Hawver v. Nestorak et al

Filing 37

ORDER Granting Defendant's Motion to Dismiss 30 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KAREN HAWVER,
Plaintiff,

CASE NO. 13-11068
HON. DENISE PAGE HOOD

v.
THERESA NESTORAK,
CENTER FOR FAMILY HEALTH, INC.,
UNITED STATES,
Defendants.
/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [#30]

I.

BACKGROUND
On December 21, 2012, Plaintiff Karen Hawver (“Hawver”) filed this case

as Personal Representative of the Estate of Patricia Hawver in State of Michigan
Jackson County Circuit Court alleging medical negligence. (Doc # 1) Defendants
Theresa Nestorak (“Nestorak”) and Center for Family Health, Inc. removed the
case to this Court on March 8, 2013. Id. At that time Nestorak and Center for
Family Health were replaced with the United States because the Defendants were
deemed to be employees of the U.S. Public Health Service and therefore eligible
for coverage under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).
(Doc # 2)
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The Government first moved to dismiss this action on May 7, 2013. (Doc #
11) This Court dismissed the action, finding that Hawver failed to bring her suit
within the two-year statutory window, that equitable tolling was unavailable, and
that the Court lacked subject matter jurisdiction. (Doc # 17, Pg ID 247) The Court
relied on Rogers v. United States, 675 F.2d 123, 124 (6th Cir. 1982), which held
that there is no equitable exception to the jurisdictional prerequisites of the Federal
Tort Claims Act. Hawver appealed. (Doc # 21) After this Court issued its Order,
the Supreme Court resolved a circuit split and held that the FTCA’s statute of
limitations requirements are nonjurisdictional and subject to equitable tolling.
United States v. Wong, 135 S. Ct. 1625, 1638 (2015). The Sixth Circuit then
remanded the case back to this Court to determine whether equitable tolling saves
Hawver’s claims. (Doc # 24, Pg ID 261) The Court ordered limited discovery on
this issue, which the parties have completed. This matter is now before the Court
on the Government’s Motion to Dismiss, filed on October 19, 2016. (Doc # 30) A
Response and Reply were filed. (Doc # 33; Doc # 35) The Court held a hearing
on February 8, 2017.
The facts are as follows.

On December 31, 2009, 73-year-old Patricia

Hawver visited Center for Family Health in Jackson, Michigan and was treated by
nurse practitioner Nestorak. (Doc # 30-3) Patricia Hawver reported that she had
fallen three days earlier and that her pain was getting worse each day. Her medical
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records indicate that she suffered from several chronic health conditions at that
time. Id. Nestorak prescribed pain medication. Id.
On January 10, 2010, Patricia Hawver visited the emergency room at
Allegiance Health, a hospital in Jackson, Michigan because she was having back
pain. (Doc # 1, Pg ID 7) She reported that she had fallen approximately two
weeks earlier. Id. X-rays of her spine were negative for fractures, and she was
diagnosed with having a contusion and prescribed pain medication. Id.
On January 11, 2010, Patricia Hawver went back to Center for Family
Health and was again examined by Nestorak. Id. at 8. Patricia Hawver reported
the history of her fall and indicated that the pain had moved from her left to her
right side. Id. She reported feeling nauseous because of the pain, as well as
aggravated pain due to changing positions and lifting a heavy object. (Doc # 30-4,
Pg ID 313) Nestorak ordered blood tests and indicated that Patricia Hawver had
hepatomegaly and may need a CT scan. (Doc # 1, Pg ID 8) Nestorak scheduled a
follow-up appointment for January 18, 2010.

The lab results, which became

available later on January 11th, showed elevated levels of blood urea, nitrogen,
creatinine, alk phosphatase, SGOT, SGPT, white blood cell count, and platelet
count. Id. According to the Complaint, no one from Center for Family Health
contacted Patricia Hawver regarding these abnormal results. Id.

