Fletcher v. U.S. Justice Dept. et al

Filing 29

REPORT AND RECOMMENDATION: The Court respectfully recommends that the motion of the United States of America to dismiss the action (Docket Entry No. 19) be GRANTED and this action be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Barbara D. Holmes on 4/25/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DAVID FLETCHER
v.
UNITED STATES OF AMERICA

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NO. 3:15-1131

TO: Honorable Waverly D. Crenshaw, Jr., District Judge

REPORT AND RECOMMENDATION
By Order entered November 4, 2015 (Docket Entry No. 3), the Court referred this action to
the Magistrate Judge, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B), Rule 72(b) of the Federal
Rules of Civil Procedure, and the Local Rules of Court, to dispose or recommend disposition of any
pretrial motions, and to conduct further proceedings, if necessary.
Presently pending before the Court is the motion to dismiss filed by the United States of
America. See Docket Entry No. 19. Also before the Court are Plaintiff’s filings in opposition to the
motion to dismiss. See Docket Entry Nos. 23 and 26. Set out below is the Court’s recommendation
for disposition of the motion.

I. BACKGROUND
David Fletcher (“Plaintiff”) is a resident of Davidson County, Tennessee. The current
lawsuit is the second lawsuit that he has filed pro se and in forma pauperis concerning his allegation
that Jim Grant (“Grant”), an agent of the United States Marshals Service (“USMS”), improperly
caused a car he owned to be towed away from his house. Plaintiff alleges that the car has never been
returned and he has never been compensated for the loss of the car.
Plaintiff’s first lawsuit, Fletcher v. Grant, et al., 3:14-2162, was filed on November 11, 2014,
against Grant and Kevin Koback (“Koback”), who is another USMS agent. Plaintiff alleged:

Several years ago while under investigation . . . . Mr. Grant came to my home at the
time at 415 Williams Ave. to serve arrest warrant. I was not home and for some
reason he towed a parked car of mine (Infinity) that had nothing to do with arrest.
I spoke by phone to Mr. Koback who replyed (sic) talk to Jim Grant. Case had
ongoing investigation and has now concluded. I would like possession of vehicle
returned to me.
See Complaint (Docket Entry No. 1) in Fletcher v. Grant, et al. By Order entered June 12, 2015,
the Court construed Plaintiff’s filing as a civil complaint under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671 et seq., and dismissed the case, upon the motion of the United States
of America (“United States”), for lack of subject matter jurisdiction because Plaintiff had not shown
that he had first presented an administrative claim to the United States Marshals Service for his
allegedly seized car. See Docket Entry No. 27 in Fletcher v. Grant, et al. Plaintiff’s appeal to the
Sixth Circuit Court of Appeals from that order was dismissed for want of prosecution. See Docket
Entry No. 46 in Fletcher v. Grant, et al.
Plaintiff then filed an administrative claim with the USMS on July 6, 2015, seeking
$20,000.00 in damages based upon his allegation that the car was taken and not returned. See
Docket Entry No. 21-1. On September 25, 2015, the USMS, United States Department of Justice
denied his claim, stating that the claim was filed more than two years after the claim had accrued.
See Complaint (Docket Entry No. 1) at 4.
Plaintiff thereafter filed the instant lawsuit on October 28, 2015, against the United States
Department of Justice, Grant, and Koback seeking $20,000.00 as reimbursement for the taking of
his car. He alleges:
U.S. Marshal after admitting to taking my property has tried to hide behind
Government shield 28 U.S.C. § 2401B although case against Plaintiff was still open
. . . after towing my car from my yard Mr. Grant did indeed target me, for personal
reason he had. I made supervisor Kevin Koback aware of actions and he was already
aware of the wrongdoing on behalf of the U.S. Justice Dept. and told me to deal with
Jim Grant . . . . After having to suffer without my vehicle over 5 yrs that federal case
was open, I have been given the run-around regarding reimbursement. That Judge
Nixon no longer allow this to be disregarded and payment is forced and that it is no
longer pushed aside. I have waited patiently and $20,000.00 is a fair payment for the
government workers to re-imburse (sic). Considering their admission of negligence,
however, to hide behind a time statute is unfair to poor people.
See Complaint (Docket Entry No. 1).
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By Order entered December 21, 2016, the United States was substituted as the Defendant.
See Docket Entry No. 12. Defendant filed the pending motion to dismiss in lieu of an answer.
Defendant moves to dismiss the action pursuant to 28 U.S.C. § 2401(b), arguing that Plaintiff failed
to present his administrative claim within the two-year statute of limitation period provided for under
the FTCA. Defendant argues that Plaintiff’s claim accrued no later than April 18, 2006, but Plaintiff
did not file his administrative claim until July 9, 2015, well beyond the applicable two year period.
See Memorandum in Support (Docket Entry No. 20) at 5-6. Defendant further contends that no basis
exists to equitably toll the FTCA two year statute of limitations so as to render Plaintiff’s claim
timely. Id. at 6-7. Defendant supports its motion with the Declaration of Gerald Auerbach, General
Counsel of the USMS. See Docket Entry No. 21.
In response, Plaintiff argues that: 1) he had no knowledge of any deadlines to pursue his
claim but, nonetheless, pursued his claim through his federal lawsuits as soon as the criminal
proceeding against him was resolved; 2) he was instructed by defense counsel in the criminal case
to not pursue his claim while the criminal case was ongoing; and 3) the actions of the federal agents
constitute crimes and that they should not be protected from liability for the theft of his property.
See Docket Entry Nos. 23 and 26.

