Sepulveda v. United States of America

Filing 16

MEMORANDUM re dft's MOTION to Dismiss 9 and REPORT AND RECOMMENDATIONS of MJ Carlson 13 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 11/18/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GEORGE SEPULVEDA,
Plaintiff
v.
UNITED STATES OF AMERICA,
Defendant

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CIVIL NO. 1:14-CV-0749
(Judge Rambo)
(Magistrate Judge Carlson)

MEMORANDUM
Before the court is an October 2, 2014, report and recommendation of the
magistrate judge (Doc. 13) to whom this matter was referred in which he recommends
that Defendant’s motion to dismiss be denied. Defendant, United States of America,
has filed objections to the report and recommendation to which no response has been
filed. The matter is ripe for disposition. For the reasons set forth below, the report
and recommendation will be rejected and Defendant’s motion to dismiss will be
granted.
I.

Background
Plaintiff, George Sepulveda, is a federal prisoner who filed this law suit

against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675,
et seq. on April 18, 2014. This is the second complaint on the same issue that Plaintiff
has filed. His first complaint was filed less than six months after submitting his
administrative tort claim to the appropriate agency. This rendered the first complaint
as premature. (See 28 U.S.C. § 2675(a).) The Bureau of Prisons denied the
administrative tort claim. The denial letter advised Plaintiff that he had six months
from the date of denial to file his claim in federal court. Plaintiff filed this second law
suit on April 18, 2014, eleven months after he denial of the administrative agency.

II.

Discussion
The magistrate judge opined that Plaintiff is entitled to equitable tolling

of the statute of limitations because Plaintiff timely asserted his rights in the filing of
the first complaint but “mistakenly in the wrong forum.” (Doc. 13, p. 14.) Defendant
argues that (1) the first and second complaints were filed in the proper forum, i.e., the
United States District Court for the Middle District of Pennsylvania; (2) the first
complaint was filed prematurely (28 U.S.C. § 2675(a)); and (3) the second complaint
was not timely filed (28 U.S.C. § 2401(b)).
III.

Conclusion
This court agrees that Plaintiff is barred from proceeding and that

equitable tolling does not apply. This court adopts the arguments and reasoning set
forth in Defendant’s brief in support of its objections to the report and
recommendation (Doc. 15). The court will, therefore, reject the report and
recommendation and grant Defendant’s motion to dismiss for lack of subject matter
jurisdiction. An appropriate order will be issued.

s/Sylvia H. Rambo
United States District Judge
Dated: November 18, 2014.

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