Cardona v. USA

Filing 48

MEMORANDUM OPINION AND ORDER: 40 1. Government's motion to dismiss or, in the alternative, motion for summary judgment 29 is DENIED. 2. Cardona's motion for summary judgment 40 is also DENIED. 3. Pursuant to 28:636( b), this matter is REFERRED to a USMJ to conduct all further pretrial proceedings, including overseeing discovery and preparing proposed findings of fact and recommendations on any future dispositive motions. 4. Clerk shall ASSIGN this matter to a Magistrate Judge. Signed by Judge Karen K. Caldwell on 8/24/2018. (RCB)cc: COR, Cardona via U.S. mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
JOSE CRISTOBAL CARDONA,
Plaintiff,

Civil Action No. 7:16-069-KKC

v.

MEMORANDUM OPINION
AND ORDER

UNITED STATES OF AMERICA,
Defendant.

*** *** *** ***
Jose Cristobal Cardona is a prisoner at the United States Penitentiary (USP) – Big Sandy
in Inez, Kentucky. Proceeding without a lawyer, Cardona filed a civil rights complaint with this
Court pursuing a claim against the United States of America pursuant to the Federal Tort Claims
Act (FTCA). The Government has now filed a motion to dismiss Cardona’s case or, in the
alternative, a motion for summary judgment. Cardona opposes that motion, and he has also filed
his own motion for summary judgment. For the reasons set forth below, the Court will deny both
parties’ dispositive motions and will refer this case to a Magistrate Judge for further proceedings.
I.
On December 7, 2015, Cardona filed an initial pro se civil rights complaint with the Court
in which he asserted constitutional claims pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), as well as a claim under the FTCA. See Cardona v. Federal Bureau
of Prisons, No. 7:15-cv-125-ART at R. 1 (E.D. Ky. 2015).
On May 6, 2016, the Court finished its preliminary review of Cardona’s complaint and
issued its screening order. See id. at R. 7. The Court first indicated that Cardona improperly

alleged multiple distinct claims against several different defendants in one case. See id. at R. 7 at
2, 6. The Court then dismissed Cardona’s FTCA claims because he named the Bureau of Prisons
(BOP) as the defendant, rather than the United States. See id. at R. 7 at 6. The Court then
determined that Cardona’s claim for lack of treatment for Hepatitis C must be dismissed for lack
of jurisdiction to the extent that it related to events occurring at his previous prison in Pennsylvania,
although it survived as it related to his alleged lack of treatment at USP-Big Sandy. Id.
The Court noted that Cardona’s remaining “non-Hepatitis C” claims fit into three groups:
“First, Cardona claims he was attacked in transit from USP – Allenwood in Pennsylvania to USP
– Big Sandy. Second, Cardona lists grievances with conditions at USP – Big Sandy. Third,
Cardona claims staff confiscated his cap.” Id. (citations omitted). Since those claims were distinct
from Cardona’s Hepatitis C claim and were also distinct from one another, the Court severed those
three claims from the original action. See id. at R. 7 at 7. The Court then directed the Clerk of the
Court to open three new cases, each with a newly-assigned case number, in which those three
unrelated claims could be resolved. See id.
This case is one of those new civil actions, and it involves only Cardona’s claim that he
was attacked while in transit from a federal prison in Allenwood, Pennsylvania to USP – Big Sandy.
[R. 1. at ¶ 13-19; R. 3 at 6, 9]. On May 31, 2016, just weeks after the Court opened this new civil
action, Cardona filed an amended complaint regarding this matter. [R. 7]. In that amended
complaint, Cardona makes it clear that he seeks to pursue his FTCA claim in this case and he
names the United States of America as the defendant. [R. 7].
This case was reassigned to the undersigned Judge [R. 14], and, eventually, in February
2018, the Government filed a motion to dismiss Cardona’s case or, in the alternative, a motion for