II. STANDARD OF REVIEW
For purposes of a motion to dismiss, the Court must take all of the factual allegations in the
complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
When there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief. Id. at 1950. A legal
conclusion couched as a factual allegation need not be accepted as true on a motion to dismiss, nor
are recitations of the elements of a cause of action sufficient. Fritz v. Charter Township of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).

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III. ANALYSIS
Plaintiff alleges that agents of the USMS caused his car to be towed away from his residence
without a lawful basis for doing so, that he has never been informed of the location of the car, and
that he has never received compensation for loss of the car or had the car returned to him.1 For the
purposes of the instant motion, the Court must assume these allegations to be true.
The date of the alleged taking of the car, however, is not set out in the Complaint and is not
obvious from the record in this case or the record in his prior lawsuit. In his Complaint, Plaintiff
alleges that he was without the car for “over 5 yrs that federal case was open.” See Complaint at 3.
The complaint in his prior lawsuit states that the taking occurred “several years ago while [he was]
under investigation.” See Docket Entry No. 1 in Fletcher v. Grant, et al. In the Standard Form 95
Plaintiff filed for his administrative claim, he states that he was “not sure exactly” when the taking
occurred but that it occurred “about 2008.” See Docket Entry No. 21-1. The denial letter for the
claim states that the claim “accrued in April 2006,” see Complaint at 4, although it is unclear from
the record before the Court why this date was used. Regardless, from Plaintiff’s own allegations and
from the most reasonable interpretation of the available relevant public filings, it appears that the
alleged taking of the car occurred in 2008 or, at the latest, in 2009.2
Plaintiff’s lawsuit seeks only monetary compensation from the United States. However, the
“United States, as sovereign, is immune from suit save as it consents to be sued.” United States v.
Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The FTCA, which provides that
the “United States shall be liable, respecting the provisions of this title relating to tort claims, in the
same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C.

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Plaintiff does not allege that the car was seized pursuant to any legal process or for any lawful
purpose, such as possible forfeiture or as an item of evidence.
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Although Plaintiff’s arrest and the subsequent criminal proceedings are clearly significant
events, Plaintiff only vaguely refers to these events in his Complaint. However, public records show
that Plaintiff was arrested on October 15, 2009, on a federal indictment and that the criminal
proceedings remained active until April 2014. See United States v. David A. Fletcher, 3:09-cr00243. These records contain no reference to Plaintiff’s car being seized.
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§ 2674, acts as a waiver of the federal government’s sovereign immunity in limited contexts and “is
the exclusive remedy for suits against the United States or its agencies sounding in tort.” Himes v.
United States, 645 F.3d 771, 776 (6th Cir. 2011) (citing 28 U.S.C. § 2679(a)); Young v. United
States, 71 F.3d 1238, 1241 (6th Cir. 1995). This exclusive remedy further extends to the negligent
or wrongful acts or omissions of any federal employee while acting within the scope of his or her
employment. 28 U.S.C. § 2679(b)(1). Given the nature of Plaintiff’s allegations and the relief
sought, his lawsuit falls within the scope of the FTCA.
The FTCA’s waiver of the United States’ immunity from suit for torts committed by federal
employees is limited and is subject to several conditions. See Ellison v. United States, 531 F.3d 359,
361 (6th Cir. 2008). One of these conditions is that the claimant must present his claim in writing
to the appropriate agency within two years of the date the claim accrued. 28 U.S.C. § 2401(b).
United States v. Kwai Fun Wong, U.S. , 135 S. Ct. 1625, 1629, 191 L. Ed. 2d 533 (2015); United
States v. Kubrick, 444 U.S. 111, 113, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979); Blakely v. United
States, 276 F.3d 853, 865 (6th Cir. 2002). Although Plaintiff contends that Defendant is “hiding
behind” Section 2401(b), see Complaint at 1 and Docket Entry No. 23 at 1, raising the statue of
limitations set out in Section 2401(b) is an acceptable and permissible defense to a FTCA claim,
even if it bars what would otherwise be a valid claim. Kubrick, 444 U.S. at 117 and 125.
The general rule is that a tort claim under the FTCA accrues at the time of a plaintiff's injury.
Id. at 120; Hertz v. United States, 560 F.3d 616, 618 (6th Cir. 2009). When a plaintiff knows, or in
the exercise of reasonable diligence should know, of the fact that he has been injured and who has
caused his injury, his claim has accrued, regardless of whether he knows the legal basis for such a
claim. Hertz, 560 F.3d at 618-19.
Clearly, Plaintiff’s own allegations show that he was aware that his car had been taken and
by whom by no later than 2009, well beyond 2 years prior to the filing of his administrative claim
on July 6, 2015. Accordingly, the Court finds that Plaintiff’s claim accrued more than two years

