Atakulu v. Maryland Department of Human Resources et al

Filing 16

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/26/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

Southern Division

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SENORA P. ATAKULU

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Plaintiff,

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v.

Case No.: GJH-14-0904

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MARYLAND DEPARTMENT
HUMAN RESOURCES

OF

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and
PRINCE GEORGE'S COUNTY
DEP ATMENT OF SOCIAL SERVICES

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*

Defendants.

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*

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*

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*

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MEMORANDUM

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*

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OPINION

This Memorandum and Order addresses Plaintiffs

Motion to Reopen Case, ECF No. 14,

and supporting memorandum, ECF No. 14-1; Defendants' joint Opposition to Plaintiffs

Motion

to Reopen Case, ECF No. 15, and supporting memorandum, ECF No. 15-1; and Defendants'
joint Motion to Dismiss Plaintiffs

Complaint, ECF No. 11, and supporting memorandum, ECF

Nos. 11-1. I find that a hearing is unnecessary in this case.
reasons stated below, Plaintiffs

See Local Rule 105.6.

For the

Motion to Reopen Case is DENIED and Defendants'

Motion to Dismiss is GRANTED.

1

joint

I.

BACKGROUND

Plaintiff Senora Atakulu ("Atakulu")

was formerly employed by Defendant

George's County Department of Social Services ("DSS").

Prince

ECF No. I, ~ 2. Atakulu was hired

by DSS as a Family Support Worker on or around August 29, 2007. Id. at ~ 5. At the time she
was hired, Atakulu was 58 years old. Id. at ~ 6. On or around November 1,2010,

Atakulu

sustained an on the job injury to one of her ankles. Id. at ~ 10. As a result of her injury, Atakulu
requested that DSS place her on light duty or allow her time-off in order to recuperate from her
injury. Id. at ~ 11. DSS refused both requests and continued to assign Atakulu to perform the
full duties of her position. Id. at ~ 12.
Then, on November

15, 20 I0, Atakulu reinjured her ankle when she slipped on a rug

while perfoffi1ing her job duties. Id at ~ 14. As a result ofthese injuries, Atakulu consulted with
a physician who recommcnded that she be placed on "light duty" li'om January 13,2011 through
March 14,2012.

Id. at ~ 17. Consistent with that recommendation, on or around January 18,

2011. Atakulu requested to her superiors that she be given an accommodation
leave and reassignment to a position that was less physically demanding.
around February 9, 2011, DSS refused her request.

in the form of

Id. at ~ 18. On or

Id at ~ 20. Around that time, one of her

superiors made discriminatory remarks regarding Atakulu's disability. Id. at ~ 21.
In response to DSS' s refusal to accommodate her disability, Atakulu rcnewed her request,
this time inquiring about the front desk position and the Lead Family Support Worker position.
Id at ~ 27. On or around March 14,2011, Atakulu's superiors advised her that no such positions
were available.
positions.

Id. at

'1 28.

Atakulu was not presented with any other possible reassignment

Id According to Atakulu, however, numerous front desk personnel were either hired

or transferred in from other departments between 2011 and 2012.

2

Id. at ~ 30. Tn fact, in or

around February 2012, Atakulu became aware that the Lead Family Support Worker position had
been available in late 2011 and was assigned to a less qualified and less senior, twenty-four year
old co-worker.

Jd. at '\1'\139,41,44.

In or around May 20 11, Atakulu was given an unsatisfactory performance review by the
superior she claims made discriminatory remarks in February 2011. Jd. at '\134. At the time of
her performance review, Atakulu infoffiled her superior that she believed her evaluation violated
her Title VII rights.
Discrimination

Jd. at

'\I

35. On November 26, 2011, Atakulu tiled a formal Charge of.

with the Equal Employment

Opportunity

Commission

various violations under Title VII of the Civil Rights Act of 1964. Jd. at

("EEOC")

'\I 77.

claiming

After filing her

charge with EEOC, Atakulu's superior told her that he was tired of her complaints and that he
could "get rid" of her and that he had gotten rid of other employees previously.

Id. at

'\I

46.

