Opinion
C. A. 1:23-1019-HMH-SVH
11-27-2023
Terrence Renard Russell, Plaintiff, v. Complex Warden and FCI Edgefield, Defendants.
REPORT AND RECOMMENDATION AND ORDER
SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE
Terrence Renard Russell (“Plaintiff”), proceeding pro se, brings a claim pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (“FTCA”) alleging that during his incarceration at Edgefield Federal Correctional Institution, he “suffered extensively from an infection that eventually caused permanent damage to [the] vertebrae in his lower back and neck area of the spine.” [ECF No. 1 at 4]. The United States (“Defendant”) has filed a motion to substitute and a motion to dismiss, arguing that the United States is the proper defendant to Plaintiff's FTCA claim and that the claim is barred by the applicable statute of limitations. [ECF Nos. 39, 41].
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the motion to dismiss and dismissal procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 42]. The motion having been fully briefed [ECF Nos. 44, 45], it is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned grants Defendant's motion to substitute and recommends the district judge deny Defendant's motion to dismiss.
I. Factual and Procedural Background
Plaintiff alleges that from August 3, 2020, to December 2, 2020, he did not receive medical treatment in a timely manner. [ECF No. 1 at 5-6]. Plaintiff indicates that at some point in early September 2022, he filed his FTCA claim with the Department of Justice. [See ECF No. 44-2 at 8].
As to Plaintiff's FTCA claim, he was required to exhaust his administrative remedies with the appropriate federal agency prior to filing the instant lawsuit. See 28 U.S.C. § 2675; see also McNeil v. United States, 508 U.S. 106, 113 (1993). The parties do not dispute that Plaintiff has exhausted his administrative remedies.
On March 15, 2022, the Department of Justice denied Plaintiff's FTCA claim, noting that Plaintiff had “six (6) months from the date of the mailing of this letter to bring suit in the appropriate United States District Court.” [ECF No. 1 at 26-28]. On September 7, 2022, Plaintiff submitted a request for reconsideration of the decision, and the Department of Justice received Plaintiff's request on September 16, 2022, six months and 1 day after his final denial letter had been mailed to him. Id. at 29, 31.
On October 14, 2022, the Department of Justice denied Plaintiff's request for reconsideration, stating as follows:
The final denial letter in this action was mailed to you via certified mail on March 15, 2022, and informed you that you had six months from the date of mailing in which to file suit in an appropriate United States District Court. You signed for an received the denial letter on March 16, 2022. Your reconsideration request was received by the agency on September 16, 2022, beyond the six-month deadline, and as such, is untimely. Based upon the foregoing, your claim will not be reconsidered.Id. at 31.
II. Discussion
A. Standard on Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Motion to Substitute
Under the FTCA, a federal employee is immune from personal liability suits if the claims arise “within the scope of their employment.” Doe v. Meron, 929 F.3d 153, 160 (4th Cir. 2019); see 28 U.S.C. § 2679(a), (b) (stating that the FTCA does not authorize suits against federal agencies or employees); 28 U.S.C. § 1346(b)(1). The United States Attorney, acting on behalf of the Attorney General, must “certify” that the employee was acting in the scope of his or her employment. Maron v. United States, 126 F.3d 317, 321 (4th Cir. 1997). Unless the plaintiff challenges this certification, it is “conclusive.” Doe, 929 F.3d at 160.
Defendant has provided the requisite certification from the United States Attorney [ECF No. 39], which Plaintiff has not challenged. Accordingly, the undersigned grants Defendant's motion to substitute.
2. Motion to Dismiss
Plaintiff alleges he suffered damages as a result of negligence of federal employees who acted within the scope of their office; therefore, the FTCA is controlling. See 28 U.S.C. §§ 1346(b), §2671 et seq. In FTCA actions, a remedy against the United States is exclusive of any other civil action or proceeding for money damages against the employee whose act or omission gave rise to the claim. 28 U.S.C. §2679(b)(1).
Generally, the United States may not be sued without its consent, which must be unequivocally manifested in the plain language of a statute. Lane v Pena, 518 U.S.187, 192 (1996). “To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims.” Id. (citing United States v. Nordic Vill. Inc., 503 U.S. 30, 34 (1992)). Pursuant to the FTCA, “[t]he United States shall be liable, . . . relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.
