Reyes v. UNITED STATES OF AMERICA et al

Filing 49

MEMORANDUM OPINION (Order to follow as separate docket entry) - Having found that Reyes has not shown grounds to reconsider our prior ruling, and having found: (1) that this limitations period prescribed by the Federal Tort ClaimsAct applies here, a nd bars this claim; and (2) further concluding that Reyes still has not presented legal or factual grounds justifying equitable tolling of the statute of limitations, this motion to reconsider will be denied and this action will remain dismissed as time-barred. Signed by Magistrate Judge Martin C. Carlson on August 22, 2014. (kjn)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE REYES,

:
:
Plaintiff
:
:
v.
:
:
UNITED STATES OF AMERICA, :
:
Defendant
:

Civil No. 3:13-CV-974

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

Statement of Facts and of the Case.

This case comes before the court on a motion to reconsider our prior opinion and
order dismissing this action on statute of limitations grounds. (Doc. 45.) For the
reasons set forth below, this motion will be denied.
The pertinent facts here can be simply stated: On April 16, 2013, the pro se
plaintiff, a federal prisoner formerly housed in the United States Penitentiary, Canaan,
brought this action suing the United States and alleging that in June of 2011 the prison
served inmates chicken fajitas. (Doc. 1.) According to the plaintiff, the chicken was
bad, and was tainted with salmonella bacteria. (Id.) Consequently, the plaintiff
contracted food poisoning, and suffered excruciating pain and symptoms which
included headaches, diarrhea, abdominal pains, nausea, chills, vomiting, inability to eat
and profuse sweating. (Id.) Alleging negligence on the part of the prison in the

preparation and service of this food, the plaintiff seeks damages from the United States
pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq.
On March 17, 2014 the defendant moved to dismiss this complaint, citing a
procedural failure by the plaintiff, a failure to timely file this complaint after
exhausting his administrative remedies. (Doc. 27.) Such timely filing is required by law
before an inmate may proceed into federal court. This motion to dismiss was supported
by a declaration indicating that the plaintiff filed this complaint more than 6 months
after his administrative claim was denied. In particular, the uncontested evidence
showed that following this food poisoning incident Reyes submitted an administrative
tort claim to the Bureau of Prisons Regional Counsel’s office on November 9, 2011.
(Doc. 28, Declaration of Kimberly Sutton (Ex. A) ¶ 3; SF-95 (Attach. 1)). Shortly after
filing this claim, on January 17, 2012 Reyes was transferred out of the United States
Penitentiary Canaan to the Federal Correctional Institution Schuylkill. While Reyes
asserted that this transfer impeded his ability to file a complaint, the undisputed facts
belied this assertion. Thus, on March 14, 2012, the Bureau of Prisons provided Reyes
with an acknowledgment of the receipt of his administrative tort claim at his new place
of confinement, FCI Schuylkill. (Doc. 28-1.) Further, several months later, on May 8,
2012, the Bureau of Prisons Regional Office notified Reyes that his tort claim was
denied. (Id., Sutton Decl. ¶ 5; Denial Letter (Attach. 2).) This notification was also
provided to Reyes at his current place of confinement, FCI Schuylkill, and informed
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Reyes that if he was dissatisfied with this decision, he “may bring an action against
the United States in an appropriate United States District Court within six (6) months
of the date of this memorandum.” (Id.) Despite this May 8, 2012 written notice that
Reyes “may bring an action against the United States in an appropriate United States
District Court within six (6) months of the date of this memorandum,” Reyes did not
file his complaint for another 11 months, until April 2013. In fact, Reyes’ complaint,
which was a simple form document, was dated April 11, 2013 and was docketed by the
Court on April 16, 2013, almost a year after Reyes was notified that his administrative
claim had been denied. (Doc. 1.)
For his part, Reyes initially opposed this motion to dismiss arguing that he was
entitled to equitable tolling of this filing deadline since his prison transfer and the loss
of some legal files impeded him in filing this action. (Doc. 34.) In our decision
dismissing this complaint, we rejected this equitable tolling claim noting, first, that
Reyes’ transfer occurred in January 2012, long before his filing deadline in this
litigation. In addition, we found that it was clear that the notices regarding the
disposition of Reyes’ administrative tort claim, and the instructions that he needed to
act within six months of the denial of that claim, were sent to Reyes at his current place
of confinement, FCI Schuylkill. Therefore, Reyes’ transfer did not impede his receipt
of this notice regarding his administrative tort claim and his duty to timely file his
complaint. Further, during this same time period from May through November
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2012,we observed that dozens of other inmate-litigants were able to timely file civil
complaints arising out of this food poisoning episode, a factor which undermined
Reyes’ assertion that unusual, extraordinary obstacles preventing inmate filings.
Moreover, we found that the complaint which Reyes belatedly filed some 11 months
after his administrative tort claim was denied was simply a 7-page form notice pleading
of the type submitted by numerous other inmates in the course of this litigation. This
form pleading merely required Reyes to fill in his name and address in order to tender
this complaint to the court, steps which with the exercise of due diligence Reyes should
have been able to complete in less than six months. Accordingly, on these facts, where
nearly a year elapsed between the denial of the administrative claim and the filing of
this lawsuit, we granted this motion to dismiss and dismissed the plaintiff’s complaint.
(Docs. 43 and 44.)
Reyes has now filed a motion to reconsider this ruling. (Doc. 45.) That motion
simply asserts that Reyes did not receive notice of the denial of his administrative
claim, a claim that is contradicted by the records before this court, which show that
notice of this denial was sent to Reyes at FCI Schuylkill in May 2012. On the basis of
this discredited factual assertion, Reyes asks us to reconsider our ruling in this matter,
and reinstate this lawsuit. (Id.) The defendant has opposed this motion, (Doc. 48), and
this matter is now ripe for resolution.
For the reasons set forth below, this motion will be denied.
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II.