Shortly thereafter, on March 16, 2012, Atakulu received a letter ti'om the Director of DSS
indicating that it had become necessary to consider freeing her position.

Id. at

~r48.

Atakulu

was given the option of resigning or choosing "regular Retirement or disability retirement."
at

'\I 49.

Id.

Atakulu, however, wished to continue working and asked again for a reassignment to a

sedentary position. Jd. DDS refused. Jd. Ultimately, on May 11, 2012, Atakulu was presented
with resignation papers and was forced to quit. [do at

'\I 51.

On July 12, 2013, more than a year and half after tiling her formal Charge of
Discrimination, EEOC issued Atakulu a Notice of Right to Sue on her EEOC complaint. Id. at

'\I

81. As such, Atakulu filed a pro se complaint against DSS and its Director, Gloria Brown, on
September 10,2013 in federal district court. Jd. at ~182; see Atakulu v. Brown, l3-cv-2633-PJM
(D. Md. Nov. 25, 2013) (hereinafter referred to as "Atakulu F'). That same day, Atakulu filed a
Motion for Leave to Proceed in Forma Pauperis.

3

See Atakulu I, 13-cv-2633-PJM, ECF NO.2.

The Court granted Atakulu's request.

See id at ECF NO.3.

In doing so, however, the Court

recognized that Atakulu had not furnished a U.S. Marshal service of process form for the
1d. As such, the Court stated that until Atakulu cured this problem, service would

defendants.

not be issued. 1d. Furthermore, the Court ordered the Clerk to mail a copy of the Marshal form
for each defendant to Atakulu, who was required to complete and return it to the Clerk within
twenty-one days of the Order. 1d. The Court cautioned Atakulu that "[f]ailure to comply with
this Order may result in dismissal without prejudice of the Complaint."

1d. Ultimately, Atakulu

did not comply with the Court's Order. ECF No. I, '183. Accordingly, on November 26,2013,
the C01ll1 dismissed her Complaint without prejudice and directed the Clerk to close her case.
See Atakulu 1, 13-cv-2633-PJM, ECF NO.4. Then, on March 23, 2014, Atakulu filed the instant
complaint

against DSS and the. Maryland

"Defendants").

Department

of Human Services

(collectively,

According to Atakulu, this complaint "shares identical claims asserted in her

original complaint" in Atakulu 1. See ECF No. 14-1 at 3. Defendants have moved to dismiss on
various grounds, including that Atakulu's instant complaint was untimely filed. For the reasons
discussed below, I will grant Defendants' motion on the basis that that Atakulu's complaint was
untimely. Having determined that Atakulu's complaint was untimely, there is no need to address
. Defendants'

other arguments as to whether or not Atakulu has adequately stated claims under

Title VII.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it
fails to state a claim upon which relief can be granted."
2012 WL 6562764, at *4 (D. Md. Dec. 13,2012).

Velencia v. Drezhlo, No. RDB-12-237,

This rule's purpose "'is to test the sufficiency

of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
4

applicability of defenses.'" Id. (quoting Presley v. City of Charlollesville, 464 F3d 480, 483 (4th
Cir. 2006».

To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
when considering a motion to dismiss pursuant to Rule l2(b)(6).

Specifically, a complaint must

contain "a short and plain statement of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice,"
Iqbal, 556 U.S. at 678-79.
Iqbal and Twombly).

See Velencia, 2012 WL 6562764, at *4 (discussing standard from

"A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable 'inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 663. A "motion to dismiss challenging the timeliness of
the claimant's charge is reviewed under Rule 12(b)(6)." E.E.o.c. v. AMXCommc'ns,

Ltd., 2011

WL 3555831, *3 (D. Md. Aug. 8,2011).

III.

DISCUSSION
A.

Motion to Reopen Case Under Fed.R.Civ.P. 60(b)(1)
Prior to addressing Defendants' joint Motion to Dismiss, the Court will first address

Atakulu's Motion to Reopen case. Specifically, Atakulu has asked the Court to reopen Atakulu I
(see Atakulu v. Brown, 13-cv-2633-PJM

(D. Md. 2013» pursuant to Fed. R. Civ. P. 60(b).

