GILLIE v. ESPOSITO et al

Filing 43

OPINION. Signed by Judge Jerome B. Simandle on 12/11/2018. (rss, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DONTA TYRONE GILLIE,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 14-3704 (JBS-JS)

v.
STEVEN ESPOSITO, et al.,

OPINION
Defendants.

APPEARANCES:
JOSEPH P. MCNULTY, ESQ.
GREGORY G. WAITE, ESQ.
Kennedys CMK LLP
120 Mountain View Boulevard
P.O. Box 650
Basking Ridge, New Jersey 07920
Attorneys for Plaintiff Donta Tyrone Gillie
CRAIG CARPENITO, United States Attorney District of New Jersey
By: DAVID V. SIMUNOVICH, Assistant United States Attorney
Office of the United States Attorney
970 Broad Street, Suite 700
Newark, New Jersey 08101
Attorneys for Defendant United States of America
SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court on Defendant United
States of America’s motion to dismiss the complaint. [Docket
Entry 35]. Plaintiff Donta Tyrone Gillie opposes the motion.
[Docket Entry 38]. The motion is being considered on the papers
pursuant to Federal Rule of Civil Procedure 78(b).

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The principal issues to be decided are (1) whether the
Court lacks jurisdiction over the amended complaint due to
Plaintiff’s failure to exhaust his administrative remedies prior
to filing his original complaint, and (2) whether the amended
complaint is time-barred under the Federal Tort Claims Act
(“FTCA”). The Court finds that it has jurisdiction over the
complaint under the FTCA, but that is it barred by the statute
of limitations, 28 U.S.C. § 2401(b). Therefore, the Court will
grant the motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).
BACKGROUND
On June 10, 2014, Plaintiff filed a complaint in this Court
against Steven Esposito, Pradip Patel, and Abigail Lopez de
Lasalle in their individual capacities as employees of the
Federal Bureau of Prisons (“BOP”). [Complaint, Docket Entry 1].
The Court administratively terminated the complaint on July 14,
2014 after denying Plaintiff’s in forma pauperis application and
instructing the Clerk to send a new form to Plaintiff. [Docket
Entry 2]. The Court reopened the matter on April 21, 2015 after
receiving a new in forma pauperis application, [Docket Entry 3],
but the notice of electronic filing was returned as
undeliverable on May 4, 2015, [Docket Entry 4]. The Court
therefore administratively terminated the complaint on May 28,
2015 under Local Civil Rule 10.1. [Docket Entry 5].
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Plaintiff provided his new address on June 8, 2015, and the
Court reopened the proceedings. [Docket Entry 6]. Plaintiff
moved for nunc pro tunc service of his complaint, [Docket Entry
7], which the Court denied when it granted his in forma pauperis
application as it had not completed its screening under 28
U.S.C. § 1915, [Docket Entry 8].
The Court completed its screening of the complaint on
February 29, 2016. [Docket Entries 11 & 12]. The complaint
alleged that Plaintiff saw Esposito, a physician’s assistant,
for a “chronic care encounter” on February 3, 2013 while
Plaintiff was detained at FCI Fort Dix in New Jersey. [Complaint
¶ 2]. Plaintiff alleged that he had been experiencing pain in
his wrist and told Esposito he believed it was broken. [Id. ¶
3]. Esposito examined Plaintiff’s wrist and told him it was not
broken. He told Plaintiff to purchase a brace and over-thecounter pain medication to treat the pain and swelling. [Id. ¶
4]. He further indicated to Plaintiff that the pain and swelling
should decrease over time if Plaintiff followed the
instructions. [Id.].
Plaintiff questioned Esposito’s diagnosis as Esposito had
not performed an x-ray. Id. ¶¶ 4-5]. Esposito then became
“agitated and began screaming at [Plaintiff] that ‘[Plaintiff]
was no doctor,’ that [Esposito] ‘would determine if
[Plaintiff’s] wrist was broken’” and ordered Plaintiff to leave
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before Plaintiff could see his physician, Dr. Patel. [Id. ¶ 5].
Plaintiff asserts the clinical encounter form does not reflect
the seriousness of his pain or the fact he told Esposito he
believed his wrist was broken even though there is a notation of
“wrist pain.” [Id. ¶ 6].
Plaintiff purchased pain medication and a wrist brace as
per Esposito’s advice. [Id. ¶ 7]. His wrist continued to hurt,
so he returned to medical on May 2, 2013 for further care. [Id.
¶ 8]. Esposito examined Plaintiff’s wrist and recommended an xray. [Id. ¶ 9]. The x-ray was taken the next day and showed a
“nondisplaced scaphoid waist fracture” in Plaintiff’s left
wrist. [Id. ¶ 10]. Dr. Patel reviewed the x-ray report and
recommended that Plaintiff consult with orthopedics. [Id. ¶ 11].
Dr. Winfred Williams examined Plaintiff on May 21, 2013.
[Id. ¶ 13]. He recommended Plaintiff have surgery and warned him
that “due to delay between the injury and the proper diagnosis,
even with corrective surgery, [Plaintiff] would likely have
permanent damage to [his] wrist, thereby preventing [him] from
ever regaining the wrist’s full range of motion.” [Id. ¶ 14].
Plaintiff underwent surgery on July 22, 2013, which included