Discussion
A.

Motion to Re-Consider–The Legal Standard

The legal standards that govern motions to reconsider are both clear, and clearly
compelling. “The purpose of a motion for reconsideration is to correct manifest errors
of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir. 1985). Typically such a motion should only be granted in three,
narrowly defined circumstances, where there is either : "(1) [an] intervening change in
controlling law, (2) availability of new evidence not previously available, or (3) need
to correct a clear error of law or prevent manifest injustice". Dodge v. Susquehanna
Univ., 796 F.Supp. 829, 830 (M.D. Pa. 1992 ). As the United States Court of Appeals
for the Third Circuit has aptly observed:
“The purpose of a motion for reconsideration ... is to correct manifest
errors of law or fact or to present newly discovered evidence.” Max's
Seafood Café, 176 F.3d at 677 (quoting Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir.1985)). “Accordingly, a judgment may be altered
or amended if the party seeking reconsideration shows at least one of the
following grounds: (1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court
granted the motion for summary judgment; or (3) the need to correct a
clear error of law or fact or to prevent manifest injustice.” Id. (citation omitted).
Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d
237, 251 (3d Cir. 2010).

Thus, it is well-settled that a mere disagreement with the court does not translate
into the type of clear error of law which justifies reconsideration of a ruling. Dodge,
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796 F.Supp. at 830. Furthermore, "[b]ecause federal courts have a strong interest in the
finality of judgments, motions for reconsideration should be granted sparingly."
Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa.
1995). Moreover, it is evident that a motion for reconsideration is not a tool to relitigate and reargue issues which have already been considered and disposed of by the
court. Dodge, 796 F.Supp. at 830. Rather, such a motion is appropriate only where the
court has misunderstood a party or where there has been a significant change in law or
facts since the court originally ruled on that issue. See Above the Belt, Inc. v. Mel
Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).
B.

Reyes Has Not Presented Grounds Justifying Reconsideration
of Our Prior Decision Dismissing This Action

Judged against these exacting benchmarks we find that Reyes has not provided
us with grounds which would justify reconsidering our prior opinion and order
dismissing this case. At the outset, we note that there has not been an intervening
change in the controlling legal standards governing this statute of limitations claims
under the FTCA. Quite the contrary, those legal standards remain as they were when
we first ruled upon this matter, and continue to provide that the plaintiff’s failure to
timely pursue this case has substantive significance in this litigation.
As we previously noted, In general, the United States enjoys sovereign immunity
from suit unless it otherwise consents to be sued. White-Squire v. U.S. Postal Serv.,

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592 F.3d 453, 456 (3d Cir. 2010). The United States’ “consent to be sued must be
‘unequivocally expressed,’ and the terms of such consent define the court’s subject
matter jurisdiction.” Id. The Federal Tort Claims Act constitutes “a limited waiver of
the United States’s sovereign immunity.” Id. The FTCA provides that the United
States shall be liable, to the same extent as a private individual, “for injury or loss of
property, or personal injury or death caused by the negligent 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. § 1346(b)(1); see also 28 U.S.C. § 2674. Therefore,
compliance with the procedures prescribed by the FTCA is a prerequisite to obtaining
relief under this statute.
One of these prerequisites to suit under the FTCA is that a claim must first be
presented to the federal agency and be denied by the agency, or be deemed to be
denied. Section 2675(a) of Title 28, United States Code, provides in pertinent part:
An action shall not be instituted against the United States for money
damages for injury or loss of property or personal injury . . . unless the
claimant shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency in
writing and sent by certified or registered mail. The failure of the agency
to make final disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter, be deemed a final
denial of the claim for purposes of this section . . . .
Thus, prior to commencing an FTCA action against the United States in federal
court, however, a plaintiff must “first present[] the claim to the appropriate Federal

