Roseboro v. United States Government et al

Filing 42

MEMORANDUM OPINION - For the foregoing reasons, defendant Brown's Motion to Dismiss will be granted, and he will be dismissed from this action with prejudice. Plaintiffs FTCA claim will remain before the Court, and the United States will be reinstated as a defendant. Signed by District Judge Liam O'Grady on 02/12/2015. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Yousef A. Roseboro,
Plaintiff',

I:13cv513 (LO/TRJ)
Gerard Brown,
Defendant.
MEMORANDUM OPINION

Yousef A. Roseboro, a former federal inmate proceeding eeo se, has filed an action
pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 and Bivens v.

Six Unknown Named Agents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971). On
October 23, 2013, this Court construed plaintiffs claim as arising solely pursuant to Bivens.
added Gerard Brown as an individual-capacity defendant, and directed the defendant to address

whether plaintiffs claim is barred by the applicable statute of limitations.

Dkt. 11.

Defendant Brown filed a Motion to Dismiss, arguing that plaintiffs Bivens claim is time-barred.

Dkt. 34. Plaintiff filed a response, and defendant filed a reply to this response. Dkt. 39, 40. For
the reasons that follow, defendant Brown's Motion to Dismiss will be granted.
However, in its October 23,2013 Order, the Court dismissed the United States as a

defendant, but did not explicitly dismiss plaintiffs FTCAclaim. Becauseit appears that plaintiff
has properly stated an FTCA claim, the United States will be reinstated as a defendant, and

plaintiffwill be directed to provide additional information surrounding the filing of his FTCA
administrative claims.

1. Background

On July 29,2010, plaintiff, then housed at FCC Petersburg ("Petersburg") was struck by
an institutional mail cart being driving by defendant Brown, a Petersburg employee. Sw Compl.
[Dkt. 1], at "Statement of Claim" III. Plaintiff states that, at the time of the collision. Brown was
"recklessly" driving the cart, and "turned a comer at a high rate of speed on the sidewalk

between the Carolina and Virginia housing units towards the backs of unsuspecting prisoners"
walking between units. Am. Compl. [Dkt. 7] ^ 6. Brown allegedly did not sound the horn or
otherwise alert the prisoners to his presence. Id The cart then rolled over plaintiffs right foot,
striking his right shoulder, hip, and lower back. Id
Plaintiff states that he "was in such pain he could not move," but that Brown did nothing

to assist him. Id ^ 7- Brown stopped the cart approximately fifty feet from plaintiff, stepped out
to ask "if [plaintifl] was o.k., but... [then] hopped back into his cart and sped away." Id.

Brown allegedlydid not attempt to assess plaintiff's injuries, did not offer to bring plaintiff to the
medical wing, and did not alert medical staff to plaintiffs injuries. Id As a result of this
incident, plaintiff "suffered permanent damageto [his] shoulder, hip, and lower back." Compl.,
at "Statement of Claim" III. These injuries necessitated surgery to repair a torn rotator cuff in

March, 2011. See Defendant's Memorandum in Support of Motion to Dismiss ("Def.'s Mem.")
[Dkt. 35], Ex. A [Dkt. 37], at unnumbered page 1.
Plaintiff filed a request for an administrative remedy on August 13,2010. See id. Ex. A,

at unnumbered page 7. After his request was denied by the Petersburg warden, he filed all

required appeals. ^

id at unnumbered pages 1-6. Plaintiffs final administrative appeal was

denied onNovember 4, 2011. Plaintiff also filed administrative claims pursuant to theFTCA,
requesting $1,000,000 in damages. The Bureau of Prisons' Mid-Atlantic Regional Director

denied plaintiffs FTCA administrative claims on November 27, 2012. See Am. Compl, Ex. B,
C. Plaintiff filed his lawsuit on March 25,2013, and it was docketed in this Court on April 25,
2013.

II. Motion to Dismiss

In its initial screening of plaintiffs complaint, the Court noted that plaintiffs claim
accrued three years before the date on which he filed his lawsuit.