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On January 14, 2010, Patricia Hawver went back to the emergency room at
Allegiance Health. Id. at 9. She was observed to have low blood pressure,
jaundice, and mental status changes. Id. Allegiance Health ran tests and found
several gallstones in her common bile duct, as well as a distended gallbladder with
surrounding fluid.

Id.

Patricia Hawver underwent a sphincterotomy and a

cholecystectomy to remove her gallbladder. Id. Complications arose from the
surgery, and Patricia Hawver suffered an infarction. Id. She fell into a coma and
was transferred to the intensive care unit at Allegiance Health. Id. On January 27,
2010, she was transferred to Care Link where she spent approximately two and a
half months receiving palliative care. Id. She was discharged home and passed
away on April 12, 2010, which Hawver alleges was due to her untreated gallstone
disease and pancreatitis. Id. Patricia Hawver’s death certificate states that she died
of arrhythmia from a CVA. (Doc # 33-2)
At the time of her death, Patricia Hawver had five adult children, some of
whom are disabled. (Doc # 30-5, Pg ID 317-18) Hawver (who is not disabled) is
one of Patricia Hawver’s children; she was 45 years old and living in Ann Arbor,
Michigan at the time of her mother’s death. Hawver has her own accounting
business and prior to that she was the finance director of several local non-profit
organizations. Id. at 317. Hawver was in Jackson, Michigan looking after her
mother from mid-January 2010 through mid-April 2010. Id. at 318. She did not
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request medical records or visit Center for Family Health during that time. (Doc #
30-6, Pg ID 347) According to an Affidavit of Hawver, she was devastated by her
mother’s death and incapable of dealing with her estate throughout 2010:
I was not capable of thinking about dealing with my mother’s estate
during the calendar year of 2010 because of 1) having to care for her
at her home with help from Hospice care; 2) my grief; 3) my having to
deal with funeral arrangements; 4) my being the only sibling who was
capable of dealing with the multiple family problems, especially the
situation with my sister Amy and her children; and my hectic life
generally.
(Doc # 30-5, Pg ID 319)
At the time of her mother’s death, Hawver was in a long-term relationship
with Beth Sherman (“Sherman”), her now spouse and a social worker. Sherman
had professional experience requesting medical records.

At her deposition,

Sherman testified that Hawver never asked her to request medical records in 2010.
(Doc # 30-7, Pg ID 385-88)
In 2010, Hawver and Sherman were involved in probate court proceedings
through which they eventually became guardians to Hawver’s sister’s two children.
They retained an estate planning and probate attorney, Jane Bassett (“Bassett”). In
the fall of 2010, Hawver met with Bassett and expressed concern regarding the
circumstances of her mother’s death. (Doc # 30-5, Pg ID 319) Bassett suggested
that Hawver become personal representative of her mother’s estate and request her

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medical records. Id. Hawver was appointed personal representative of the estate in
January 2011. Id.
Bassett referred Hawver to Ferris & Slater, P.C., Hawver’s attorneys in the
instant matter, and Hawver met with Heidi Slater-Ferris (“Slater-Ferris”) on April
19, 2011. (Doc # 30-5, Pg ID 319) She was told to bring medical records, but
Hawver had only requested records from Care Link at the time of the meeting with
Slater-Ferris. (Doc # 30-6, Pg ID 359-62) Slater-Ferris told Hawver that she
would need to obtain all of the medical records. (Doc # 30-5, Pg ID 320) Hawver
asserts that following this meeting she was “emotionally incapable of going to
Allegiance or Center for Family Health to gather the records,” and she asked
Sherman to help her. Id.
Sherman testified at her deposition that she made two or three phone calls to
Allegiance Health at some point between April 19, 2011 and the end of 2011 to
attempt to get the medical records. (Doc # 30-7, Pg ID 394-95) Sherman’s
brother-in-law had recently died in March 2011, which caused additional “family
disruption.”

Id. at 396.

