Parrish v. United States of America

Filing 85

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 77 , OVERRULING PLAINTIFFS OBJECTIONS DKT. NO. 81 , AND GRANTING IN PART DEFENDANTS MOTION TO DISMISS DKT. NO. 65 . The Court GRANTS in PART the defendants motion to dismiss Dkt.No. 65 and DISMISSES as time-barred Parrishs claims as stated in Administrative Tort Claim TRT-MXR-2016-06710;DENIES in PART the defendants motion to dismiss Dkt. No. 65 and DIRECTS the defendant to address Parrishs claims as stated in Admi nistrative Tort Claim TRT-MXR-06283 on the merits. Further, the Court RECOMMITS this case to the magistrate judge for further proceedings consistent with this Memorandum Opinion and Order. Signed by Senior Judge Irene M. Keeley on 1/16/2019. (copy counsel of record, copy pro se plaintiff via certified mail)(jmm) (Additional attachment(s) added on 1/16/2019: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONTE PARRISH,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:17CV70
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
Pending before the Court is the Report and Recommendation of
United States Magistrate Judge Michael J. Aloi recommending partial
dismissal of the amended complaint filed by the pro se plaintiff,
Donte Parrish (“Parrish”). Also pending are Parrish’s objections to
the

magistrate

judge’s

recommendations.

For

the

reasons

that

follow, the Court OVERRULES Parrish’s objections (Dkt. No. 81),
ADOPTS the Report and Recommendation (Dkt. No. 77), and GRANTS in
PART and DENIES in PART the defendant’s motion to dismiss (Dkt. No.
65).
I.
On May 3, 2017, Parrish, a federal inmate, initiated this
action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.
(“FTCA”) (Dkt. No. 1).1 Pursuant to 28 U.S.C. § 636 and its local

1

Pursuant to a Notice of Deficient Pleading issued to him on May 3, 2018
(Dkt. No. 3), Parrish was directed to re-file his complaint on the proper
court-approved form, which he did on June 16, 2017 (Dkt. No. 7).

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
rules, the Court referred the complaint to Magistrate Judge Aloi
for initial screening and a report and recommendation (“R&R”).
On December 18, 2017, Parrish filed an amended complaint
alleging

claims

of

false

imprisonment,

abuse

of

process,

intentional infliction of emotional distress, negligence, and
malicious prosecution related to the Bureau of Prisons (“BOP”)’s
investigation of a 2009 incident at USP Hazelton and his placement
in various Special Management Units (“SMUs”) during the pendency of
that investigation (Dkt. No. 39). Parrish further alleges that he
filed two Administrative Tort Claim forms regarding these claims,
both of which were subsequently denied by the BOP. Id. at 4.
Parrish contends that, as a result of the defendant’s conduct, he
suffered three years of illegal confinement. Id. at 9. For relief,
he seeks $5,000,000.00 in damages. Id.
By Order entered on May 1, 2018, Magistrate Judge Aloi
directed the defendant to file an answer on the limited issue of
the

timeliness

of

Parrish’s

claims

(Dkt.

No.

57).

Shortly

thereafter, on May 17, 2018, Parrish filed a “Notice of Timeliness”
(Dkt. No. 62). The defendant responded to these developments by
moving to dismiss the amended complaint for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) (Dkt.

2

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
No. 65).2 Parrish then filed a response in opposition to the motion
to dismiss (Dkt. No. 74).
II.
On September 24, 2018, Magistrate Judge Aloi entered an R&R
recommending that the Court grant in part and deny in part the
defendant’s

motion

to

dismiss

(Dkt.

No.

21).

