Opinion
Civ. 21-488 MIS/GJF
02-09-2022
ANTONIO GARCIA, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THE HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court upon Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF 19. The Motion is fully briefed. The Motion requests that the Court dismiss Plaintiff's pro se Complaint with prejudice because (1) the Complaint was filed outside of the statute of limitations and (2) “Plaintiff presents no equitable basis for tolling the statute of limitations.” Id. at 1-6.
The Court recommends dismissing Plaintiff's Complaint and this case for the following reasons:
(1) Plaintiff has consented to such a course of action. D.N.M.LR-Civ. 7.1(b).
(2) Plaintiff's suit was filed on May 27, 2021, over two months after the applicable statute of limitations. 1
(3) Plaintiff has not shown that he is “entitled to equitable-tolling of [the] statute of limitations.”
IT IS THEREFORE RECOMMENDED that Defendant's Motion [ECF 19] be GRANTED IN PART in that Plaintiffs Complaint [ECF 1] and this case be DISMISSED WITHOUT PREJUDICE
SO RECOMMENDED.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1)(c). Any request for an extension must be filed in writing no later than seven days from the date of this filing. A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed. 2