Order, June 10, 2013 [Dkt.

3]. There is no federal statute of limitations for Bivens claims, so courts look to the state

limitations period which governs personal injury actions. See Wilson v. Garcia. 471 U.S. 261,
280 (19851 overruled on other grounds bv Jones v. R.R. Dormellev Sl Sons Co.. 541 U.S. 369

(2004); Blanck v. McKeen. 707 F.2d 817, 819 (4th Cir. 1983) (per curiam). Virginia has a twoyear statute of limitations for personal injury claims under Virginia Code. § 8.01-243(A), which

is the applicable statute of limitations in this action. See Shelton v. Aneelone. 148 F. Supp. 2d
670, 677(W.D. Va. 2001), affd. 49 F. App'x. 451 (4thCir. Oct. 30, 2002) (unpublished

opinion). Plaintiff argued thatthestatute of limitations should have been tolled during the time
that he exhausted his administrative remedies pursuant to the Prison Litigation ReformAct
"(PLRA"), 28 U.S.C. § 1997(e), as well as the time during which he exhausted his FTCA
administrative remedies. See, e.g.. Am. Compl. ^ 3.

Although federal courts are "obligated not onlyto apply the analogous state statute of

limitations to federal constitutional claims brought under § 1983," but also to apply the State's
rule for tolling that statute of limitations," Scoeeins v. Douglas. 760 F.2d 535, 537 (4th Cir.
1985) (citing Bd. of Regents of Univ. of New York v. Tomanio. 446 U.S. 478,484-86 (1980)),

the Fourth Circuit has not addressed whether the statute of limitations should be equitably tolled

' As Bivens actions also raise federal constitutional claims, the analysis of the application of
the statute of limitations in Bivens actions is identical to theanalysis in § 1983 actions.

during plaintiffs exhaustion of administrative remedies. Accordingly, the Court directed the
defendant to address this limited issue in his response to plaintiffs claims. As defendant Brown

is properly before the Court in his individual capacity only pursuant to plaintiffs Bivens claim,
he filed a Motion to Dismiss on the basis that plaintiffs Bivens claim is time-barred.
Defendant's Motion will be granted.
A. Standard of Review

When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
court must presume that all factual allegations in the complaint are true, and must draw all
reasonable inferences in the plaintiffs favor. See, e.g.. Burbach Broad. Co. of Del, v. Elkins

Radio Corp.. 278 F.3d 401, 406 (4th Cir. 2002). Therefore, a court may not dismiss a complaint
if the plaintiff pleads any plausible set of facts that would entitle him to relief. See, e.g.. Conlev

v. Gibson. 355 U.S. 41,45-46 (1957). A claim has plausibility if the plaintiff alleges sufficient

facts by which a court could reasonably infer the defendant's liability. Ashcroft v. Iqbal. 556
U.S. 662, 678 (2009 (citing Bell Atl. v. Twomblv. 550 U.S. 544, 556 (2007)). To meet this
standard, however, the plaintiff must do more than simply allege "threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements ...." Id (citing
Twomblv. 550 U.S. at 555)). Thus, the plaintiff must allege facts that show more than a "mere
possibility of misconduct" by the defendant. Id at 679.

While courts must hold complaints filed by pro se prisoners to less stringent standards

than formal pleadings drafted by lawyers

" Haines v. Kemer. 404 U.S. 519, 520-21 (1972),

pro se plaintiffs must meet the plausibility standard to withstand a Rule 12(b)(6) motion.
Accordingly, plaintiff, although he is a gro se prisoner, must provide some "factual
enhancement" to his allegations in order to state a claim for relief. Twomblv. 550 U.S. at 557

(internal quotation marks omitted).

B. Plaintiffs Bivens Claim is Time-Barred

It is undisputed that plaintiffs complaint was filed more than two years after his cause of
action accrued. While state law governs the application of the statute of limitations in Bivens
actions, federal law determines when a cause of action "accrues." Miller v. United States. 932

F.2d 301, 303 (4th Cir. 1991). In general, a cause of action accrues when plaintiff is "in
possession of the critical facts that has been hurt and who inflicted the injury." United States v.