taking a bone graft and bone marrow from his hip for his wrist.
[Id. ¶ 15].
After surgery, Plaintiff was returned to his cell instead
of being reassigned to a first-floor room or being placed in the
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medical observation rooms. [Id. ¶ 16]. He was not given any pain
medication. [Id.]. The next day he was issued a wheelchair but
did not get a first-floor pass until four days later. In the
meantime, he was required to climb to the second floor three
times a day for meals. [Id. ¶ 17]. The prison moved him back to
the second floor on September 6, 2013, even though his firstfloor pass did not expire until August 6, 2014. [Id. ¶ 18].
The Court concluded that Plaintiff had failed to state a
claim for relief under the Eighth Amendment. [February 29, 2016
Opinion at 8-10]. It noted that “[t]o the extent the complaint
could be construed as raising claims under the Federal Tort
Claims Act (“FTCA”),” the Court could not conclude whether
jurisdiction would be appropriate because Plaintiff had not
provided information as to whether he had exhausted the FTCA’s
administrative remedies. [Id. at 12-13]. The complaint was
dismissed without prejudice. [Docket Entry 12]. The Court
granted Plaintiff leave to amend in the event he could show he
had exhausted his administrative remedies. [Id.].
Plaintiff submitted his motion to amend on April 15, 2016.
[Motion to Amend, Docket Entry 15]. The Court permitted the
amended complaint to proceed on December 22, 2016 as Plaintiff
submitted documentation that he had completed the FTCA’s
administrative remedies. [Docket Entries 17 & 18]. Plaintiff
later filed a motion for the appointment of counsel, and
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Magistrate Judge Schneider granted the motion on December 5,
2017. [Docket Entry 28].
The United States now moves to dismiss the amended
complaint under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). [Docket Entry 35]. It argues the Court lacks
jurisdiction over the amended complaint because Plaintiff failed
to exhaust his FTCA claim before filing his original complaint.
Alternatively, it argues the FTCA claim is barred by the statute
of limitations. Plaintiff argues his administrative remedies
were properly exhausted before he filed his amended complaint
and that the Court equitably tolled the statute of limitations
when it permitted him to amend his complaint.
The matter is now fully briefed and ripe for disposition.
Fed. R. Civ. P. 78(b).
III. STANDARD OF REVIEW
A party may move to dismiss a complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). Because federal courts are courts of limited
jurisdiction, the party seeking to invoke the court’s
jurisdiction bears the burden of proving the existence of
subject matter jurisdiction. See Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994). The court’s jurisdiction may be
challenged either facially (based on the legal sufficiency of
the claim) or factually (based on the sufficiency of a
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jurisdictional fact). Gould Elecs. v. U.S., 220 F.3d 169, 178
(3d Cir. 2000), modified on other grounds by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003).
A facial attack “challenges subject matter jurisdiction
without disputing the facts alleged in the complaint, and it
requires the court to ‘consider the allegations of the complaint
as true.’” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir.
2016) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3
(3d Cir. 2006)). The defendant bears the burden of showing no
claim has been stated. “In contrast, in a factual attack under
Rule 12(b)(1), the court may consider and weigh evidence outside
the pleadings to determine if it has jurisdiction. The plaintiff
has the burden of persuasion to convince the court it has
jurisdiction.” Gould Elecs., 220 F.3d at 178.
When considering a motion to dismiss a complaint for
failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the non-moving
party. A motion to dismiss may be granted only if the plaintiff
has failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require “detailed factual allegations,”
it requires “more than an unadorned, the-defendant-unlawfully7

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must
“tak[e] note of the elements [the] plaintiff must plead to state
a claim. Second, it should identify allegations that, because
they are no more than conclusions, are not entitled to the
assumption of truth. Finally, [w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d
780, 787 (3d Cir. 2016) (alterations in original) (internal
citations and quotation marks omitted). “[A] complaint's
allegations of historical fact continue to enjoy a highly
favorable standard of review at the motion-to-dismiss stage of
proceedings.” Id. at 790.
IV. ANALYSIS
The United States argues the complaint should be dismissed
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It
argues that the Court lacks jurisdiction over the complaint
because Plaintiff failed to exhaust his claim before filing
suit. Alternatively, it argues the amended complaint is barred
by the statute of limitations.