Federal Rule of Civil Procedure 60(b) authorizes a district court to grant relief from a final
judgment for five enumerated reasons or for "any other reason that justifies relief." Fed.R.Civ.P.
60(b)(6).1

1

Here, Atakulu seeks relief from the judgment under Rule 60(b)(l)

Federal Rule of Civil Procedure 60(b) provides in full:
5

for "mistake,

inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(I).

Essentially, Atakulu argues

that this Court should reopen Atakulu 1- a decision rendered by another district court in the
District of Maryland - because "she did not have any understanding of what was being asked of
her or the detrimental significance of her case being dismissed without prejudice."

ECF No. 14-

I at 7. This argument is unpersuasive for a number of reasons

As an initial matter, "the district court is the proper forum in which to bring Rule 60(b)
motions for relief from that court's own judgments."
887,889

Fobian v. Storage Tech. Corp., 164 F.3d

(4th Cir. 1999) (emphasis added). That is, relief under Rule 60(b) should typically be

sought by motion to the court that rendered the judgment at issue. See Rivera v. Thomas, 316 F.
Supp. 2d 256, 259 (D. Md. 2004) ("Relief under Rule 60(b) ordinarily is obtained by motion in
the court that rendered the judgment")

(quoting and citing II Charles A. Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice & Procedure

S 2865

(2d ed. 1995».

Here, Atakulu

filed her 60(b)(I) motion in the non-rendering court. Accordingly, and out of considerations for
judicial economy and comity among district courts, this Court believes it is unwise for it to

Grounds for Relieffrom a Final Judgment, Order, or Proceeding. On motion and just terms, the
court may relieve a party or its legal representative from a final judgment, order, or proceeding
for the following reasons:
(I) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
6

disturb the judgment rendered in Atakulu I by reopening a case previously dismissed by a sister
court. See e.g., Harper Maclean Solicitors v. Keaty & Keaty, 260 F.3d 389, 395 (5th Cir. 2001)
('judicial

efficiency and comity among district courts often counsel a registering court to defer

ruling on Rule 60(b) motions in favor of the rendering court"); Indian Head Nat. Bank of Nashua
v. Brunelle, 689 F.2d 245, 249 (I st Cir. 1982) (identifying "several policies which support such
deference [to the rendering court], the most important of which is the reluctance of any federal
court to interfere with the judgment of a court of coordinate level"); Fuhrman v. Livaditis, 611
F.2d 203, 205 (7th Cir. 1979) (recognizing that "comity among the federal district courts is
furthered if the registering court refers the question of relief from judgment to the court which
ordinarily entered the judgment;

[and that] efficient judicial administration is furthered if the

registering court defers to the original court, which is likely to be more familiar with the issues
raised by the motion for relief from judgment").

Atakulu's motion to reopen Atakulu I is

therefore denied.

Even if Atakulu's

motion was properly before this Court, it would still fail.

As

mentioned, Atakulu seeks relief from the Atalkulu I dismissal order under Rule 60(b)(I) due to
her "excusable neglect."

See ECF No. 14-1 at 5-8. The Supreme Court articulated the standard

for "excusable neglect" in Pioneer Inv. Servo CO. V. Brunswick Assoc. Ltd. P'ship, setting forth
four factors for courts to consider, including "[1] the danger of prejudice to the [non-movant], [2]
the length of the delay and its potential impact on judicial proceedings, [3] the reason for the
delay, including whether it was within the reasonable control of the movant, and [4] whether the
movant acted in good faith."

507 U.S. 380, 395 (1993); see also Thompson

V.

E.! DuPont de

Nemours & Co .. Inc., 76 F.3d 530, 533 (4th Cir. 1996); Cronin v. Henderson, 209 F.RD. 370,
371, n. I (D. Md. 2002).

"[A] district court should find 'excusable

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neglect'

only in the

'extraordinary

cases where injustice would otherwise result.'"

(emphasis in original).

Thompson, 76 F.3d at 534

Thus, "[ eJxcusable neglect is not easily demonstrated,

nor was it

intended to be." Id. Moreover, "the most important factor considered by a court is the reason for
the delay."