The

R&R

first

recommended that the Court deny the motion to dismiss Parrish’s
claims as stated in Administrative Tort Claim TRT-MXR-06283 based
on the defendant’s failure to specifically advise Parrish of the
six-month deadline within which he was required to file suit in
order to preserve his claims. Id. at 8-9 (explaining that the
failure to include this information in a claim denial letter
prevents the limitations period from running).
Then, after reviewing the administrative record in the case,
the R&R recommended that the Court grant the defendant’s motion to
dismiss Parrish’s claims as stated in Administrative Tort Claim
TRT-MXR-2016-06710

(“Administrative

Claim

‘710”

or

“the

‘710

Claims”). Specifically, the R&R concluded that the ‘710 Claims are
time-barred based on Parrish’s failure to file this action within

2

In United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1629 (2015), the
Supreme Court held that the FTCA’s limitations period is not a
jurisdictional rule but a claims-processing rule. Accordingly, the Court
construes the defendant’s pending motion as one to dismiss Parrish’s
complaint for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).

3

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
six (6) months of the defendant’s final denial of the claims, after
receiving adequate notice of the filing deadline. Id. at 9-10. It
further concluded that neither the “prison mailbox rule” nor the
doctrine of equitable tolling apply to save those claims. Id. at
11-15.
The R&R also informed the parties of their right to file
written objections identifying those portions of the recommendation
to which objections are made and the basis for such objections. Id.
at 15-16. The Court received Parrish’s timely objections to the R&R
on October 29, 2018 (Dkt. No. 81).3 To date, the defendant has not
filed any objections to the R&R. Accordingly, this case is now ripe
for decision.
III.
In reviewing a magistrate judge’s R&R, the Court may adopt
without explanation any recommendations to which no objections are
filed.4 Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983); see also
Nettles v. Wainwright, 656 F.2d 986, 986-87 (5th Cir. 1981). Thus,
as to the portions of the R&R to which Parrish has not specifically

3

Following receipt of a Notice of Change of Address dated October 7,
2018, and received on October 12, 2018 (Dkt. No. 79), the Clerk of Court
mailed a second copy of the Report and Recommendation to Parrish, which
he received on October 19, 2018 (Dkt. No. 80).
4

A failure to file specific objections also “waives appellate review of
both factual and legal questions.” Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991).

4

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
objected, finding no clear error, the Court ADOPTS those portions
of the R&R.
The Court reviews de novo, however, any portions of the R&R to
which

a

specific

objection

is

made.

28

U.S.C.

§

636(b)(1).

Moreover, the pleadings and objections of a pro se plaintiff are
entitled to liberal construction. See DiPilato v. 7-Eleven, Inc.,
662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (noting that pro se
objections should be “accorded leniency” and “construed to raise
the strongest arguments that they suggest” (internal quotation
omitted)).
Here, Parrish objects to the R&R’s recommendation that Court
dismiss the ‘710 Claims as time-barred based on his failure to
commence this action within six (6) months of the BOP’s final
denial of those claims. Accordingly, the Court will take up each of
Parrish’s specific objections to that recommendation in turn below.
A.

Statute of Limitations
As an initial matter, Parrish objects to the magistrate

judge’s conclusion that, pursuant to 28 U.S.C. § 2401(b), he was
required to initiate his FTCA action on the ‘710 Claims on or
before April 6, 2017 (Dkt. No. 81 at 2-3).
The FTCA waives the United States’ sovereign immunity and
allows suits against the federal sovereign for personal injuries

5

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
caused by government employees acting within the scope of their
employment. See 28 U.S.C. § 1346(b), § 2671 et seq. 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 agency” and receive a final denial “by the
agency in writing and sent by certified or registered mail.” 28
U.S.C. § 2675(a).5 Critically, a plaintiff has six (6) months to
initiate

an

action

in

federal

court

after

the

appropriate

government agency mails him notice of its final denial of his
claim. 28 U.S.C. § 2401(b) (stating that a tort claim against the
United States is “forever barred” unless action is begun within six
months after the date of mailing of notice of the agency’s final
claim denial).
Here, Parrish presented Administrative Claim ‘710 to the
appropriate government agency, the BOP, on September 23, 2016,
thereby invoking his administrative remedies (Dkt. No. 65-1 at
11).6 The BOP timely denied Parrish’s claim on October 7, 2016, and

5

A claim is considered to be “presented” when the federal agency receives
written notification of the alleged tortious incident and the alleged
injuries, together with a claim for money damages in a sum certain. 28
C.F.R. § 14.2(a).
6
Specifically, Parrish alleged claims for 1) wrongful confinement; 2)
denial of access to courts; 3) racial harassment by BOP staff; 4) loss
of eye sight; 5) loss of liberty/wrongful confinement; and 6) the illegal
use of restraints. Id.

