Holt v. United States Marshals Service et al
MEMORANDUM AND ORDER: For the reason stated in the attached memorandum and Order, the government's motion to dismiss is granted. The Clerk of Court is directed to enter judgment accordingly, and to close this case. Ordered by Judge Roslynn R. Mauskopf on 9/30/2014. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
13-CV-0469 (RRM) (SMG)
- against UNITED STATES OF AMERICA,
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Shelton Holt commenced this action on January 28, 2013. (Compl. (Doc. No.
1).) The complaint alleged claims for false imprisonment, false arrest, negligence, negligent
infliction of emotional distress, and intentional infliction of emotional distress under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1346(b)(1). On
November 11, 2013, the United States filed a motion to dismiss the complaint for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons that
follow, the government’s motion is granted.
In early 2008, while on probation for a state felony weapons conviction, Holt was
arrested and charged in the Southern District of New York with conspiring to defraud the United
States. (See Compl. ¶¶ 7–8.) In December 2008, he was sentenced to fifteen months in prison.
At this stage, the Court’s review is limited to the facts alleged or incorporated by reference in the complaint,
documents attached to the complaint, and matters of which the Court may take judicial notice. See Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Diamond v. Local 807 Labor-Mgmt. Pension Fund, No. 12CV-5559 (RRM) (VVP), 2014 WL 527898, at *1 n.1 (E.D.N.Y. Feb. 7, 2014). The Court assumes the truth of the
facts alleged, and draws all reasonable inferences in Holt’s favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir.
2009). The Court is not, however, “bound to accept as true a[ny] legal conclusion couched as a factual allegation.”
Sharkey v. Quarantillo, 541 F.3d 75, 82–83 (2d Cir. 2008) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986));
Williams ex rel. United Guardianship Servs. v. Shah, No. 12-CV-3953 (RRM) (RML), 2014 WL 1311154 at *1 n.1
(E.D.N.Y. Mar. 30, 2014).
(Id. ¶ 10.) Because his federal conviction violated the conditions of his state probation, Holt also
received an additional one to three year indeterminate sentence in state criminal court. (Id. at ¶¶
11–12.) After reviewing Holt’s case, the Commissioner of the New York State Department of
Correctional Services fixed Holt’s state custody conditional release date as February 10, 2010.
(Id. ¶ 12.)
On September 21, 2009, Holt alleges he received a letter from a law clerk to the federal
judge that had imposed his fifteen-month sentence, which stated that Holt had completed his
federal sentence but was required to serve the remainder of his state sentence. (Id. at ¶ 13.) Holt
thus remained in custody. On February 10, 2010, however, he was not released. (Id. at ¶ 14.)
Instead, despite several complaints, Holt was transferred to multiple correctional facilities and
held in federal custody until March 25, 2010. (Id. at ¶¶ 14–18.) Holt was then released from
federal custody and transferred into the custody of New York State. (Id. at ¶ 18.)
In order to withstand the government’s motion to dismiss, Holt’s complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Although the complaint need not contain “‘detailed factual allegations,’”
simple “[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 (quoting Twombly, 550 U.S. at 555). Rather,
the complaint must include “enough facts to state a claim to relief that is plausible on its face,”
Twombly, 550 U.S. at 570, which means “factual content that allows the [C]ourt to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 570).
At the outset, it is important to note that this is not the first time that Holt has filed an
action alleging these claims. For the reasons explained infra, prior proceedings bear directly on
the instant motion. The Court therefore provides a brief description of the litigation that
preceded this case.2
On November 16, 2010, Holt filed suit in the United States District Court for the
Southern District of New York, alleging that he had been improperly detained after February 10,
2010. See Holt v. United States et al. (“Holt I”), No. 10-CV-8639 (LBS), Doc. No. 1 (S.D.N.Y.
Nov. 16, 2010). Holt I named as defendants the United States of America; the United States
Marshals Service; the City of New York; the Town of Newburgh, New York; and the Town of
Oriskany, New York. See id., Doc. No. 1. On April 7, 2011, the United States and the Marshals
Service moved to dismiss on the grounds that (1) Holt’s claims for “malicious abuse of process,
harassment, conspiracy, and false arrest” failed because 42 U.S.C. § 1983 does not apply to
federal defendants, and (2) Holt had failed to exhaust his administrative remedies as required
under 28 U.S.C. § 2675(a) with respect to his claims brought pursuant to the FTCA. See id.,
Doc. No. 10. On April 20, 2011, the City of New York also moved to dismiss, arguing that Holt
had failed to state a claim against the City and failed to provide a notice of claim as required by
New York General Municipal Law §§ 50-e and 50-i. See Holt I, Doc. No. 18. Rather than
oppose the motions, Holt voluntarily dismissed the case against the United States, the Marshals
Service, and the City of New York on July 15, 2011.3 See id., Doc. No. 20.