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A. Exhaustion of Administrative Remedies
“The FTCA waives sovereign immunity and grants district
courts jurisdiction over tort claims against the United States
‘under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.’” Gould
Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000)
(quoting 28 U.S.C. § 1346(b)(1)) (emphasis omitted), modified on
other grounds by Simon v. United States, 341 F.3d 193 (3d Cir.
2003). This waiver of sovereign immunity is limited, however.
The act “provides that an ‘action shall not be instituted
upon a claim against the United States for money damages’ unless
the claimant has first exhausted his administrative remedies.”
McNeil v. United States, 508 U.S. 106, 107 (1993) (quoting 28
U.S.C. § 2675(a)). To exhaust his administrative remedies, a
plaintiff suing under the FTCA must present the offending agency
with notice of the claim, including a “sum certain” demand for
monetary damages. White-Squire v. U.S. Postal Serv., 592 F.3d
453, 457 (3d Cir. 2010). Exhaustion occurs when either the
agency denies the claim or six months have passed without a
written denial of the claim. 28 U.S.C. § 2675(a). “This
requirement is jurisdictional and cannot be waived.” Shelton v.
Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015). Compare with United
States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) (holding FTCA
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time limitations under 28 U.S.C. § 2401(b) are nonjurisdictional).
There is no question that Plaintiff did not complete the
administrative procedures before filing the original complaint
in June 2014. On April 17, 2014, Plaintiff submitted
Administrative Claim No. TRT-NER-2014-03571 to the BOP for
consideration, [Docket Entry 15 at 18].1 On June 4, 2014,
Plaintiff submitted a complaint in this Court alleging
physician’s assistant Esposito, Dr. Patel, and Dr. de Lasalle
deprived him of adequate medical care at FCI Fort Dix. [Docket
Entry 1]. He alleged this was in violation of the Eighth
Amendment and asserted he was bringing his claim against the
individual employees in reliance on Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [Id. at
5]. He did not raise FTCA claims against the United States. The
BOP denied Plaintiff’s FTCA administrative claim on October 15,
2014. [Docket Entry 15 at 18]. The notice informed Plaintiff
that if he could “bring an action against the United States in
an appropriate United States District Court within six (6)

1

The Court may consider any documents “integral to or explicitly
relied upon in the complaint,” without converting a motion to
dismiss into a motion for summary judgment. In re Rockefeller
Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999)
(quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997)). Plaintiff submitted his
administrative claim notices with his motion to amend.
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months of the date of this memorandum” if he was dissatisfied
with the result. [Id.]. It was at this moment that Plaintiff
fully exhausted his administrative remedies.
The Court dismissed Plaintiff’s Bivens complaint for
failure to state a claim on February 29, 2016. [Docket Entry
12]. Mindful of its obligation to liberally construe pro se
pleadings, the Court considered whether the complaint raised a
claim under the FTCA. [Docket Entry 11 at 12]. It noted that
“[i]n the absence of this documentation, the Court cannot
determine whether it has jurisdiction over any potential FTCA
claims. As such, any FTCA claims cannot proceed at this time.”
[Id.]. It therefore permitted Plaintiff leave to amend to
include any FTCA claims if he could provide evidence that he
exhausted his administrative remedies. [Id.]. Plaintiff did so
when he filed his motion to amend on April 15, 2016. [Docket
Entry 15].
Plaintiff does not dispute these facts, but does dispute
that they deprive the Court of jurisdiction as exhaustion was
complete prior to the filing of the motion to amend the
complaint and the Court’s order granting that motion. The United
States argues exhaustion subsequent to filing of a complaint
does not cure the initial jurisdictional defect. [Docket Entry
35-1 at 14-15 (citing McNeil v. United States, 508 U.S. 106,
107-08 (1993); Accolla v. United States Gov’t, 369 F. App’x 408,
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406-10 (3d Cir. 2010))].