6

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
advised him that he had six (6) months from that date within which
to file suit in federal court. Id. at 18 (stating in relevant part,
“Your

claim

is

denied.

If

you

are

not

satisfied

with

our

determination in this matter, you may file suit in the appropriate
U.S. District Court not later than six months after the date of
this letter.”). Accordingly, the magistrate judge concluded that
Parrish had until April 6, 2017, to bring his FTCA claim against
the United States. Parrish, however, did not file suit until May 3,
2017, almost one (1) month after that deadline (Dkt. No. 1).
First, Parrish seems to argue that, because the “Heck7 Rule
governs the start of the statue [sic] of limitations” in this case,
his “wrongful confinement/false imprisonment” claims did not accrue
until January 25, 2017, “when [he] got the rehearing charges thrown
out and expunged from [his] record” (Dkt. No. 81 at 2). Thus,
according to Parrish, the statute of limitations on his claims did
not begin to run until that date, less than four months before he
filed suit in this Court. Id.

A careful review of Administrative

Claim ‘710, however, confirms that Parrish’s allegations as to
these claims stem from his administrative detention in various SMUs
from December 2009 to November 2012, in connection with the
investigation of a 2009 killing at USP Hazelton (Dkt. No. 65-1 at
7

Heck v. Humphries, 512 U.S.
477 (1994).

7

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
11; 13-14). Accordingly, these claims accrued on June 3, 2016, the
date

on

which

Parrish’s

administrative

appeal

regarding

that

detention was granted, his record was expunged, and his good time
credit was restored. Id. As noted, Parrish thereafter presented the
claims to the BOP on September 23, 2016.
Alternatively, Parrish argues that, even if he was required to
file this action within six months from the BOP’s final denial of
Administrative Claim ‘710 on October 6, 2016, his complaint was
nonetheless timely because “six months from Oct 7, 2016 is April 7,
2017,” not April 6, 2017, as determined by the magistrate judge,
and his complaint was “dated” April 7, 2017 (Dkt. No. 81 at 3).
Whether Parrish was required to initiate this action by Thursday,
April 6 or Wednesday, 7, 2017, is ultimately immaterial, however,
given that his complaint was not received by this Court until
several weeks past either date, on May 3, 2017 (Dkt. No. 1).
Accordingly, Parrish failed to timely initiate this action under
§ 2401(b).
B.

Prison Mailbox Rule
Next, Parrish objects to the magistrate judge’s determination

that the “mailbox rule” does not apply to FTCA claims. Parrish
argues that, under the mailbox rule, his complaint should be deemed

8

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
timely because it was dated, and purportedly mailed on, April 7,
2017 (Dkt. No. 81 at 2).
Although the United States Court of Appeals for the Fourth
Circuit has not ruled on the mailbox rule’s application to FTCA
claims, the majority of courts addressing the issue, including
other courts within this District, have concluded that the mailbox
rule does not apply to FTCA claims. See, e.g., Blue v. United
States, No. 5:12CV121, 2013 WL 1867093, at *3 (N.D. W. Va. May 3,
2013), aff'd, 549 F. App’x 230 (4th Cir. 2014) (Stamp, J.); Boomer
v. DeBoo, No. 2:11CV207, 2012 WL 112328 (N.D. W. Va. Jan. 12, 2012)
(Bailey, J.) (“‘virtually every circuit to have ruled on the issue
has held that the mailbox rule does not apply to [FTCA] claims,
regardless of whether it might apply to other federal common law
claims.’”)(quoting Vacek v. United States Postal Serv., 447 F.3d
1248, 1252 (9th Cir. 2006)). “This determination is largely based
in the Supreme Court’s continued emphasis on the fact that, when
Congress waives sovereign immunity, that waiver must be strictly
construed and only defined as the waiver is defined explicitly in
the act itself.” Blue, No. 5:12CV121, 2013 WL 1867093, at *3
(citing Vacek, 447 F.3d at 1252).
In his objections, Parrish argues that, based on Houston v.
Lack, 487 U.S. 266 (1988), in prisoner cases, a filing is deemed