Title 28 U.S.C. § 2401(b) contains the statute of limitations under the FTCA and states in relevant part as follows:
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). Regarding Plaintiff's motion for reconsideration, filed with the Department of Justice, the relevant regulations provide as follows:
(a) Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notification.
(b) Prior to the commencement of suit and prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b), a claimant, his duly authorized agent, or legal representative, may file a written request with the agency for reconsideration of a final denial of a claim under paragraph (a) of this section. Upon the timely filing of a request for reconsideration the agency shall have 6 months from the date of filing in which to make a final disposition of the claim and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of a
request for reconsideration. Final agency action on a request for reconsideration shall be effected in accordance with the provisions of paragraph (a) of this section.28 C.F.R. § 14.9 (emphasis added).
Thus, under the statute and the regulations, within six months following the mailing of the notice of a “final denial,” a claimant may either file suit in district court (28 U.S.C. § 2401(b)) or file a request for reconsideration with the agency (28 C.F.R. § 14.9(b)). As stated by the Ninth Circuit, “[u]nder 28 C.F.R. § 14.9(b) a timely request for agency reconsideration, one filed within six months of the original denial, extends the time in which a claimant may file suit for six months after the filing of the request for reconsideration.” Gervais v. United States, 865 F.2d 196, 196197 (9th Cir. 1988).
When a plaintiff fails to follow the statutory exhaustion requirements, a federal district court lacks subject matter jurisdiction over the claim. See Plyler v. United States, 900 F.2d 41 (4th Cir. 1990); see also McNeil v. United States, 508 U.S. 106, 113 (1993). The burden of establishing subject matter jurisdiction over an FTCA claim lies with the plaintiff. Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005).
The parties do not dispute that the Department of Justice denied Plaintiff's FTCA claim via certified mailing sent on March 15, 2022. The parties also do not dispute that the Department of Justice received Plaintiff's request for reconsideration six months and one day later, on September 16, 2022. Plaintiff argues, however, that the court should allow his FTCA claim to proceed because he is entitled to the application of the prison mailbox rule as to his filing with the Department of Justice, rendering his FTCA claim timely. [See ECF No. 44 at 3].
Turning to Plaintiff's first argument, based on Houston v. Lack, 487 U.S. 266 (1988), in prisoner cases, a filing is deemed “filed” at the moment that the prisoner places the document in the prison mail system. In Houston, however, the Supreme Court considered the appeal of a federal habeas claim and did not consider the application of the mailbox rule to FTCA claims. Although the Fourth Circuit has extended Houston's holding to other circumstances, see Lewis v. Richmond City Police Department, 947 F.2d 733 (4th Cir. 1991) (applying the prison mailbox rule when a Virginia inmate hands a complaint brought pursuant to 42 U.S.C. § 1983 to prison officials for mailing to a federal court), the Fourth Circuit has declined to determine if Houston's holding applies in the FTCA context. See Boomer v. Deboo, 473 Fed.Appx. 226, 227 n.1 (4th Cir. 2012) (“In so concluding, we find it unnecessary to evaluate whether the district court correctly concluded that the prison mailbox rule is inapplicable to FTCA administrative claims.”).
However, this court has applied the prison mailbox rule to filings of FTCA claims in this district. See, e.g., Greer v. McGregor, C/A No. 8:10-2219-HMH, 2010 WL 4922705, at *1 n.1 (D.S.C. Nov. 4, 2010), report and recommendation adopted sub nom. Geer v. McGregor, C/A No. 8:10-2219-HMH-BHH, 2010 WL 4922702 (D.S.C. Nov. 29, 2010).