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summary judgment. [R. 29]. The Government’s principal argument is that Cardona’s FTCA claim
is barred by the statute of limitations and, thus, his case should be dismissed. [R. 29-1].
The Government initially argued in its dispositive motion that Cardona’s FTCA claim was
untimely because the BOP administratively denied his claim on June 2, 2015 and, under the law,
he only had six months to file a lawsuit in federal court. [R. 29-1 at 5-8]. The Government
reasoned that since Cardona did not file his initial complaint until December 7, 2015, he was at
least five days past the statute of limitations. [R. 29-1 at 8, 10]. However, the Government also
argued that “the most appropriate date to be used for the underlying [statute of limitations] is the
date of the amended complaint, May 31, 2016, which was five months and 30 days late.” [R. 291 at 10-11]. The Government explained its position by saying, “While the original complaint did
allege the underlying facts, the original FTCA claim was dismissed without prejudice by the Court
because the Plaintiff did not name the United States as a defendant, resulting in a fatal lack of
jurisdiction by the Court and dismissal.” [R. 29-1 at 10-11 (emphasis in the original)].
That said, after the Government filed its dispositive motion and Cardona filed his response,
the Government learned that, back in June 2015, Cardona had asked the BOP to reconsider his
FTCA claim. According to the Government, the BOP received that request for reconsideration on
June 16, 2015 and rejected it on July 2, 2015. [R. 44 at 4]. Given this new information, it appears
that Cardona’s initial complaint, which he filed on December 7, 2015, was brought within six
months of the date that the BOP administratively denied his FTCA claim. Nevertheless, since the
Court dismissed Cardona’s FTCA claim without prejudice on May 6, 2016, and he did not file his
amended complaint until May 31, 2016, the Government continues to argue that Cardona’s FTCA
claim is untimely and therefore should be dismissed. [R. 44 at 5]. Cardona responds by arguing
that the Court should consider his FTCA claim timely. [R. 38]. Cardona also filed his own motion
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for summary judgment [R. 40], which the Government opposes [R. 45]. Both parties’ dispositive
motions are now ripe for a decision.
II.
The principal issue before this Court is whether Cardona’s FTCA claim is time-barred.
The Court has fully reviewed the Government’s dispositive motion and supporting arguments but
concludes that, to the extent that Cardona’s FTCA claim is untimely, the specific facts of this case
justify tolling the statute of limitations on equitable grounds.
Under the law, a court may equitably toll the statute of limitations in a FTCA case. See
United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015). The United States Court of
Appeals for the Sixth Circuit has explained that a court should consider several factors in deciding
whether to apply equitable tolling to an otherwise-late claim. See Zappone v. United States, 870
F.3d 551, 556 (6th Cir. 2017). Those factors include: “(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.” Id.
(citation and quotation marks omitted). That said, the Sixth Circuit has also “recognized [the]
limitations to this approach” and has cast[ed] doubt on the need for strict adherence to it.” Id.
Ultimately, while the court continues to apply the factor test, it has repeatedly emphasized that
“the ‘propriety of equitable tolling must necessarily be determined on a case-by-case basis.’” Id.
at 557 (quoting Truitt v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)).
With respect to the first two equitable tolling factors, the BOP notified Cardona that, once
it denied his FTCA claim, he had six months to file a civil complaint in federal court, and Cardona
does not dispute that he knew of this filing requirement. Still, Cardona complied with that
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requirement by filing his complaint with this Court within the time allotted, and he did so while in
federal prison and without the assistance of a lawyer. Cardona also repeatedly indicated in his
complaint that he was asserting his FTCA claim arising from his allegations that he was attacked
while in transit from USP-Allenwood to USP-Big Sandy. Unfortunately, Cardona just named the
wrong defendant.
Cardona then waited for the Court to conduct its initial review. Once the Court issued its
screening order six months later, and it was apparent that Cardona’s initial complaint was defective
in certain respects—most notably, his naming the “Federal Bureau of Prisons” as the defendant
instead of the “United States of America”—he quickly filed an amended complaint in an attempt
to cure those deficiencies. Thus, with respect to the third equitable tolling factor, Cardona
diligently pursued his FTCA claim. Finally, with respect to the fifth equitable tolling factor, there
is no indication that Cardona remained ignorant of any specific, relevant legal requirement.
To be sure, the fourth equitable tolling factor may cut slightly against Cardona, as the
Government will necessarily suffer some prejudice if he can proceed on his FTCA claim. But
whatever prejudice the Government may suffer is outweighed by the fact that Cardona’s initial
complaint was timely and, in that submission, he repeatedly indicated that he was asserting a FTCA
claim against the federal government. Again, at bottom, Cardona’s mistake was naming the
“Federal Bureau of Prisons” as the defendant in his initial complaint, rather than the “United States
of America.” Given the specific facts of this case, including Cardona’s status as an incarcerated,
pro se litigant, the Court finds that equitable tolling is warranted. Therefore, the Court will deny
the Government’s motion to dismiss.
Finally, while the Government and Cardona have also both moved for summary judgment
[Rs. 29, 40], summary judgment would be premature in this matter given the limited record before
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the Court and the fact that the parties have not engaged in discovery. See Vance v. United States,
90 F.3d 1145, 1148 (6th Cir. 1996) (“The general rule is that summary judgment is improper if the
non-movant is not afforded a sufficient opportunity for discovery.”). Therefore, the Court will
deny both parties’ motions for summary judgment as simply premature at this stage.
Ordinarily, at this point in a civil case, the parties would exchange initial disclosures and
confer on a proposed discovery plan. However, an action brought by a pro se prisoner, such as
this case, is exempt from these requirements. See Fed. R. Civ. P. 16(b), 26(a)(1)(B)(iv), 26(f)(1);
LR 16.1(c). Thus, the Court will refer this matter to a Magistrate Judge to oversee discovery and
all matters of pretrial management.
III.
In light of the foregoing analysis, it is hereby ORDERED as follows:
1. The Government’s motion to dismiss or, in the alternative, motion for summary
judgment [R. 29] is DENIED.
2. Cardona’s motion for summary judgment [R. 40] is also DENIED.
3. Pursuant to 28 U.S.C. § 636(b), this matter is REFERRED to a United States
Magistrate Judge to conduct all further pretrial proceedings, including overseeing
discovery and preparing proposed findings of fact and recommendations on any future
dispositive motions.
4. The Clerk of the Court shall ASSIGN this matter to a Magistrate Judge.
This 24 day of August, 2018.

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