Opinion
5:22-cv-409-WFJ-PRL
09-04-2024
ANGEL E. GASTON, Plaintiff, v. CITY OF LEESBURG, et al., Defendants.
ORDER
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
Plaintiff, pro se, is proceeding on his Amended Complaint. (Doc. 18). On December 7, 2023, Plaintiff submitted, via the jail mailing system, a “Notice of Intent to Sue and/or Commencement of Complaint. (Doc. 61). Under Fla. Stat. § 768.28(6)(a) a claimant must present claim in writing to the appropriate agency within 3 years after the claim accrues. Here, Plaintiff's claims stem from an August 17, 2020, interaction. Thus, the Notice is untimely as to the claims raised in the Amended Complaint.
Plaintiff also filed a “Motion for Tolling of Time on Fla. Stat. Ch. 768.28(6)(a)” seeking to toll the statute of limitations under Florida Statute § 95.051, due to a state court finding of incompetence. (Doc. 62). Section 95.051(d) only applies when the adjudication of incapacity occurs “before the cause of action accrued.” Here, Plaintiff's claims accrued on August 17, 2020 and the Order finding Plaintiff incompetent to proceed was entered on February 3, 2021. See Doc. 62 at 5. Therefore, Plaintiff is not entitled to statutory or equitable tolling of the statute of limitations and his Motion (Doc. 62) is DENIED.
DONE and ORDERED.