Lantigua-Almonte v. United States of America et al

Filing 6

MEMORANDUM AND ORDER: Plaintiff's 4 request to proceed in forma pauperis ("IFP") is granted pursuant to 28 U.S.C. § 1915. In an abundance of caution, and because of plaintiff's pro se status, plaintiff is he reby directed to show cause within 30 days of the date of this Order why this action should not be dismissed as time-barred. No summons will issue at this time and all further proceedings shall be stayed for 30 days or until plaintiff has complied with this Order. If plaintiff fails to comply with this Order within the time allowed, the case shall be dismissed and judgment shall enter. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 5/23/2012. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)

FILED

IN CUiRK'S OFFICE

U.8. DISTRfCT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* MAY ,2 3 2012 *

_______________________________x

BROOKLYN OFFICE

JUAN LANTIGUA-ALMONTE,
Plaintiff,
-against-

MEMORANDUM AND ORDER
12-CV-2115 (MKB)

UNITED STATES OF AMERICA, ET AL.,
Defendants.

____________________________________x
BRODIE, United States District Judge:
Plaintiff Juan Lantigua-Almonte, currently incarcerated at the Federal Correctional
Institution in Cumberland, Maryland, files this action pro se pursuant to the Federal Tort Claims
Act, 28 U.S.C. §§ 1346,2671-80 ("FTCA"). Plaintiffs request to proceed in forma pauperis
("IFP") is granted pursuant to 28 U.S.C. § 1915. For the reasons discussed below, plaintiff is
directed to show cause within thirty (30) days of this Order, why his complaint should not be
dismissed as time-barred.

STANDARD OF REVIEW
Pro se complaints are held to less stringent standards than pleadings drafted by attorneys
and the Court is required to read the plaintiff s pro se complaint liberally and interpret it as
raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89,94 (2007); Hughes
v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiffv. Sealed Defendant #1,537 F.3d 185,191-93 (2d
Cir.2008). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth
of "all well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch

Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009)). A complaint must plead sufficient facts to "state a claim to relief that is plausible on its

face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
BACKGROUND
Plaintiff alleges that on July 2,2010, he sustained knee and back injuries from a slip and
fall accident at the Metropolitan Detention Center ("MDC"). Compl. at 4. Plaintiff further
alleges that he received inadequate and untimely medical care for his injuries. Id On November
12, 2010, plaintiff had surgery for a "complete left knee reconstruction." Id. Plaintiff argues that
"had treatment been more timely, less damage to my knee and back would have been sustained."
Id. Plaintiff seeks $2,500,000.00 in damages. Compl. at 18.

DISCUSSION
Plaintiff invokes the jurisdiction of this Court pursuant to the FTCA. Exercising its
independent obligation to determine whether the Court has jurisdiction, Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999))
(Federal courts "have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party."), the Court must determine whether
plaintiff can maintain a sufficient FTC A claim to confer subject matter jurisdiction upon this
Court. The FTCA provides the exclusive remedy for a suit alleging damages for injury or loss of
property "resulting from the negligence or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment." 28 U.S.C.
§ 2679(b)(1). The United States has waived its sovereign immunity for these certain classes of
tort actions. 28 U.S.C. § 1346(b)(I). This waiver is contingent, however, on the claimant having
previously presented his or her claim to the appropriate federal agency and on that agency having
denied the claim. 28 U.S.C. § 2675(a) ("An action shall not be instituted ... [u]nless the
claimant shall have first presented the claim to the appropriate Federal agency and his claim shall
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have been finally denied by the agency in writing and sent to him by certified or registered
mail.")
The FTCA further provides:
A tort claim against the United States shall be forever barred unless it is presented
in writing to the appropriate Federal agency within two years after such claim
accrues or unless action is begun within six months after the date of mailing, by
certified or registered mail, of notice of final denial of the claim by the agency to
which it was presented.
28 U.S.C. § 2401(b). This exhaustion requirement is jurisdictional and cannot be waived.

Celestine v. Mounte Vernon Neighborhood Health Center, 403 F.3d 76,82 (2d Cir. 2005) (citing
McNeil v. United States, 508 U.S. 106, 113 (1993)); Rosenblatt v. St. John's Episcopal Hosp.,
No. 11 Civ. 1106,2012 WL 294518, at *3 (E.D.N.Y. Jan. 31, 2012); Castellanos v. Elrac Inc.,
No 07 Civ. 2191, 2008 WL 919641, at *2 (E.D.N.Y. Apr. 3, 2008).
Here, plaintiff states that on December 16, 2010, he filed an Administrative Tort Claim
with the Federal Bureau of Prisons ("BOP"). Compl. at 4 & Exh. 2. On February 2,2011, he
filed a supplemental claim. Compl. at 5 & Exh. 3. Plaintiff states that "[o]n June 21, 2011,
Henry J. Sadowski, Regional Counsel for the BOP's Northeast Regional Office sent a certified
notice to [p]laintiffwhich denied his Administrative Tort claim." Compl. at 5 & Exh 1.
Therefore, plaintiffs complaint is untimely as it was filed on April 27, 2012, more than six
months after he received the final agency determination. Thus, unless plaintiff establishes that he
is entitled to equitable tolling, this court is without jurisdiction to hear plaintiff s claim.
"As a general matter, a litigant seeking equitable tolling must establish two elements: '(1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.'" Bolarinwa v. Williams, 593 F.3d 226,231 (2d
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Cir. 2010) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007». Plaintiff states that he is
entitled to equitable tolling because he was "hindered from a timely filing due to bering]
transferred to another correctional facility as well as a language barrier." Compi. at 10.
"Because statutes of limitations protect important social interests in certainty, accuracy, and
repose, equitable tolling is considered a drastic remedy applicable only in rare and exceptional
circumstances." A.Q.C. ex reI. Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011)
(internal quotation marks and alteration omitted). Here, plaintiff has not made a sufficient
showing that he is entitled to equitable tolling.

CONCLUSION
In an abundance of caution, and because of plaintiff s pro se status, plaintiff is hereby
directed to show cause within thirty (30) days of the date of this order why this action should not
be dismissed as time-barred. Plaintiff shall provide more information, including dates, to
support his claim that his prison transfer and language barrier impeded the timely filing of this
complaint and that he is entitled to the drastic remedy of equitable tolling.
The submission must include the docket number 12-CV-2115 (MKB). No summons will
issue at this time and all further proceedings shall be stayed for thirty (30) days or until plaintiff
has complied with this Order. If plaintiff fails to comply with this Order within the time allowed,
the case shall be dismissed and judgment shall enter. The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3)

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that any appeal would not be taken in good faith and therefore in forma pauperis status is denied
for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

r SO Ol\DERED:
/S/
OK. BRODIE
Unite States District Judge

Dated: May 23, 2012
Brooklyn, New York

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