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prior to the filing of his administrative claim and is presumptively barred by the statute of limitations
in Section 2401(b).
Plaintiff points to three circumstances which he contends caused him to delay pursuing a
claim for relief: 1) he had no knowledge of the FTCA statute of limitations or that he had a specific
time frame in which to pursue his claim; 2) there were ongoing criminal proceedings against him
from 2009 to 2014; and 3) he was told by his criminal defense counsel to not pursue a claim for the
car while the criminal proceedings were ongoing. See Docket Entry No. 23. Plaintiff’s arguments,
although not stated as such, are essentially arguments that his claim should be viewed as timely
because of equitable tolling or equitable estoppel. In Kwai Fun Wong, the United States Supreme
Court explicitly held that the Section 2401(b) statute of limitations is subject to equitable tolling.
125 S.Ct. at 1633. Application of equitable estoppel was not at issue in Kwai Fun Wong, but the
justification set out in Kwai Fun Wong for why the Section 2401(b) statute of limitations is subject
to equitable tolling would likewise apply to equitable estoppel.
Equitable estoppel is relevant if the defendant has taken active steps to prevent plaintiff from
pursuing a claim in a timely manner and should, therefore, be estopped from arguing that the statute
of limitations bars the claim. See E.E.O.C. v. Kentucky State Police Dept., 80 F.3d 1086, 1095 (6th
Cir. 1996). For equitable estoppel to apply, a plaintiff must demonstrate that the defendant engaged
in “egregious wrongdoing” or “improper conduct” upon which the plaintiff reasonably relied and
which prevented him from suing in time. See Bridgeport Music, Inc. v. Diamond Time, Ltd., 371
F.3d 883, 891 (6th Cir. 2004). Equitable tolling, on the other hand, applies when a party has pursued
his rights diligently but some extraordinary circumstance prevented him from meeting a deadline.
Kwai Fun Wong, 125 S.Ct. at 1631; Lozano v. Montoya Alvarez, 572 U.S. 1, 134 S.Ct. 1224, 123132, 188 L.Ed.2d 200 (2014). Both doctrines are to be applied sparingly, Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and the party seeking to gain the
benefit of the doctrines has the burden of showing his entitlement to their application. Hogan v.

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U.S., 42 Fed.App'x 717, 722 (6th Cir. July 31, 2002); Fisher v. Peters, 249 F.3d 433, 444 (6th Cir.
2001).
Although the scenario presented by Plaintiff certainly presents an unusual case, the Court
finds that none of the circumstances set out by Plaintiff justify the application of equitable estoppel
or equitable tolling. First, Plaintiff’s ignorance of the filing deadline and his rights under the FTCA
is not sufficient, by itself, to support equitable tolling. Graham-Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000). Second, Plaintiff has shown no authority
for tolling a FTCA claim because of on-going criminal proceedings. Further, although the actions
of counsel can justify applying equitable tolling in egregious or extraordinary circumstances,
see Holland v. Florida, 560 U.S. 631, 651-52, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the conduct
of counsel must be more than merely negligent or misguided in order to constitute an extraordinary
circumstance. The Court does not view the allegations made by Plaintiff as sufficiently compelling
to rise to the level of an extraordinary circumstance. Finally, the actions of Plaintiff’s defense
counsel cannot be attributed to Defendant for the purposes of equitable estoppel, and there is no
evidence of improper or fraudulent conduct on the part of Defendant or the USMS agents that either
prevented or discouraged Plaintiff from pursuing a claim or concealed from him facts necessary to
pursue his claim. See Diminiie v. United States, 728 F.2d 301, 305 (6th Cir. 1984) (to defer accrual
of cause of action under FTCA, it must be shown that the United States itself played a wrongful role
in concealing information from Plaintiff that prevented him from pursuing his claim).

RECOMMENDATION
For the reasons set out above, the Court respectfully recommends that the motion of the
United States of America to dismiss the action (Docket Entry No. 19) be GRANTED and this action
be DISMISSED WITH PREJUDICE.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this notice and must state with particularity the specific
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portions of this Report and Recommendation to which objection is made. Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District Court's
Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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