Kubrick. 444 U.S. 111, 122 (1979). Because plaintiff was injured on July 29, 2010, and knew
that he was injured due to the actions of defendant Brown, his cause of action accrued on that

day. However, plaintiff did not file this lawsuit until March 25,2013. Plaintiff argues, however,

that his complaint is not time-barred, becausethe statute of limitations was tolled during the time
he spent exhausting his administrative remedies pursuant to the PLRA. See, e.g.. Plaintiffs
Opposition to Defendant's Motion to Dismiss ("PL's 0pp.") [Dkt. 39], at 2-3.

VirginiaCode. § 8.01-229 provides for tolling of all statute of limitations during the time
a plaintiff is under a disability, for a period of time after the death of a party, during the
pendency of a criminal prosecution against either party, and other circumstances not relevant to

this case. Sw Va. Code § 8.01-229(A)-(K). Thus, the only possible tolling of the limitations
period applicable to plaintiffs case is equitable tolling. As there is no federal statute of
limitations applicable to Bivensactions, the question of whetherthe statute of limitations should
be equitably tolled is also govemed by state law. See, e.g.. Wade v. Danek Med.. Inc.. 182 F.3d

281, 289 (4th Cir. 1999). The Fourth Circuit has yet to answerthe question of whether an inmate

is entitled to equitable tolling of the statute of limitations in a Bivens action while exhausting
PLRA remedies.

Virginia courts, however, have generally taken a restrictive view of equitable tolling.
The Virginia Supreme Court has held that "statutes of limitations are strictly enforced and

exceptions thereto are narrowly construed. Consequently, a statute should be applied unless the
General Assembly clearly creates an exception, and any doubt must be resolved in favor of the
enforcement of the statute." Arrineton v. Peoples Sec. Life Ins. Co.. 250 Va. 52, 55,459 S.E.2d

289,2991(1995). The court has only refused to apply the statute of limitations when "the

positive and plain requirements of an equitable estoppel preclude" its application. Bovkins
Narrow Fabrics Corp. v. Weldon Roofing

Sheet Metal. Inc.. 221 Va. 81, 85, 266 S.E.2d 887,

889 (1980) (Quoting Brunswick Corp. v. Perklnson. 153 Va. 603,608, 151 S.E. 138,140 (1930)).
Thus, absent compelling circumstances, the Virginia Supreme Court has strictly applied all
relevant statutes of limitations. See, e.g.. Casev v. Merck & Co.. Inc.. 283 Va. 411,416, 722

S.E.2d 842, 845 (2012) ("[TJhere is no authority in Virginia jurisprudence for the equitable
tolling of a statute of limitations based upon the pendency of a putative class action in another
jurisdiction.").

Thus, it is clearthat, under Virginia law, plaintiffis not entitled to automatic equitable
tolling of the statute of limitations while he exhausted his remedies under the PLRA. In addition,
the principles of equitableestoppel that would warrant equitable tolling of the statute of

limitations do not apply to this case. To invoke equitable estoppel - and thus be entitled to

equitable tolling - under Virginia law a party must prove, "by clear, precise, and unequivocal
evidence" that (1) a party knowingly and falsely concealed a material fact, with the intentionthat

the opposing party would rely on this representation; (2) the party invoking equitable estoppel
did notknow thetrue nature of tlie material fact; (3)the party invoke estoppel relied on the
misrepresentation; and (4)the party invoking estoppel "was misled to his injury." Bovkins

Narrow Fabrics Corp.. 221 Va. at 86, 266 S.E.2d at 890 (internal citations omitted). Thus,

plaintiff must show that the defendant somehow prevented plaintiff from filing suit within the
statutory time period. Id at 87, 890. Plaintiffcannot meet the requirements of equitable
estoppel.