Although the complaint in this case fails to describe these prior proceedings, the Court may take judicial notice of
the previously-filed cases. Cf. Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.
2006) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998))
(“A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the
other litigation, but rather to establish the fact of such litigation and related filings.”).
The Honorable Leonard B. Sand endorsed Holt’s stipulation of voluntary dismissal three days later. See id., Doc.
No. 21. On October 25, 2011, Holt voluntarily dismissed the case against the remaining defendants. See Holt I,
Doc. No. 22. Judge Sand endorsed that stipulation on October 26, 2011. See id.
On August 29, 2011, Holt filed an administrative claim with the Department of Justice
that was forwarded to the Federal Bureau of Prisons (“BOP”) and the Marshals Service.4 (See
Silverman Decl., Ex. B (Doc. No. 14-4 at 2–5).) On February 29, 2012, the BOP notified Holt in
writing that it had denied his claim, and informed him that he could “bring an action against the
United States in an appropriate United States District Court within six (6) months.”5 (Id., Ex. C
(Doc. No. 14-4 at 9).) On June 13, 2012, the Marshals Service notified Holt in writing that
“[t]he BOP determination on the claim, on behalf of the United Sates, was final and conclusive,”
and therefore that it “w[ould] take no action” regarding Holt’s claim.6 (Id., Ex. D (Doc. No. 14-4
Holt then filed a second suit in the Southern District of New York on August 17, 2012,
alleging false imprisonment, false arrest, negligence, negligent infliction of emotional distress,
and intentional infliction of emotional distress under the FTCA. See Holt v. U.S. Marshals Serv.,
et al. (“Holt II”), No. 12-CV-6320 (JMF), Doc. No. 1 (S.D.N.Y. Aug. 17, 2012). On November
9, 2012, the Honorable Jesse M. Furman ordered Holt to “show cause in writing why th[e] case
should not be transferred to the Eastern District of New York” by submitting a “memorandum of
law, not to exceed 15 pages.” Id., Doc. No. 12. Rather than submit the briefing ordered by
Judge Furman, Holt’s counsel filed a letter on November 30, 2012, which stated that “[i]t has
come to our attention that an administrative error has been made by our office in the filing of the
While Holt’s actual letter is dated “August 29, 2010,” (see Decl. of Matthew Silverman (“Silverman Decl.”), Ex. A
(Doc. No. 14-4 at 2), this appears to be an error. (Compare id. at 5.)
Although Holt both references and relies on this letter in opposing the government’s motion to dismiss, (see, e.g.,
Pl.’s Opp’n (Doc. No. 14-5) at 2), he declined to attach a copy either to his complaint or to his memorandum of law.
The government, however, attached the letter to a declaration submitted with its motion papers. (See Silverman
Decl., Ex. C (Doc. No. 14-4 at 9).) The Court may consider extrinsic documents to which Holt “make[s] a clear,
definite and substantial reference.” Diamond, 2014 WL 527898, at *3 n.5 (quoting Helprin v. Harcourt, Inc., 277 F.
Supp. 2d 327, 330–31 (S.D.N.Y. 2003)).
Like the government, Holt cites the letter from the BOP dated February 29, 2012, as the operative notice of final
denial of his administrative claim. (See, e.g., Pl.’s Opp’n at 2.)
complaint in the instant matter,” and that counsel was “hereby notifying [the court] of
[counsel’s] intent to withdraw the complaint in the Southern District with leave to resubmit in
the proper venue.” Id., Doc. No. 13. On December 3, 2012, Judge Furman dismissed the case
without prejudice to refiling in the proper district. Id., Doc. No. 4.
Following his voluntary dismissal of Holt II, Holt took no action for almost two months.
No explanation has been provided for that delay. Finally, on January 28, 2013, Holt commenced
the instant action in this Court. (See Compl.) By the time this case was filed, however, more
than six months had passed since February 29, 2012, the date on which the BOP denied Holt’s
administrative claim. The United States now moves to dismiss Holt’s complaint, arguing that
this Court lacks subject matter jurisdiction as a result of his delinquency.