Sherman also ran into “complexity” obtaining the

Allegiance Health records because of an outstanding medical bill that would need
to be paid before records could be released. Id. at 398. Sherman never requested
records from Center for Family Health because she assumed it was a part of
Allegiance Health, even though they were in different locations. Id. at 394-95.
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Hawver and Sherman do not know why they assumed Allegiance Health and
Center for Family Health were part of the same organization, and they concede that
they did nothing to investigate the relationship between the two. (Doc # 30-6, Pg
ID 334-38; Doc # 30-7, Pg ID 394-95) Sherman never requested records via
written authorization from either Allegiance Health or Center for Family Health.
(Doc # 30-7, Pg ID 397)
In the spring of 2012, Bassett called Hawver and Sherman and asked if they
had done anything further regarding Patricia Hawver’s medical care. (Doc # 30-7,
Pg ID 407) Sherman explained she was “stuck” and had tried a few times. Bassett
then subpoenaed the medical records from Allegiance Health and Center for
Family Health on May 7, 2012, but she failed to include the required written
authorization. Hawver then signed the authorization on May 12, 2012; Bassett
submitted the paperwork again; and Center for Family Health provided the medical
records on May 25, 2012. Id.; Doc # 30-6, Pg ID 377-78. Hawver also obtained
most of the records from Allegiance Health in May 2012. (Doc # 30-5, Pg ID 320)
She forwarded all of the medical records to Slater-Ferris in May 2012. Id.
On July 13, 2012, Hawver sent Nestorak and Center for Family Health a
Notice of Intent to File Claim under M.C.L. § 600.2912(b). Hawver did not sign a
retainer with Slater-Ferris until August 31, 2012. Id. On October 4, 2012, the
Department of Health and Human Services sent a letter to Hawver’s attorney
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stating that the FTCA was the exclusive remedy and advising that Hawver was
required to file an administrative claim with the agency. Hawver submitted an
administrative claim on November 5, 2012, which was denied because the claim
was received after the two-year statute of limitations period expired. (Doc # 3012) On December 21, 2012, Hawver filed suit in Jackson Circuit Court. The
matter was removed to this Court on March 8, 2013.
II.

ANALYSIS
A. Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for a motion

to dismiss for failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). This type of motion tests the legal sufficiency of the plaintiff's
complaint. Davey v. Tomlinson, 627 F. Supp. 1458, 1463 (E.D. Mich. 1986).
When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe
the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). A court, however, need not accept as
true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v.
Shelby Cnty., 220 F.3d 443, 446 (6th Cir. 2000)).

“[L]egal conclusions

masquerading as factual allegations will not suffice.” Edison v. State of Tenn.
Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). As the Supreme
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Court has explained, “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level… .” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see LULAC v.
Bresdesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive dismissal, the plaintiff
must offer sufficient factual allegations to make the asserted claim plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has facial plausibility
when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. The court primarily
considers the allegations in the complaint, although matters of public record,
orders, items appearing in the record of the case, and exhibits attached to the
complaint may also be taken into account. Amini v. Oberlin Coll., 259 F.3d 493,
502 (6th Cir. 2001).
B. FTCA’s Statute of Limitations and Accrual of Hawver’s Claim

Hawver argues in her Response that her Complaint was timely filed because
she filed her administrative tort claim within two years of the date the claim
accrued, which she now claims was May 2012 when she finally got the medical
records from Center for Family Health and Allegiance Health. The Government

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replies that, under the “law of the case” doctrine, the issue of when Hawver’s claim
accrued was already decided with Hawver’s concurrence, and there is nothing to
justify revisiting this issue now.
At oral argument, Hawver argued that, at the time of the Government’s first
motion to dismiss, there had been no discovery on the accrual issue. Hawver
argues that, after conducting depositions, there is now new evidence showing that
the claim accrued later because Hawver did not know the cause of the death of
Patricia Hawver until after she reviewed the medical records from Center for
Family Health and Allegiance Health in May 2012. The Government argues, and
the Court agrees, that there is no information now that is any different than the
information that was available to Hawver when she responded to the Government’s
first motion to dismiss.
“Under the doctrine of law of the case, findings made at one point in the
litigation become the law of the case for subsequent stages of that same litigation.”
United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). This doctrine
“promotes the finality and efficiency of the judicial process by protecting against
the agitation of settled issues,” and it “applies as much to the decisions of a
coordinate court in the same case as to a court’s own decisions.” Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (internal quotations and