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agency” and receive a final denial “by the agency in writing and sent by certified or
registered mail.” 28 U.S.C. § 2675(a). Moreover, once an administrative claim is
addressed by the agency, a dissatisfied claimant must promptly file suit. The failure to
timely file a complaint will bar the plaintiff from proceeding in federal court. As the
FTCA notes:
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).
The FTCA imposes a twofold obligation of timeliness upon litigants. Thus,
under the FTCA there is a two year period in which a claim must be tendered to the
affected federal agency for its consideration. Wadhwa v. Nicholson, 367 F. App'x 322,
325 (3d Cir. 2010). Once the agency has acted upon the administrative claim, denying
the claim, the plaintiff then has six months in which to proceed to court. Id. Further,
Ҥ 2401(b)'s limitations periods must be read in the conjunctive. See Willis v. United
States, 719 F.2d 608, 610–613 (2d Cir.1983); Houston v. U.S. Postal Serv., 823 F.2d
896, 902 (5th Cir.1987); Ellison v. United States, 531 F.3d 359, 362–63 (6th Cir.2008);
Schuler v. United States, 628 F.2d 199, 201–02 (D.C.Cir.1980) (en banc) (per curiam).
. . . . [Therefore] both limitations periods under § 2401(b) must be satisfied in order

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for an FTCA complaint to be timely.” Seiss v. United States, 792 F. Supp. 2d 729, 732
(D.N.J. 2011).
While “the FTCA's statute of limitations is not jurisdictional, and thus in
appropriate circumstances the equitable tolling doctrine can apply in actions under it,”
Santos ex rel. Beato v. United States, 559 F.3d 189, 194-95 (3d Cir. 2009), equitable
tolling requests are judged by exacting legal standards. The touchstone for an equitable
tolling request is diligence. Thus, “ ‘a plaintiff will not receive the benefit of equitable
tolling unless []he exercised due diligence in pursuing and preserving h[is] claim’
because ‘[t]he principles of equitable tolling ... do not extend to “garden-variety claims
of excusable neglect.” ’ Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96, 111 S.Ct.
453). The ‘remedy of equitable tolling is extraordinary, and we will extend it only
sparingly.’ Hedges v. United States, 404 F.3d 744, 751 (3d Cir.2005). [In FTCA
actions] ‘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 (citing United States v. Kubrick, 444 U.S. 111, 117-19,
100 S.Ct. 352, 62 L.Ed.2d 259 (1979)).” Jones v. United States, 366 F. App'x 436, 439
(3d Cir. 2010). Consequently,‘ “[e]quitable tolling may apply to FTCA claims in three
instances: ‘(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
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his or her rights mistakenly in the wrong forum.’ Hedges, 404 F.3d at 751(internal
citations omitted).”Jones v. United States, 366 F. App'x 436, 439-40 (3d Cir. 2010).
Furthermore, where a plaintiff fails to show that his claims were subject to these
specific grounds for equitable tolling, tolling is unavailable and the statute of
limitations serves as a bar to further litigation. See e.g., Jones v. United States, 366 F.
App'x 436, 439-40 (3d Cir. 2010); Hedges v. United States, 404 F.3d 744, 746 (3d Cir.
2005).
Recognizing that there has be no intervening change in controlling case law, and
that these longstanding controlling legal standards continue to apply here and govern
Reyes’ case, we further find that Reyes has not satisfied any of the other grounds
provided for by law for a motion to reconsider by showing either: “the availability of
new evidence that was not available when the court granted the motion . . . ; or . . . the
need to correct a clear error of law or fact or to prevent manifest injustice.” Howard
Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir.
2010).
Judged against these legal guideposts, we continue to believe that Reyes’ claims
are barred by the FTCA’s statute of limitations. At the outset, given the FTCA’s clear
proscription that: “[a] tort claim against the United States shall be forever barred . . .
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