9

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
“filed” at the moment that the prisoner places the document in the
prison mail system. However, Parrish “overlooks the fact that in
Houston, the Supreme Court considered the appeal of a federal
habeas claim, not the application of the mailbox rule to FTCA.”
Blue, No. 5:12CV121, 2013 WL 1867093, at *3. Moreover, the FTCA is
“a comprehensive statutory scheme that must be considered apart
from all other tort actions, and its waiver of immunity must be
strictly construed.” Id. Accordingly, this Court agrees that the
Supreme Court’s rulings in Houston are not applicable to this case,
and the mailbox rule does not apply to Parrish’s FTCA claims.
Further, the Court observes that Parrish’s contention that he
gave his complaint to prison officials for mailing no later than
April 7, 2017, is belied by the fact that the envelope containing
the complaint was not postmarked until May 1, 2017 (Dkt. No. 1-2).
In an affidavit attached to the defendant’s motion, USP Big Sandy
Case Management Coordinator Gloria Hartzog (“Hartzog”) stated that
all outgoing mail is collected from inmates at approximately 6:00
A.M. each weekday (i.e., every Monday through Friday) and delivered
to the mail room at USP Big Sandy. It is thereafter transported, at
approximately 8:00 A.M. each weekday, to a United States Postal
Service (“USPS”) facility located in Inez, Kentucky (Dkt. No. 652). Outgoing mail is then transported, on the same day, from the

10

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
USPS facility in Inez to a USPS “hub” located in Charleston, West
Virginia, where the mail is sorted, metered, and dispatched for
delivery. Id.

As stated above, Parrish’s complaint was postmarked

at the USPS hub in Charleston on Monday, May 1, 2017 (Dkt. No. 12). Accordingly, it appears that Parrish forwarded his complaint to
the staff at USP Big Sandy for mailing on that same date or, at the
earliest, over the weekend of April 29 and 30, 2017, or on Friday,
April 28, 2017, after outgoing mail had been collected for the day.
C.

Equitable Tolling
Finally,

Parrish

objects

to

the

magistrate

judge’s

determination that he is not entitled to equitable tolling of the
statute of limitations (Dkt. No. 81 at 3-4).
In 2015, the Supreme Court held that the FTCA’s filing
deadline is not jurisdictional and allows for equitable tolling.
United States v. Kwai Fun Wong, 135 S.Ct. 1625 (2015) (concluding
that “treating the Government like a private person means (among
other things) permitting equitable tolling”). Because the FTCA’s
timeliness requirements are subject to equitable tolling, it is
incumbent on “the [d]istrict [c]ourt to decide whether, on the
facts of [a given] case, [that particular claimant] is entitled to
equitable tolling.” Id. at 1638.

11

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
“A statute can be equitably tolled only if a plaintiff shows
that (1) she pursued her claim with reasonable diligence and (2)
extraordinary circumstances prevented her from filing on time.”
Lucas v. United States, 664 F. App’x 333, 335 (4th Cir. 2016),
cert. denied, 137 S. Ct. 2274 (2017) (citing Holland v. Florida,
560

U.S.

631,

649

(2010)).