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citations omitted). “A complimentary theory, the mandate rule, requires lower
courts to adhere to the commands of a superior court” and to “proceed in
accordance with the mandate and the law of the case as established on appeal.”
Moored, 38 F.3d at 1421 (internal quotations and citations omitted).
This Court found in its prior Order that Hawver’s claim accrued “on January
11, 2010, at the earliest (the date Plaintiff alleges Defendant first erred in
treatment/diagnoses) and April 12, 2010, [at] the latest (the date Ms. Hawver
passed away).” (Doc # 17, Pg ID 247) The Court specifically concluded that
Hawver failed to comply with the FTCA by failing to file her claim within the twoyear statute of limitations. Id. Hawver did not raise the argument of a later claim
accrual date subsequent to April 12, 2010 on appeal. In its opinion, the Sixth
Circuit also stated that “[b]y the time Hawver filed this lawsuit, the two-year
statute of limitations applicable to claims under the Act had run.” (Doc # 24, Pg
ID 261) The Sixth Circuit remanded the case specifically to give the Court “an
opportunity to determine whether equitable tolling saves Hawver’s claim.” Id.
The Court declines to revisit the statute of limitations and claim accrual issue that
was already decided at an earlier stage of this litigation, and the Court notes that
there is no new evidence to justify revisiting this issue.
C. Equitable Tolling

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Turning to the central question, whether equitable tolling saves Hawver’s
claim, the Government argues that Hawver has not carried her burden of showing
that she is entitled to equitable tolling. The Government argues that Hawver knew
or was unreasonable in remaining ignorant of the FTCA’s requirements, noting
that she did nothing to investigate potential defendants. The Government further
argues that Hawver was not diligent in pursuing her rights because she did not
become personal representative of the estate until January 2011 and did not retain
counsel until August 2012, after the FTCA’s statute of limitations had already
expired. The Government also notes that, from January 2010 through mid-April
2011, Hawver did nothing to even request medical records from the Center for
Family Health and Allegiance Health. Her first request for those records was after
the FTCA’s statute of limitations had already expired. The Government further
argues that it would be prejudiced if it had to defend against a claim based on
medical care provided over seven years ago, by a now retired employee.
Hawver responds that her grief and difficult family issues presented
extraordinary circumstances beyond her control that prevented opening an estate,
investigating the circumstances of her mother’s death, and timely filing. Hawver
argues that a reasonable person in this case would not have suspected that her
mother’s death was caused by medical negligence until obtaining the medical
records, which did not happen until May 2012. Hawver further argues that she had
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no reason to think that Center for Family Health and its employees were protected
under the FTCA, and that she relied on her knowledge of Michigan law allowing a
plaintiff to bring suit within two years of becoming personal representative.
“[T]he doctrine of equitable tolling allows federal courts 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.” Keenan v.
Bagley, 400 F.3d 417, 421 (6th Cir. 2005). In the Sixth Circuit, courts consider the
following factors when analyzing equitable tolling claims: “(1) lack of actual
notice of filing requirement; (2) lack of constructive knowledge of 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.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). These factors
are not comprehensive or always relevant, and courts must consider each equitable
tolling claim on a case-by-case basis.

Keenan, 400 F.3d at 421.