Statute of Limitations for FTCA Claims
The FTCA explicitly limits the time in which a putative plaintiff can bring an action
against the government. Pursuant to 28 U.S.C. § 2401(b), a tort claim against the United States
must be presented to the appropriate federal agency within two years of the claim’s accrual. If
the agency denies the claim, the plaintiff may bring an action in an appropriate federal district
court, provided the action is filed within six months of the agency’s notice of final denial. Id.
Here, there is no question that Holt did not file this case within six months of that notice. The
BOP denied Holt’s administrative claim on February 29, 2012.7 Pursuant to section 2401(b), his
deadline to commence a federal district court action was August 29, 2012. Holt did not file this
case until January 28, 2013. As such, this action was clearly filed outside the FTCA’s statute of
Notably, even were the Court to consider the subsequent letter sent by the Marshals Service on June 13, 2012, to
be the operative notice of final denial, this action was still filed after Holt’s six-month window had elapsed.
Holt argues, however, that the statute of limitations should be equitably tolled and this
action should proceed. “Equitable tolling allows courts to extend the statute of limitations
beyond the time of expiration as necessary to avoid inequitable circumstances.” Johnson v.
Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (citing Bowers v. Transportacion Maritima Mexicana,
S.A., 901 F.2d 258, 264 (2d Cir. 1990)). As an initial matter, the Second Circuit has yet to
decide whether equitable tolling is available for FTCA claims. See, e.g., Goldblatt v. Nat’l
Credit Union Admin., 502 F. App’x 53, 55 n.2 (2d Cir. 2012); Gov’t Employees Ins. Co. v.
United States, No. 13-CV-4063 (JFB) (WDW), 2014 WL 582164, at * 1 (E.D.N.Y. Feb. 14,
2014). This Court need not answer that question here. Even assuming arguendo that the
FTCA’s statute of limitations is subject to equitable tolling, Holt has failed to demonstrate that it
is appropriate in this case.
“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 (2d
Cir. 2011) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In addition, “the general
rule is that statutes of limitations are not tolled by bringing an action that is later voluntarily
dismissed.” Reape v. New York Daily News, No. 86-CV-3129 (CPS), 1996 WL 118552, at *2
(E.D.N.Y. Feb. 26, 1996), aff’d, 112 F.3d 505 (2d Cir. 1996) (citing M.W. Zack Metal Co. v. Int'l
Nav. Corp. of Monrovia, 675 F.2d 525, 528–29 (2d Cir. 1982), cert. denied 459 U.S. 1037). Holt
has failed to establish either element necessary to invoke equitable tolling.
First, Holt insists that he acted diligently because Holt II – the second action filed in the
Southern District – was filed within six months of the BOP’s final determination, and because he
refiled promptly in this Court following its dismissal by Judge Furman. To the extent that there
was a delay between the dismissal of the Holt II and the filing of this case, Holt insists that he
refiled “within a manner of weeks,” and argues that he is entitled to “a reasonable amount of
time to ‘traverse court-imposed administrative hurdles and file a new federal claim.’” (See Pl.’s
Opp’n at 4) (quoting Johnson, 86 F.3d at 11).) The Court disagrees.
The claims in this case were not diligently pursued. Since the BOP’s final denial of his
administrative claim, Holt has (1) repeatedly named improper parties to suit; (2) twice filed an
action in the incorrect venue; (3) waited, without explanation, to file Holt II until twelve days
before the statute of limitations expired; (4) voluntarily dismissed Holt II rather than seeking
transfer to the correct district; and (5) inexplicably waited almost two months to refile in this
Court. While Holt II was timely filed, “the mere filing of a suit by [a plaintiff] within the
limitations period d[oes] not forever toll [the] statute of limitations.” M.W. Zack Metal Co., 675
F.2d at 529; see also McGregor v. United States, 933 F.2d 156 (2d Cir. 1991) (rejecting the
argument that a timely-filed FTCA suit tolled the running of the limitations clock for the filing of
a successive suit). And contrary to Holt’s misleading attempt to characterize his delay in refiling
as “a manner of weeks,” the period of time in question actually spanned a lengthy eight weeks.
That is a significant delay for which Holt has offered no explanation.8 The delay is especially
puzzling given that the short complaint filed in this action is identical to that previously filed in
In contrast, the court in McGregor affirmed the dismissal of an action as barred by the statute of limitations even
though it was filed on the same day that a prior suit was dismissed. See 933 F.2d at 159.