Other courts in this Circuit have held

in cases such as Plaintiff’s that
reliance on those case[s] is misplaced because the
McNeil case dealt with the situation where the original
complaint filed raised a claim only under the FTCA and
the Accolla case under both the FTCA and Bivens. The
cases did not deal with the situation where a court
dismissed the original complaint raising only a Bivens
claim with leave to file an amended complaint raising an
FTCA claim after the exhaustion of administrative
remedies.
Thomas v. Mace-Leibson, No. 1:14-CV-02316, 2015 WL 7736737, at
*3 (M.D. Pa. Dec. 1, 2015).
The Court agrees that McNeil and Accolla are
distinguishable and finds that it has jurisdiction over the
amended complaint. Unlike McNeil, Plaintiff did not raise a FTCA
claim in his initial filing. The initial complaint was intended
to be a Bivens Eighth Amendment complaint against individual,
federal employees; it was not an FTCA complaint against the
United States. This is further evident from the paperwork
submitted with the original complaint which indicated that
Plaintiff completed the internal BOP administrative remedies.
[Docket Entry 1-1 at 1]. See also 28 C.F.R. § 542.10 et seq. The
BOP’s Administrative Remedy Program is separate and distinct
from the statutory administrative procedures under the FTCA.
Each procedure has separate forms and filing deadlines. See 28
C.F.R. § 542.10(c) (noting that “[t]here are statutorilymandated procedures in place for tort claims (28 CFR part 543,
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subpart C)”). The Court concluded Plaintiff had failed to state
a Bivens claim and sua sponte mentioned the FTCA out of its
obligation to liberally construe pro se pleadings, not because
it determined that Plaintiff was in fact raising FTCA claims in
his complaint.
Plaintiff’s FTCA administrative remedies were complete by
the time he filed his motion to amend on April 15, 2016 to add
an FTCA cause of action. The Court therefore has jurisdiction
over the FTCA complaint. 28 U.S.C. § 2675(a).
B. Equitable Tolling
The United States further argues that the amended complaint
should be dismissed because it was filed more than six months
after the BOP denied Plaintiff’s FTCA claim. The Supreme Court
has held that the filing dates under the FTCA are not
jurisdictional, unlike the exhaustion requirement, and are
subject to equitable tolling. United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1633 (2015). Section 2401(b) “does not define a
federal court's jurisdiction over tort claims generally, address
its authority to hear untimely suits, or in any way cabin its
usual equitable powers.” Id. See also Santos ex rel. Beato v.
United States, 559 F.3d 189, 197 (3d Cir. 2009). That being
said, for the following reasons the Court will not equitably
toll the time and will grant the United States’ motion to
dismiss the complaint under Rule 12(b)(6).
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“The remedy of equitable tolling is extraordinary, and we
extend it ‘only sparingly.’ It is especially appropriate to be
restrictive with respect to extension of equitable tolling in
cases involving the waiver of the sovereign immunity of the
United States.” Santos, 559 F.3d at 197–98 (quoting Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Hedges v.
United States, 404 F.3d 744, 751 (3d Cir. 2005)). Plaintiff’s
FTCA administrative remedies were exhausted as of October 15,
2014 when the BOP denied Plaintiff’s FTCA administrative claim.
[Docket Entry 15 at 18]. Under 28 U.S.C. § 2401(b), Plaintiff
had six months to file a FTCA complaint in federal court, or
until April 15, 2015. Plaintiff did not submit his motion to
amend to state an FTCA claim until April 15, 2016, one year out
of time.
Plaintiff argues the Court, in effect, tolled the statute
of limitations when it permitted him to file an amended
complaint containing an FTCA claim and when it filed the amended
complaint containing the FTCA claim. He also asserts the fact
that he was transferred within the federal prison system many
times during the relevant period warrants the application of
equitable tolling. Contrary to Plaintiff’s arguments, the Court
did not toll the statute of limitations, explicitly or
effectively, when it permitted the amended complaint containing
the FTCA claim to proceed on December 22, 2016. The statute of
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limitations is an affirmative defense to be raised by a
defendant, here the United States, and a court may only dismiss
a seemingly time-barred complaint sua sponte on statute of
limitations grounds in limited circumstances. See Ostuni v. Wa
Wa's Mart, 532 F. App’x 110, 111–12 (3d Cir. 2013) (per curiam).
Although the dates of exhaustion and filing of the FTCA claim
were apparent at the time of Plaintiff’s motion to amend, the
Court could not rule out the possibility of equitable tolling
based on the face of the amended complaint and submitted
documents.
With the benefit of briefing from the parties now before
the Court, the Court finds that equitable tolling would be
inappropriate in these circumstances. Plaintiff has not set
forth any circumstances justifying a delay of a year in filing
his FTCA claim. Equitable tolling “is only appropriate ‘(1)
where the defendant has actively misled the plaintiff respecting
the plaintiff's cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his or her
rights; or (3) where the plaintiff has timely asserted his or
her rights mistakenly in the wrong forum.’” Omar v. Blackman,
590 F. App’x 162, 166 (3d Cir. 2014) (quoting Santos, 559 F.3d
at 197). Routine transfers within the prison system are not
extraordinary circumstances.
The motion to dismiss is granted.
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V. CONCLUSION
For the reasons stated above, the motion to dismiss is
granted. An accompanying Order will be entered.

December 11, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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