Thus,

equitable

tolling

is

an

extraordinary remedy “reserved for ‘those rare instances where—due
to circumstances external to the party’s own conduct—it would be
unconscionable to enforce the limitation period against the party
and gross injustice would result.’” Raplee v. United States, 842
F.3d 328, 333 (4th Cir. 2016), cert. denied, 137 S. Ct. 2274 (2017)
(quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).
Conversely, statutes of limitations are not tolled equitably
in cases where the plaintiff has failed, due to his own “blameless
ignorance,” to file his claim in a timely manner. Clutter-Johnson
v. United States, 242 F. Supp. 3d 477, 485 (S.D. W. Va.), aff’d,
714 F. App’x 205 (4th Cir. 2017) (citing Gould v. United States
Dept. of Health and Human Svcs., 905 F.2d 738, 745–46 (4th Cir.
1990) (“The burden is on plaintiffs to show that due diligence was
exercised and that critical information, reasonable investigation
notwithstanding,

was

undiscoverable.”)).

Further,

“[b]ecause

§ 2401(b) provides a limited waiver of the United States’ sovereign

12

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
immunity,” equitable tolling applies only “sparingly.” Jackson v.
United States, 751 F.3d 712, 719 (6th Cir. 2014). “The party
seeking equitable tolling bears the burden of proving entitlement
to it.” Id.
Regardless of whether Parrish pursued his claims diligently,
he has failed to show any “extraordinary circumstances” preventing
him from filing on time. In arguing for equitable tolling, Parrish
cites “the complex and tricky nature of the circumstances” and “the
research

required”

to

file

his

claims

(Dkt.

No.

81

at

4)(“Throughout this whole ordeal I’ve been studying and learning on
my own. I piece [sic] this puzzle together from scratch . . . .”).
This is not extraordinary. Parrish’s misunderstanding of the law or
misapprehension of a filing deadline is not a basis for equitable
tolling. Giles v. Beckstrom, 826 F.3d 321, 325-26 (6th Cir. 2016)
(collecting cases). Similarly, general ignorance of the law, or pro
se status, is likewise insufficient to warrant equitable tolling.
Of course, wrongful conduct by an opposing party can trigger
equitable tolling. Harris, 209 F.3d at 330. For instance, equitable
tolling is appropriate “in situations where the claimant has
actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant has
been induced or tricked by his adversary’s misconduct into allowing

13

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 (1990). However, “the[se] principles of equitable
tolling . . . do not extend to what is at best a garden variety
claim of excusable neglect.” Id.
Here, the record contains no evidence establishing that the
defendant prevented Parrish from filing his FTCA complaint on time.
Despite Parrish’s contention that, “at every possible turn[,] the
defendants [sic] attempted to mislead the plaintiff into believing
his claims had no merit,” the record reflects that the October 7,
2016 final claim denial letter specifically advised Parrish of the
six-month deadline within which he was required to file suit in
order to preserve his claims (Dkt. No. 65-1 at 18). Likewise,
Parrish does not suggest he lacked notice of the filing requirement
as stated in the October 2016 claim denial letter. In fact, as
noted

above,

Parrish

dated

his

complaint

April

7,

2017,

demonstrating his awareness of the filing deadline established by
the BOP’s final denial of Administrative Claim ‘710.
Because Parrish cannot show any extraordinary circumstances
preventing him from filing his complaint on time, the Court
concludes that Parrish is not entitled to equitable tolling with
regard to the ‘710 Claims.

14

PARRISH V. USA

1:17CV70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 81],
AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 65]
IV.
In conclusion, for the reasons discussed, the Court:
•

OVERRULES Parrish’s objections (Dkt. No. 81);

•

ADOPTS the R&R (Dkt. No. 77);

•

GRANTS in PART the defendant’s motion to dismiss (Dkt.
No. 65) and DISMISSES as time-barred Parrish’s claims as
stated in Administrative Tort Claim TRT-MXR-2016-06710;
and

•

DENIES in PART the defendant’s motion to dismiss (Dkt.
No. 65) and DIRECTS the defendant to address Parrish’s
claims as stated in Administrative Tort Claim TRT-MXR06283 on the merits.

Further, the Court RECOMMITS this case to the magistrate judge for
further proceedings consistent with this Memorandum Opinion and
Order.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit this Order to counsel
of record and to the pro se plaintiff, certified mail, return
receipt requested.
Dated: January 16, 2019
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
15