Holt nonetheless argues that he is entitled to equitable tolling under the case of Johnson
v. Nyack Hospital, which held that “to ensure that unfair prejudice does not result from a
deferring court’s without-prejudice dismissal, courts have protected a plaintiff’s rights with the
doctrine of equitable tolling,” by “provid[ing] a plaintiff with ‘just so much extra time as he
needs, despite all due diligence on his part,’ to traverse court-imposed administrative hurdles and
file a new federal claim.” 86 F.3d at 11 (quoting Heck v. Humphrey, 997 F.2d 355, 357–58 (7th
Cir. 1993) (emphasis omitted), aff’d on other grounds, 512 U.S. 477 (1994)). But Holt
completely misreads Johnson.
First, the “administrative hurdles” referenced in that case were the agency procedures to
which a plaintiff is referred when a court dismisses an action under the doctrine of primary
jurisdiction, not the traditional ministerial steps an attorney takes to file a lawsuit.9 See Johnson,
86 F.3d at 11. Here, Holt overcame any such administrative obstacles when he timely filed Holt
II in the Southern District after the dismissal of Holt I. Johnson thus has little, if anything, to say
about the delay in this case. Moreover, Johnson does not dispense with the requirement that a
plaintiff diligently pursue his claims. See id. That simply did not occur here and, as such, Holt
is not entitled to equitable tolling of the statute of limitations.
As indicated above, Holt was not diligent in pursuing the claims in this case. Equitable
tolling is also inappropriate, however, because Holt has failed to identify any “extraordinary
circumstance [that] stood in his way.” See Castillo, 656 F.3d at 144. Instead, Holt argues that he
need not demonstrate any extraordinary circumstance merely because Holt II was dismissed
without prejudice. Again Holt relies heavily on Johnson, and again that case does not stand for
In any event, Holt has also failed to cite any “court-imposed administrative hurdles” that could conceivably have
prevented him from timely refiling this case.
the principle he advocates. Johnson did not dispense with the requirement that a plaintiff
establish an extraordinary circumstance sufficient to toll the applicable statute of limitations. See
86 F.3d at 12 (citing Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985),
and noting that equitable tolling has been applied “‘as a matter of fairness’ where a plaintiff has
been ‘prevented in some extraordinary way from exercising his rights’”). Holt’s failure to point
to any reason – let alone an extraordinary circumstance – that prevented him from timely filing
this action also renders equitable tolling inappropriate.
Despite failing to demonstrate diligence or an extraordinary circumstance warranting
equitable tolling of the FTCA’s statute of limitations, Holt nevertheless insists that tolling is
appropriate because his late refiling did not prejudice the government.10 That proposition is
plainly contrary to law. “Equitable tolling will not apply unless a plaintiff has acted diligently to
protect his rights,” and “while an absence of prejudice to [a] defendant is to be considered, it
does not constitute an independent basis upon which to equitably toll” the statute of limitations.
Richards v. N. Shore Long Island, No. 10-CV-4544 (LDW), 2011 WL 6102055, at *4 (E.D.N.Y.
Dec. 6, 2011) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151–52 (1984)); see
also Yesh Diamonds, Inc. v. Yashaya, No. 09-CV-2016 (DLI) (RER), 2010 WL 3851993, at *3
(E.D.N.Y. Sept. 27, 2010) (same). Because Holt has not alleged an adequate independent basis,
a lack of prejudice to the government is insufficient to justify equitable tolling. Moreover, “[t]he
mere fact that [a] defendant had notice of the potential claim does not erase the prejudice [it]
suffer[s] through loss of witnesses . . . and the dimming of memories through passage of time,”
At a pre-motion conference held on September 12, 2013, counsel for Holt initially suggested that he had indicated
to the government attorney assigned to Holt II that he would be refiling in this Court. Counsel later admitted,
however, that he never discussed the transfer with the government and that the only notice provided to the
government was that afforded by the actual filing and service of the new complaint.
Reape, 1996 WL 118552, at *3, not to mention the time and resources expended to defend
numerous successive actions.
“It is fundamental that a lawyer investigating a possible claim on behalf of a client needs
to investigate not only whether a potential claim exists in the abstract, but also who would be the
appropriate parties to sue, and what, if any, restrictions on the time and forum for bringing such a
claim might exist.” Castillo, 656 F.3d at 145. It is telling that no reason has been offered for the
eight-week delay that contravened the statute of limitations in this case. Based on the lack of
diligence in pursuing these claims and the absence of any explanation for the significant delay,
equitable tolling is inappropriate.
For the foregoing reasons, the government’s motion to dismiss is granted. The Clerk of
Court is directed to enter judgment accordingly, and to close this case.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
September 30, 2014
ROSLYNN R. MAUSKOPF
United States District Judge
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