is more equivocal. On the one hand,
it is open to question whether the delay caused material prejudice to the defendant in
responding to the plaintiff’s claims. On the other, the basis for Dann’s FTCA claim relates to
medical care he received from 2011 through 2014. Thus, his suit is already six years removed
from the underlying events. The documentary record was somewhat preserved through the
filing of the prior action, but witnesses may have dispersed and their recollections grown more
uncertain with the passage of time.
On balance, particularly where the plaintiff’s suit is one against the government, the
Court concludes that equitable tolling is not warranted. Congress intentionally established a
very short limitations period to file an action under the FTCA, requiring promptness and
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considerable diligence on the part of potential FTCA plaintiffs. Dann was clearly aware of the
short period to file suit but unnecessarily waited until the eleventh hour to mail his complaint.
He then made no effort for five months to ensure that it was timely received by the Court,
notwithstanding his acknowledged concern regarding its timely receipt.
One additional note: the timeliness of Dann’s filing is further called into question
because he failed, both in August 2016 and in February 2017, to send with his complaint either
payment of the filing fee or a motion to proceed in forma pauperis. See Record No. 1-1 at 1
(Dann stating that he never received a form application to proceed in forma pauperis after he
sent his FTCA motion in August 2016). While a civil action is commenced by filing a
complaint, a filing fee is also required, 28 U.S.C. § 1914. Having made no attempt to either
pay the filing fee or file a motion to proceed in forma pauperis at either time, there is sound
reason to doubt whether Dann is deemed to have “commenced” suit at such time for purposes
of the statute of limitations even if his complaint had been received. Truitt, 148 F. 3d at 64748 (“... it is proper for a district court to deem a complaint ‘filed’ only when IFP status is
granted or the appropriate filing fee is paid, rather than at the time a complaint is delivered to
the clerk of a court.”) (citing Williams-Guice v. Bd. of Educ. of City of Chicago, 45 F. 3d 161,
164 (7th Cir. 1995) and Jarrett v. US Sprint Comm. Co., 22 F.3d 256, 258 (10th Cir. 1994)).
See also Robinson v. America’s Best Contacts and Eyeglasses, 876 F.2d 596, 598 (7th Cir.
1989).
III.
Dann’s complaint is time barred under 28 U.S.C. § 4201(b), and must be dismissed.
Accordingly, it is hereby
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ORDERED as follows:
1.

The plaintiff’s complaint is DISMISSED, with prejudice.

2.

A corresponding Judgment will be entered this date.

3.

This matter is STRICKEN from the active docket.

This 5th day of September, 2017.

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