Specifically, plaintiff has not presented any evidence of misrepresentation or misconduct
by the defendant, or any attempt to impede plaintiffs lawsuit. See Waener v. Bamette. No
7:12cv441,2014 WL 695388, at *4 (W.D. Va. Feb. 24, 2014) (citing Bovkins Narrow Fabrics
Corp.. 221 Va. at 85,255 S.E.2d at 890) (finding, on similar facts, that plaintiff had not satisfied

the requirements for equitable tolling). Plaintiff asserts, without any support, that, although the
final denial of this administrative appeal was dated on November 4, 2011, this date was "falsely

stamped." PL's 0pp., 4. He also states that he did not receive notice of this denial until May of
2012, after he had been transferred to another institution. He thus asserts that he "is entitled to

equitable tolling as a resuh of the BOP dehberate delay [sic]." Id As there is no evidence to
support plaintiffs contention that the Bureau of Prisons actually delayed in responding to

plaintiffs claims, his contention is without merit.^
Plaintiff also states that this Court should follow the holdings of the Fifth and Seventh
Circuits, which have allowed the statute of limitations to be tolled in Bivens actions during the
time in which a plaintiff exhausts his remedies under the PLRA. Id at 4-5. Both the Fifth and

the Seventh Circuits, however, have allowed for statutory - rather than equitable - tolling of the

Even taking plaintiffs contention as true, however, plaintiff still had two months from the
date of receiving this final denial, in May 2012, to timely file a lawsuit. He waited an additional
ten months to do so. As "equity aids the vigilant and not those who slumber on their rights,"
Kansas v. Colorado. 514 U.S. 673, 687 (1995), it would not be appropriate to equitably toll the

statute of limitations even if plaintiff received his final denial in May of 2012. See Luian v.
Teters. No. 7:06cv748, 2007 WL 4376149, at *5 (W.D. Va. Dec. 14, 2007) (finding that no
equitable tolling was appropriate for an inmate who delayed in filing his Bivens action after
receiving final denial of his administrative remedies).

statute of limitations when the requisite state statutes clearly allowed for such tolling. See, e.g..
Johnson v. Rivera. 272 F.3d 519, 521-22 (7th Cir. 2001) (applying Illinois law, which mandates

tolling "if a 'statutory prohibition exists that prevents a plaintiff's cause of action"); Harris v.
Heemann. 198 F.3d 153, 157-58 (5th Cir. 1999) (applying Louisiana law, which requires tolling
in any case in which a party is "legally unable to act" due to, among other factors,
"administrative restraints"). The Second and Ninth Circuits have also allowed for the tolling of
the statute of limitations when necessary to protect "a prisoner's ability to file his complaint
within the limitations period." Brown v. Vaioff. 422 F.3d 926, 942 (9th Cir. 2005); see also
Gonzalez v. Hastv. 651 F.3d 318, 323-24 (2d Cir. 2011) (internal quotations omitted). Even if

these cases were binding on this Court, however, plaintiff has not provided any facts to show that
the defendant's actions left him in danger of missing the requisite filing period, and he has
therefore failed to show that he would be entitled to equitable tolling.
Plaintiff also states that he was "not permitted to file his complaint until he had fiilly
exhausted his administrative remedies," which took until November 29,2012, when the Bureau

of Prisons denied his final FTCA claim. ^

PL's 0pp., at 5. While plaintiff's argument is a

correct statement of the law, the processing of his FTCA claims had no impact on the timeliness

of his Bivensaction. There mere fact that plaintiffhad to comply with two different exhaustion
and timeliness requirements does not warrant equitable tolling of the statute of limitations in his
Bivens claim. As explained infra, plaintiff timely filed his FTCA claim. However, the fact that

his FTCA claim was timely filed does not merit equitable tolling of the Bivens statute of
limitations.

Because plaintiff'sclaim against defendant Brown was filed beyond the two-year statute
of limitations, plaintiff's Bivens claim must be dismissed.

HI. FTCA Claim

It is clear, however, that plaintiffs FTCA claim is properly before the Coiul. The FTCA
confers exclusive jurisdiction on the district courts to hear civil actions:
[AJgainst the United States, for money damages ... 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, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the place where the act or
omission occurred.