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presented,” 28 U.S.C. § 2401(b), it is clear that this action, which was filed 11 months
after Reyes received notice of the final denial of his administrative tort claim is
presumptively time-barred.
Reyes cannot save this time-barred claim through equitable tolling of this statute
of limitations, or by now belatedly claiming that he did not receive this notice. At the
outset, we continue to find that Reyes has failed to meet the first prerequisite for
equitable tolling, due diligence. “ ‘[A] plaintiff will not receive the benefit of equitable
tolling unless []he exercised due diligence in pursuing and preserving h[is] claim’
because ‘[t]he principles of equitable tolling ... do not extend to “garden-variety claims
of excusable neglect.” ’ Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96, 111 S.Ct.
453).” Jones v. United States, 366 F. App'x 436, 439 (3d Cir. 2010). Here, Reyes has
not shown due diligence in pursuing this claim. Rather, his approach towards the
important issue of the statute of limitations has been marked by a measure of studied
indifference to the statute of limitations, with the plaintiff previously characterizing
this important legal limitation as a mere “claims processing” rule.
Furthermore, none of the factual assertions Reyes now belatedly makes in
support of this motion to reconsider can fairly be characterized as “new evidence that
was not available when the court granted the motion.”

Howard Hess Dental

Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010). Quite the
contrary, all of these facts would have been known to Reyes at the time we last
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litigated this matter. Therefore, any attempt to aver new, or different, facts at this time
would be unavailing.
In addition, we note that any tardy due diligence claim now advanced by Reyes
fails on another, entirely independent ground. Even if we accepted Reyes’ belated
assertion that he did not receive notice of the denial of his administrative claim in May
2012, we find that he failed to act with due diligence under the FTCA. By its terms, the
FTCA provides that: “The failure of the agency to make final disposition of a claim
within six months after it is filed shall, at the option of the claimant any time thereafter,
be deemed a final denial of the claim for purposes of this section . . . .” 28 U.S.C. §
2675(a). In this case it is undisputed that Reyes submitted an administrative tort claim
to the Bureau of Prisons Regional Counsel’s office on November 9, 2011. (Doc. 28,
Declaration of Kimberly Sutton (Ex. A) ¶ 3; SF-95 (Attach. 1)). Therefore, even if we
accept Reyes’ claim that he was unaware of the denial of that claim in May 2012, from
Reyes’ perspective by May 2012 the agency’s failure to act by statute should have been
deemed a denial of the claim triggering an obligation for action on his part. Thus,
Reyes’ subsequent complete inaction for nearly a year following May 2012 simply
does not satisfy the due diligence standard demanded for equitable tolling claims on
any set of facts posited by the plaintiff.

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Further, we continue to believe that Reyes has not shown that this case falls
within any of the three narrow categories where equitable tolling is appropriate. As we
have noted, “[e]quitable tolling may apply to FTCA claims in three instances: ‘(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.’ Hedges, 404 F.3d at 751(internal citations
omitted).”Jones v. United States, 366 F. App'x 436, 439-40 (3d Cir. 2010).
Here, Reyes does not contend that he erroneously filed this action in a timely
fashion in the wrong forum. Nor can Reyes credibly claim that he was actively misled
by the defendants regarding the need to timely file this action. Quite the contrary, the
defendant provided Reyes with written notice of his obligation to file this action within
six months when it denied his administrative tort claim in May of 2012.
Finally, while Reyes continues to suggest that his prison transfer in some way
impeded him in filing this action, we must note that Reyes’ transfer occurred in
January 2012, long before his filing deadline in this litigation. In addition, it is clear
that the notices regarding the disposition of Reyes’ administrative tort claim, and the
instructions that he needed to act within six months of the denial of that claim, were
sent to Reyes at his current place of confinement, FCI Schuylkill. Therefore, Reyes’
transfer did not impede his receipt of this notice regarding his administrative tort claim
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and his duty to timely file his complaint. Further, during this same time period from
May through November 2012, dozens of other inmate-litigants were able to timely file
civil complaints arising out of this food poisoning episode, a factor which undermines
Reyes’ assertion that unusual, extraordinary obstacles preventing inmate filings. On
these facts, we continue to conclude, as other courts have concluded in the past when
confronted with similar equitable tolling claims, that this prisoner’s transfer did not
constitute a circumstance where the plaintiff in some extraordinary way was prevented
from asserting his rights, warranting equitable tolling of the statute of limitations. See,
e.g. Cruz v. United States, 522 F. App'x 635, 638 (11th Cir. 2013); Galindo v. U.S.
Dep't of Justice, 153 F. App'x 333, 334 (5th Cir. 2005). Therefore, equitable tolling of
the statute of limitations remains inappropriate here.
III.

Conclusion

Having found that Reyes has not shown grounds to reconsider our prior ruling,
and having found: (1) that this limitations period prescribed by the Federal Tort Claims
Act applies here, and bars this claim; and (2) further concluding that Reyes still has not
presented legal or factual grounds justifying equitable tolling of the statute of
limitations, this motion to reconsider will be denied and this action will remain
dismissed as time-barred.

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An appropriate order will follow.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: August 22, 2014.

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