A lack of

diligence by a claimant, however, acts to defeat her claim for equitable tolling.
Chomic v. United States, 377 F.3d 607, 616 (6th Cir. 2004).
The Supreme Court recently reaffirmed that a claimant must establish the
following two distinct elements in order to establish an equitable tolling claim: (1)
that she has been pursuing her rights diligently, and (2) that some extraordinary

13

circumstance beyond her control stood in her way and prevented timely filing.
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755-56 (2016).
The doctrine of equitable tolling is to be used sparingly by federal courts.
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). It does not extend to
“garden variety claim[s] of excusable neglect” that causes an attorney or party to
miss a deadline. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). This
applies in the context of an FTCA claim, given that the statute provides a limited
waiver of the United States’ sovereign immunity. Bazzo v. United States, 494 Fed.
App’x 545, 547 (6th Cir. 2012). “The party seeking equitable tolling bears the
burden of proving he is entitled to it.” Robertson, 624 F.3d at 784.
Regarding Hawver’s knowledge of the FTCA’s requirements (her actual and
constructive knowledge, as well her reasonableness in remaining ignorant of the
FTCA’s requirements), the Court finds that Hawver was not reasonable in
remaining ignorant of the FTCA’s requirements. From January 2010 through midApril 2011, Hawver did nothing. She did not even request medical records from
Center for Family Health and Allegiance Health. Although she expressed concern
regarding the circumstances of her mother’s death as early as fall of 2010,
Hawver’s first request for the Allegiance Health records (via Sherman) was not
until sometime between April 19, 2011 and the end of 2011. Hawver’s first
request for the Center for Family Health records (via Bassett) was not until May
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2012, after the FTCA’s statute of limitations had already expired. Hawver and
Sherman concede that they did nothing to investigate the relationship between
Center for Family Health and Allegiance Health. (Doc # 30-6, Pg ID 334-38; Doc
# 30-7, Pg ID 394-95)
Hawver does not explain how Center for Family Health’s federally-qualified
status would have eluded a reasonably diligent party, and she does not contend that
anyone attempted to mislead her about Center for Family Health’s participation in
federal programs.

As the Seventh Circuit has noted, Public Health Service

operates a publicly available website that identifies all health centers that receive
federal funds (and lists Center for Family Health) and can only be sued under the
FTCA. See Blanche v. United States, 811 F.3d 953, 963 (7th Cir. 2016) (noting
that members of the medical malpractice bar should know enough to consult the
website when approached by a prospective client). The Government notes that
Hawver could have called a toll-free hotline (866-FTCA-HELP) or simply called
Center for Family Health to inquire about its malpractice insurance carrier, which
Hawver never attempted to do. Throughout the two-year statute of limitations
period in this case, Center for Family Health maintained a publicly available
website, which also stated that it was a “federally qualified health center (FQHC)”
since 2000. (Doc # 30-13, Pg ID 432-33) Hawver concedes that she never visited
the website or attempted to call or research Center for Family Health. The Court
15

concludes that the record reveals no obstacle to discovering Center for Family
Health’s federally-qualified status.
Regarding Hawver’s diligence in pursuing her rights, the above discussion is
pertinent because diligence requires reasonable efforts on the part of a plaintiff to
learn the legal identity and employment status of potential defendants and to obtain
relevant medical records. Hawver did not seek to become personal representative
of her mother’s estate until January 2011, a full year after Nestorak’s alleged
negligent medical care and over eight months after her mother’s death. Although
she met with a medical malpractice attorney in April 2011, she failed to retain the
firm until August 31, 2012 for unknown reasons, months after the FTCA’s statute
of limitations had already expired. Following the April 2011 meeting with SlaterFerris, besides asking Sherman for help obtaining medical records (which resulted
in Sherman making two or three phone calls to Allegiance Health in 2011),
Hawver did nothing else to pursue her potential lawsuit until the spring of 2012,
about a year and a half after Bassett initially suggested that Hawver obtain the
relevant medical records. In support of her argument that she diligently pursued
her rights, Hawver notes that she filed suit within Michigan’s statute of
limitations.1 As courts have noted, however, if that were enough for equitable
1

