GARNER v. FEDERAL BUREAU OF PRISONS et al
MEMORANDUM OPINION FILED. Signed by Judge Noel L. Hillman on 4/27/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FEDERAL BUREAU OF PRISONS,
Civ. No. 16-2944 (NLH)
Kenneth Garner, #55474-054
P.O. Box 420
Fairton, NJ 08320
Plaintiff Pro se
HILLMAN, District Judge
On or about May 24, 2016, Plaintiff Kenneth Garner, a
prisoner confined at Federal Correctional Institution (“FCI”)
Fairton in Fairton, New Jersey, filed this civil rights action
asserting claims pursuant to the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2401, 2671, et seq. (“FTCA”), and Bivens v.
Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971). (ECF No. 1.)
IT APPEARING THAT:
On August 12, 2016, this Court entered an Opinion and
Order dismissing the Plaintiff’s Complaint in its entirety.
(August 12th Opinion and Order, ECF Nos. 6, 7.)
the Court found that Plaintiff had failed to allege facts to
state a conditions-of-confinement claim under the Eighth
Amendment and failed to allege facts to state an Eighth
Amendment claim for inadequate medical care.
The Court also found that Plaintiff’s FTCA claim was time-barred
because his Complaint was filed twelve days past the six-month
See 28 U.S.C. § 2401(b) (under the FTCA, a plaintiff
must commence an action against the United States within six
months of the notice of final denial by the agency to which it
Recognizing that Plaintiff may be able to allege
additional facts to state a Bivens claim or facts which entitle
him to equitable tolling for his FTCA claim, the Court granted
Plaintiff permission to file an amended complaint which
addresses the deficiencies identified in its Opinion and Order.
On August 26, 2016, Plaintiff filed a “Motion to File
Out of Time Due to Excusable Neglect.”
(ECF No. 8.)
Motion, Plaintiff requests leave to file his FTCA claim out of
time due to excusable neglect and “for reasons beyond his
(Id. at 1.)
Specifically, Plaintiff argues that the
prison was on “lock-down” due to an altercation with a group of
Even when the “lock-down” was lifted, the law
library was closed due to staff shortage and training.
Plaintiff alleges that these two circumstances prevented him
from filing his FTCA Complaint within the statute of limitations
(Id. at 2.)
As this Court stated in its previous Opinion, the FTCA
gives a district court exclusive jurisdiction over civil
 against the United States,  for money damages,
...  for injury or loss of property, ...  caused
by the negligent or wrongful act or omission of any
employee of the Government  while acting within the
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
Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995)
(quoting 28 U.S.C. § 1346(b)).
A plaintiff must first present the claims to a federal
agency and receive a final decision before filing a lawsuit. 28
U.S.C. §§ 1346(b), 2675(a); McNeil v. United States, 508 U.S.
106, 111 (1993).
A plaintiff must then commence an action
within six months of the notice of final denial by the agency to
which it was presented.
See 28 U.S.C. § 2401(b).
The Third Circuit has stated the following with regard
to equitable tolling in FTCA cases:
Equitable tolling, if available, can rescue a claim
otherwise barred as untimely by a statute of limitations
when a plaintiff has been prevented from filing in a
circumstances. This occurs (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.
But a plaintiff will not receive the benefit of equitable
tolling unless she exercised due diligence in pursuing
and preserving her claim. The principles of equitable
tolling thus do not extend to garden-variety claims of
excusable neglect. The remedy of equitable tolling is
extraordinary, and we extend it only sparingly.
Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d
Cir. 2009) (internal citations and quotation marks omitted).
Here, Plaintiff has failed to provide sufficient
information for the Court to decide whether he is entitled to
While he alleges that the prison was on
lockdown and the law library was thereafter unavailable,
Plaintiff does not identify when, and for how long, these
Without such information, the Court is
unable to determine whether the extraordinary remedy of
equitable tolling should be granted.
As a result, the
Court will deny his motion without prejudice.
Plaintiff will be
granted leave to file an amended request for equitable tolling
which provides the information discussed herein.
An appropriate order follows.
Dated: April 27, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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