Additionally, other courts have applied the prison mailbox rule to filings made with the relevant administrative agencies concerning FTCA claims. As stated by the Second Circuit:
We have held that a pro se prisoner's § 1983 complaint is deemed filed, for statute of limitations purposes, when it is delivered to prison officials. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir.1993) (citing Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)). This rule is founded on the notion that “[u]nlike other litigants, the pro se prisoner litigant cannot personally ensure receipt of his legal documents by the court clerk.” Id. at 682. Since, with regard to the difficulties inherent in being a pro se prisoner litigant, we see no difference between the filing of a court action and the filing of an administrative claim, we hold that Dory applies to an FTCA administrative filing. It follows that Tapia-Ortiz's FTCA claim, which was mailed from prison before the statute of limitations period had run, is not time-barred.Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (footnote omitted); Censke v. United States, 947 F.3d 488, 489, 492-93 (7th Cir. 2020) (“Censke placed his administrative complaint under the Federal Tort Claims Act in the prison's mailbox with nine days to spare, but the government stamped it as received after the statutory deadline had passed .... Because administrative claims filed under the FTCA fall within Houston's framework and do not implicate the concerns underpinning the Court's reasoning in Fex, we hold that the prison-mailbox rule applies here.”); Michel v. Fed. Bureau of Prisons FCI, C/A No. 7:16-863-RDP-HNJ, 2018 WL 835101, at *3 (N.D. Ala. Feb. 13, 2018) (“The court agrees with the Magistrate Judge that a holding that the prison mailbox rule applies to the administrative filing of a FTCA claim most closely aligns with the precedent set forth by the Eleventh Circuit in Barnett, 283 F.3d 1232, and Garvey, 993 F.2d 776.”); Yaromich v. United States, No. 3:13-CV-1726, 2014 WL 5365325, at *5 (M.D. Pa. Oct. 21, 2014) (noting the Third Circuit relied in part on the logic in Tapia-Ortiz in holding the prisoner mailbox rule applies when a prisoner files a claim in an administrative forfeiture proceeding) (citing Longenette v. Krusing, 322 F.3d 758, 762 (3d Cir. 2003)).
Defendant has provided limited case law that addresses the common law mailbox rule, without discussion of the prison mailbox rule, or relies heavily on the common law mailbox rule. [See ECF No. 45 at 1-2 (citing Boomer v. Deboo, No. 2:11-CV-07, 2012 WL 112328, at *2 (N.D. W.Va. Jan. 12, 2012) (addressing common law mailbox rule), aff'd, 473 Fed.Appx. 226 (4th Cir. 2012)); Dickson v. United States, No. 1:14-CV-01784, 2016 WL 3585573, at *5 (M.D. Pa. July 1, 2016) (relying on case law from the Third and Ninth Circuits addressing the common law mailbox rule to conclude the prison mailbox rule does not apply to claims under the FTCA); Blue v. United States, C/A No. 5:12-121, 2013 WL 1867093, at *1 (N.D. W.Va. May 3, 2013), aff'd, 549 Fed.Appx. 230 (4th Cir. 2014) (same)).
As stated by the Fourth Circuit, “courts created a mailbox rule: if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed.” Pond v. United States, 69 F.4th 155, 162 (4th Cir. 2023) (citations omitted).
Most of the cases cited by Defendant do not address the application of the prison mailbox rule as established in Houston. [See ECF No. 41 at 7-8].
As noted by the Ninth Circuit in Vacek, “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.” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1252 (9th Cir. 2006). However, the Ninth Circuit so found in the context of a FTCA claim asserted by a person, represented by counsel, alleging he was injured during the course of his employ. See id. at 1249. In Vacek, the court did not address the prison mailbox rule or the Supreme Court's decision in Houston. See generally id.; see also Lightfoot v. United States, 564 F.3d 625, 628 (3d Cir. 2009) (same).
The common law mailbox rule and the prison mailbox rule are not interchangeable, and the court finds persuasive the reasoning provided by the weight of authority cited above directly addressing this issue. See, e.g., Censke, 947 F.3d at 493 (“Censke's experience demonstrates that pro se prisoners face the same obstacles sending administrative forms as they do court documents. For both filings, ‘the pro se prisoner has no choice but to entrust the forwarding of his [filing] to prison authorities whom he cannot control or supervise[.]' Houston, 487 U.S. at 271, 108 S.Ct. 2379.”).
Accordingly, the undersigned recommends the prison mailbox rule should apply to Plaintiff's submission to the Department of Justice in this context, rendering his instant FTCA claim timely. Because Plaintiff's FTCA claim is not barred by the applicable statute of limitations, the undersigned further recommends that the district judge deny Defendant's motion to dismiss.
Given the recommendation above, the court need not address Plaintiff's arguments that he is entitled to equitable tolling.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned grants Defendant's motion to substitute [ECF No. 39] and recommends the district judge deny Defendant's motion to dismiss. [ECF No. 41].
IT IS SO ORDERED AND RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).