Under Michigan law, the personal representative of an estate may commence an action at any
time within two years from the date of the appointment of the personal representative, but an
action shall not be commenced later than five years from the date the claim accrued. See M.C.L.
§ 600.5852.
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tolling, then the FTCA’s statute of limitations “would have no bite.” See Norman
v. United States, 467 F.3d 773, 776 (D.C. Cir. 2006) (noting that Congress
expressly rejected this proposition in the Westfall Act, “which allows timely filed
state-court tort claims removed to federal court to proceed only if the state-court
action was filed within the FTCA’s two-year statute of limitations”); Chomic,  377
F.3d at 615. Under these facts, the Court finds that Hawver was not diligent in
pursuing her rights.
Regarding prejudice to the Government, the Court finds that Hawver has not
shown that the Government would not be prejudiced by having to defend against a
claim based on medical care provided by a now retired employee over seven years
ago.
Hawver relies primarily on three cases from other circuits, which are all
distinguishable from this case. The first is Santos ex rel. Beato v. United States,
559 F.3d 189 (3d Cir. 2009). The Third Circuit concluded that equitable tolling
was appropriate in Santos because the plaintiff had retained counsel within months
of her child’s injury; the name of the medical provider, “York Health Corporation,”
sounded like a private enterprise; the plaintiff’s counsel diligently researched the
possible defendants (including reviewing medical records, as well as
corresponding with, visiting, and performing a public records search on York
Health); and, at the time the case was decided, there was no publicly available
17

information indicating York Health’s federal status. Id. at 198-203. The Third
Circuit in Santos was also particularly concerned with a statute of limitations that
would “ensnare children,” the plaintiffs who would likely be invoking statutory
tolling in Pennsylvania. Id. at 204 (“[W]e have no doubt at all that if Santos had
been 18 years old . . . when her cause of action accrued she would have brought her
claim in the state court within two years of that date so that the Westfall Act would
have saved it.”).
In contrast, Hawver waited two years and four months after her mother’s
death to retain counsel; the name Center for Family Health sounds more like a
government entity than a private enterprise; there is no indication that anyone
diligently researched Center for Family Health’s status at any point; and there was
publicly available information indicating Center for Family Health’s federal status
as discussed above.
Hawver next relies on Phillips v. Generations Family Health Ctr., 723 F.3d
144 (2d Cir. 2013). In Phillips, the Second Circuit expressly offered “no opinion
concerning whether the plaintiff’s lawyers were diligent, or whether equitable
tolling should ultimately be granted.” Id. at 155. Rather, the court remanded the
case for the district court to consider the totality of the circumstances in
determining whether the lawyers lacked diligence. Id. The court did note that the
plaintiff had timely retained counsel, and that the plaintiff’s lawyers had visited the
18

provider’s website, looked at its medical records, and performed a corporate search
before the FTCA’s statute of limitations period expired. Id.
In contrast, Hawver did not timely retain counsel, and no one visited Center
for Family Health’s website, looked at its medical records, or performed a
corporate search before the FTCA’s statute of limitations period expired.
Hawver also relies on Valdez ex rel. Donely v. United States, 518 F.3d 173
(2d Cir. 2008). In Valdez, the Second Circuit remanded the case for the district
court to develop the record sufficiently to determine the accrual date of the
plaintiffs’ malpractice claim. Id. at 182. The court did not resolve the issue of
whether the district court correctly applied the doctrine of equitable tolling. Id.
While the Court recognizes that Hawver and her family were going through
a difficult period and empathizes, the Court finds that, unfortunately, at no time
during the FTCA’s two-year statute of limitations period did Hawver make any
effort to identify the employment status of Defendants. Hawver did not obtain and
review medical records from Center for Family Health until May 2012, and she did
not retain counsel until August 2012 – after the FTCA’s statute of limitations had
already expired. The Court concludes that Hawver’s claim is an instance of failure
to discover the identity of a defendant amounting only to excusable neglect, and
not enough for the Court to apply equitable tolling in this case. Defendant’s
Motion to Dismiss is granted.
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III.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant United States’s Motion for

Dismiss (Doc # 30) is GRANTED.
IT IS FURTHER ORDERED that this action is dismissed.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: May 19, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on May 19, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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