Rothenberg v. Marriott Int'l, Inc., 2008 WL 687033, *I (D. Md. Feb. 29, 2008)

(citing Thompson, 76 F.3d at 534); see also States v. Munoz, 605 F.3d 359, 372 (6th Cir. 2010)
("[TJhe Pioneer factors do not carry equal weight; the excuse given for the late filing must have
the greatest import.").

Here, Atakulu makes various arguments that purportedly demonstrate excusable neglect most of which stem from her self-proclaimed ignorance of the law and other relevant procedures.
See e.g., ECF No. 14-1 at 7 (stating that she "believed in good faith that she had met her
obligations" when she filed her September 10,2013 complaint); id. (stating that she believed she
"did not need to take any further action on her complaint"); id (stating that "she did not have any
understanding of what was being asked of her or the detrimental significance of her case being
dismissed with prejudice"); id at 6 (arguing that her "circumstance as Pro Se operating without a
paid advocate during the filing of her first complaint" constitutes excusable neglect).
without more, Atakulu's
demonstrate

excusable

ignorance of the law and relevant procedures
neglect.

Indeed,

the Fourth

Circuit

2

But

is not sufficient to

has expressly

stated "that

Atakulu also contends that her "difficulty reading through the documents she received from the
court" and her inability to procure "proper eyeglasses" constitutes excusable neglect. ECF No.
14-1 at 7. This argument is similarly unpersuasive. Atakulu's inability to obtain the proper
eyewear is certainly not the type of "extraordinary" circumstances that demonstrates excusable
neglect. See Provident Life & Ace. Ins. Co. v, Clarke. 2008 WL 619289, *3 (E.D.Va. Mar. 4,
2008) (pro se plaintiffs multiple sclerosis, anxiety attacks, and "foggy mental state" was not
excusable neglect for appealing too late; there was no evidence that he "was so impaired as to be
unable to file" the appeal notice).
2

8

'inadvertence,

ignorance of the rules, or mistakes construing the rules do not usually constitute

excusable neglect.'" Thompson, 76 F.3d at 533 (citing Pioneer, 507 U.S. at 392). Accordingly,
Atakulu has failed to demonstrate excusable neglect in this case, as her lack familiarity with the
law and relevant procedures does not rise to the level of excusable neglect.
Fiberglass

Coatings, Inc. v. Fodor Contracting

See e.g., Augusta

Corp., 843 F.2d 808, 811 (4th Cir. 1988)

(explaining that when a party is at fault, as opposed to an attorney, "the Oudicial system's need
for finality and efficiency in litigation] dominate and the party must adequately defend its
conduct in order to show excusable neglect"); Alexander v. Glut Food Coop, 2013 WL 1741982,
*3 (D. Md. Apr. 22, 2013) (no excusable neglect where plaintiffs

"lack of familiarity with rules

by law does not constitute excusable neglect and her mistake in not responding to Defendant's
Motion for Summary Judgment was entirely in her control"); Awah v. Midland Credit Mgmt. of
Am., 2011 WL 3821600, *2 (D. Md. Aug. 26, 2011) ("pleadings prepared by pro se litigants are
to be liberally construed, the same cannot be said for the interpretation of procedural rules in
ordinary civil litigation").

For this additional reason, Atakulu's Motion to Reopen Atakulu I is

denied.
B.

Motion to Dismiss

Having thus denied Atakulu's Motion to Reopen Atakulu I, the Court is left to determine
whether the complaint,

as filed in the instant proceeding,

states valid causes of actions.

Specifically, Atakulu's complaint contains three causes of action, all of which arise under Title'
VII, including a claim for disability discrimination, age discrimination, and retaliatory discharge.
Defendants have rnoved to dismiss these claims on the basis that they are untimely.
Pursuant to the Title VII of the Civil Rights Act of 1964, U.S.C.

S 2000e-5(f)(l),

federal

discrimination claims, including those alleged by Atakulu, must be filed within ninety days after

9

EEOC gives the claimant notice of his or her right to sue. See Vogel v. Am. Home Products
Corp. Severance Pay Plan, 122 F.3d 1065 (4th Cir. 1997) (recognizing that "[t]he 90-day statute
of limitations applies both to the discrimination and retaliation claims").