28 U.S.C. § 1346(b)(1). To be actionable under § 1346(b), a claim must allege ... that the
United States 'would be liable to the claimant' as 'a private person' 'in accordance with the law

of the place where the act or omission occurred.'" FDIC v Mever. 510 U.S. 471, 477 (1994)
(quoting § 1346(b)(1)). Because "law of the place' means law of the state," state law provides
the source of substantive liability under the FTCA, as it does under Bivens. Id. at 478; see also

Richards v. United States. 369 U.S. 1, 6 (1962).

Before a plaintiffcan bring an FTCA claim to federal court, he must have presented his
claim to the appropriate federal agency, and the agency must have denied the claim in writing.
28 U.S.C. § 2675(a). A tort claim is "forever barred" unless it is presented in writing to the

appropriate federal agency within two years afteraccrual, or unless the action is begun within six
months of the final denial of the claim by the agency. 28 U.S.C. § 2401(b). To properly

"present" a claim to a federal agency, the plaintiff must provide a written statement "sufficiently
describing the injury to enable the agency to begin its own investigation," GAF Corp. v. United

States. 818 F.2d 901, 905 (D.C. Cir. 1987), as well as provide "a claim for money damages in a
sum certain for injury to or loss of property, personal injury, or death," 28 C.F.R. § 14.2(a); see

also Ahmed v. United States. 30 F.3d 514. 516-17 f4th Cir. 1994). Exhaustion of remedies is a
jurisdictional requirement, anda court may not entertain an FTCA suit based on an unexhausted

claim. See McNeil v. United States. 508 U.S. 106, 113 (1993); Henderson v. United States. 785
F.2d 121,123 (4th Cir. 1986).

Although plaintiff has not included his FTCA administrative grievances, it is clear from
his amended complaint and the attached documents that he submitted a written complaint to the
Bureau of Prisons, requesting a specified sum of money. On October 31, 2012, plaintiff received
a letter from the Bureau of Prisons" Mid-Atlantic Regional Counsel, informing him that his
administrative claim, filed pursuant to the FTCA, in which he "allege[d] government liability in
the amount of $1,000,000 for alleged personal injury," had been denied. Am. Compl., Ex. B.
On November 27,2012, plaintiff received a similar letter stating that the Bureau of Prisons had
reconsidered his claims, but again found them to be meritless. This letter informed plaintiff that
he could file suit in United States District Court within six months. Id Ex. C. Therefore, it
appears from the record that plaintiff has exhausted his FTCA remedies. As it is also clear that
plaintiff filed the instant case within six months of the November 27,2012 denial ofhis claim,

his FTCA claim was timely filed.

In its October 23, 2013 Order, the Court dismissed "United States govemmenf as a
defendant in this action. However, the Court never explicitly dismissed plaintiffs FTCA claim.
See Order, Oct. 23, 2013 [Dkt. 11]. As it appears that plaintiffs FTCA claim is properly before
the Court, the Court will allow this claim to proceed. Thus, the United States must be reinstated

as a defendant. Before the Court can effectuate serviceon the United States, however, plaintiff
is directed to particularize and amend his complaint. Specifically, the Court is unableto

determine the specific facts upon which plaintifi* bases his FTCA claim. Accordingly, plaintiff is
directed to particularize and amend his FTCA complaint by providing the basic facts underlying
his complaint. Plaintiff is also requested to provide copiesof his FTCA administrative remedies

to this Court, if available. He is also directed to complete and submit a new application to
proceed In forma

ris. as it appears that he has been released from incarceration.
IV. CoDclusioD

For the foregoing reasons, defendant Brown's Motion to Dismiss will be granted, and he
will be dismissed from this action with prejudice. Plaintiffs FTCA claim will remain before the
Court, and the United States will be reinstated as a defendant.

Entered this

day of.

^fio

2015.

Alexandria, Virginia

Liam O'Grady

\

United States District Jutme