"A claimant who fails

to file a complaint within the ninety day statutory time period mandated by Title Vll, 42 U.S.C.
2000e5(f) (1994), generally forfeits the right to pursue his claim."
Products, Inc., 532 F. App'x 417 (4th Cir. 2013).

S

Mann v. Standard Motor

"Although the ninety day time period is

subject to equitable tolling, one who fails to act diligently cannot invoke equitable principles to
excuse lack of diligence."

Houdeshell v. Artery Prop. Mgmt., Inc., 107 F.3d 866 (4th Cir. 1997).

It is undisputed that EEOC issued the Notice of Right to Sue to Atakulu on July 12,2013.
See ECF No. I at ~ 80. Atakulu initially tiled her complaint in Atakulu Ion September 10, 2013.

Id. at ~ 81. This filing was made within the ninety day limitations period. Id. On November 25,
2013, however, that complaint was dismissed without prejudice.
2633-PJM (D. Md. Nov. 25, 2013), ECF NO.4.

See Atakulu v. Brown, 13-cv-

Following the dismissal of her complaint,

Atakulu did not file an amended complaint, nor did she file a Notice of Appeal. Instead, Atakulu
waited nearly four months before taking any action.

Then, on March 24, 2014, she filed the

instant complaint.

Because her .instant complaint was tiled more than ninety days from the

issuance ofEEOe's

notice of right to sue, Atakulu's complaint is untimely on its face.]

Atakulu contends that her claims are saved under principles of equitable tolling.

See

Watts-Means v. Prince George's Family Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993) (noting that
90-day time limit in discrimination

actions is subject to equitable tolling).

Equitable tolling,

however, is "reserved for those rare instances where ~ due to circumstances

external to the

Atakulu's reference to the 300-day EEOC statute oflimitations has no bearing on her instant
claim. See ECF No. 14-1 at fn. I. This 300-day limitations period concerns the timing with
which a claimant must file his or her initial charge of discriminations with the EEOC, not when a
claimant must file his or her complaint in federal district court.
3

10

party's own conduct - it would be unconscionable to enforce the limitation period against the
party and gross injustice would result."

Rouse v. Lee, 339 F3d 238, 246 (4th Cir. 2003) (en

banc) (internal quotation marks omitted).

"[E]quitable tolling must be guarded and infrequent,

lest circumstances

of individualized

hardship supplant the rules of clearly drafted statutes."

Gayle v. UPS, 40 I F.3d 222, 226 (4th Cir. 2005) (internal quotation marks omitted). In order to
demonstrate

entitlement

to

equitable

tolling,

Atakulu

must

"present

(\)

extraordinary

circumstances, (2) beyond [her] control or external to [her] own conduct, (3) that prevented [her]
from filing on time." United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (internal quotation
marks omitted).

In support of her claim to equitable tolling, Atakulu advances three core arguments.
First, she contends that given her pro se status she "should be granted special leniency regarding
procedural matters" because she does "not have any familiarity with formal judicial proceedings
or rules."

ECF No. 14-1 at 7. However, Atakulu's "pro se status and any attendant lack of

knowledge of the law is not the type of extraordinary circumstance which would justify equitable
tolling." Fishbackv.

Shearin, 2011 WL 5995071, *2 (D. Md. Nov. 29, 2011). See e.g., Barrow

s.s.

Assn., 932 F.2d 473, 478 (5th Cir. 1991) (refusing to apply equitable tolling

v. New Orleans

where the delay in filing was the result of petitioner's unfamiliarity with the legal process or his
lack oflegal representation); Smith v. McGinnis, 208 F3d 13, 18 (2nd Cir. 2000) (pro se status
does not establish sufficient ground for equitable tolling); Felder v. Johnson, 204 F3d 168, 171173 (5th Cir. 2000) (lack of notice of AEDPA amendments and ignorance of the law are not rare
and exceptional circumstances that warrant equitable tolling).
Next, Atakulu contends that because her "vision is poor, she had difficulty reading
through the documents she received from the court and did not have the means for proper

11

eyeglasses."

EeF No. 14-1 at 7. In this case, Atakulu's poor vision - however poor it may be

given that she had filed her pro se complaint just weeks prior - is not the type of extraordinary
circumstance that triggers the application of equitable tolling. See e.g., Furr v. Robinson, 2000
WL 152147, *2 (E.D.Va. Jan. 13,2000); ("[iJlliteracy and ignorance of the law is not sufficient
to create cause to lift or suspend a procedural bar to a federal cause of action"); Cruz v. Warden,
California Men's Colony, 2003 WL 22016786,

*I (N.D. Cal. 2003) (general allegation of

inability to speak English insufficient to toll statute oflimitations);

Bustos v. Faulkenberry, 2007

WL 540324, *3 (D.S.C. Feb. 15, 2007) (denying application of equitable tolling where the
plaintiff "missed the deadline due to his limited grasp ofthe English language").
Finally, Atakulu contends that she is entitled to equitable tolling because the dismissal
without prejudice of her prior complaint operated to toll the statute of limitations because at the
time of that dismissal the ninety day statute of limitations had already passed. ECF No. 14-1 at
8. Thus, according to Atakulu, following the dismissal of her initial complaint, she did not have
a "chance to refile her complaint to meet her original filing deadline [Jar to correct her mistake
of not completing the Marshal forms."

Id

However, "[tJhe ninety-day statute of limitations

period for Title VII actions is not tolled because the initial action was dismissed without
prejudice."

Mann v. Standard Motor Products, Inc., 532 F. App'x 417 (4th Cir. 2013). See also

Angles v. Dollar Tree Stores, Inc., 494 F. App'x 326, 329 (4th Cir. 2012) (recognizing "the
general rule that a Title VII complaint that has been filed but then dismissed without prejudice
does not toll the 90-day limitations period").

Under these facts and law, Atakulu is not entitled

to equitable tolling of the statute oflimitations.

In the alternative,

Atakulu argues that her new complaint is timely because under

Fed.R.Civ.P. 15(c) it relates back to the timely complaint she previously filed in Atakulu 1. "The

12

plain language of Rule 15, however, speaks of an 'amendment to a pleading,' not an entirely
separate cause of action."
2014).

Bratton-Bey v. Straughan, 2014 WL 359493, *5 (D. Md. Jan. 31,

Thus, "[tlhe relation back doctrine has application only in instances where an original

pleading

is amended . . . . The amendment

does not, however, relate back to any prior

proceedings which are not part of the action in question."
State of New York, 882 F.Supp. 37, 40 (N.D.N.Y.l995»;

Id (emphasis added) (citing Rayo v.
see also Angles, 494 F.App'x at 330 n.

8 ("In cases involving the relation back of an amended complaint to an 'original pleading,' under
Rule 15(c), courts have held that a complaint in one case may not relate back to a complaint in
another case to avoid the statute of limitations."); Carter v. Tex. Dep't of Health, 119 F.App'x
577,581 (5th Cir. 2004) (upholding district court's holding that an "original pleading" within the
meaning of Rule 15(c) cannot be a pleading filed in a different case); Jones v. Morton, 195 F.3d
153,160-61

(3d Cir. 1999) (denying habeas petitioner's relation back argument, reasoning that

"typically, when a complaint (or habeas petition) is dismissed without prejudice, that complaint
or petition is treated as if it never existed," and a subsequent action "cannot be considered an
amendment ...

but must be considered a new action."); Benge v. United States, 17 F.3d 1286,

1288 (10th Cir.1994) ("a separately filed claim, as opposed to an amendment or a supplementary
pleading, does not relate back to a previously filed claim.").
application to Atakulu's March 28, 2014 complaint.

In short, Rule 15(c) has no

Atakulu's complaint is therefore untimely

and will be dismissed as such.

VI.

CONCLUSION
Accordingly. for the aforementioned reasons, 'plaintiffs

v. Brown, 13-cv-2633-PJM
GRANTED.

Plaintiffs

Motion to Reopen Case Atakulu

(D. Md. 2013) is DENIED and Defendants'

complaint is therefore DISMISSED with prejudice.
13

Motion to Dismiss is

lSI
George Jarrod Hazel
United States District Judge

Dated: June 26, 2014

14