United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
pro se medical malpractice action by a former
federal inmate has been referred to the undersigned United
States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference from
Senior United States District Judge Sam R. Cummings. The
Court has granted Plaintiff Tony Evans leave to proceed
in forma pauperis (“IFP”). And, because
the face of his complaint reveals that the claims he asserts
are likely time-barred, the undersigned enters these findings
of fact, conclusions of law, and recommendation that the
Court should dismiss the complaint without prejudice to Evans
filing, within a reasonable amount of time, an amended
complaint against the United States that includes a plausible
claim of equitable tolling.
alleges that the “FCI Seagoville Medical Staff”
and two individual doctors - a surgeon at Presbyterian
Hospital in Dallas and a doctor associated with a
rehabilitation hospital in DeSoto - “are liable for
health issues [he] continue[s] to suffer from in [his]
back.” Dkt. No. 3 at 3; see also Id. at 2
(alleging a single cause of action, for “Medical Injury
to Evans, in 2009, while incarcerated at Seagoville, he began
experiencing back pain, which he reported to officials, and,
“[o]nce reported, it took approximately four (4) years
for [him] to be seen by a doctor.” Id. at 3.
On January 17, 2013, he was transported to Presbyterian,
where an operation was “performed on [his] lower back
to remove a cyst near the nerve system.” Id. A
second surgery, at a separate hospital, was performed in
December of 2013. See Id. From late December of 2013
through March of 2014, Evans was in a rehabilitation hospital
in DeSoto, before being returned to Seagoville. See
Id. On April 28, 2014, he was transferred to FCI - Fort
Worth. See Id. And, based on his current address, it
appears that he has been released from federal custody.
who seeks more than $3 million in damages, see Id.
at 4, filed an administrative tort claim with the Federal
Bureau of Prisons (“BOP”) that was denied as
untimely in November of 2017, see Id. at 5.
Standards and Analysis
district court is required to screen a civil action filed IFP
and may summarily dismiss that action if it concludes, for
example, that the action “is frivolous or
malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). If
“‘it is clear from the face of a complaint ...
that the claims asserted are barred by the applicable statute
of limitations, those claims are properly dismissed' as
frivolous.” Wilson v. U.S. Penitentiary
Leavenworth, 450 Fed.Appx. 397, 399 (5th Cir. 2011) (per
curiam) (quoting Gartrell v. Gaylor, 981 F.2d 254,
256 (5th Cir. 1993)); see also Meriwether v. ABC
Training/Safety Council Tex. Gulf Coast Chapter, No.
3:15-cv-862-N-BH, 2016 WL 8711726, at *2 (N.D. Tex. Oct. 24,
2016) (“Courts ‘may raise the defense of
limitations sua sponte, '” and,
“‘where “‘it is clear from the face
of a complaint filed in forma pauperis that the
claims asserted are barred by the applicable statute of
limitations, those claims are properly dismissed” under
28 U.S.C. § 1915(e)(2)(B).” (citations and
brackets omitted)), rec. accepted, 2016 WL 871279
(N.D. Tex. Nov. 18, 2016).
extent that Evans is alleging medical malpractice or
negligence against the BOP, a federal agency, or employees of
that agency under the Federal Torts Claims Act
(“FTCA”), those claims “may be brought
against only the United States, and not the agencies or
employees of the United States.” Esquivel-Solis v.
United States, 472 Fed.Appx. 338, 340 (5th Cir. 2012)
(per curiam) (citing 28 U.S.C. §§ 2671, 2679;
Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988)).
“[A]n FTCA claim brought against a federal agency or
employee rather than the United States shall be dismissed for
want of jurisdiction.” Id. (citations
omitted); see also Galvin, 860 F.2d at 183
(“[A]n FTCA claim against a federal agency or employees
as opposed to the United States itself must be dismissed for
want of jurisdiction.”); Nicosia v. Sec'y of
Army, 220 F.3d 585, 2000 WL 959898, at *1 (5th Cir. June
13, 2000) (per curiam) (failure to “name the United
States as a defendant ... is fatal to FTCA
the Court has a “duty to construe pro se
[filings] liberally so that a litigant will not suffer simply
because he did not attend law school or find a suitable
attorney.” United States v. Ayika, 554
Fed.Appx. 302, 308 (5th Cir. 2014) (per curiam). Under that
duty, other courts have added the United States as a
defendant sua sponte, rather than dismiss a pro
se FTCA suit. See, e.g., Lewis v.
Maye, No. 13-3050-SAC, 2013 WL 1873252, at *3 (D. Kan.
May 3, 2013) (“the court liberally construes this
pro se complaint by substituting the United States
as the only defendant in plaintiff's FTCA claim”);
cf. Sereseroz v. Dep't of VA, No.
3:14-cv-2723-M, 2014 WL 5297375 (N.D. Tex. Oct. 16, 2014)
(liberally construing pro se FTCA claim against
“United States of America/Dept of VA” “to
mean Plaintiff is suing the United States of America and the
even if the United States is added as a defendant, the claims
that Evans brings likely are barred under the applicable
statute of limitations.
the FTCA's statute of limitations, “a tort claim
against the United States ‘shall be forever barred'
unless it is presented to the ‘appropriate Federal
agency within two years after such claim accrues' and
then brought to federal court ‘within six months'
after the agency acts on the claim, ” United States
v. Kwai Fun Wong, 135 S.Ct. 1625, 1629 (2015) (quoting
28 U.S.C. § 2401(b)). And, even if the Court liberally
construes the facts alleged in the complaint to find that
Evans's tort claims did not accrue until April 28, 2014,
the date he was transferred from Seagoville, those claims
were not presented to the BOP within two years from that
date. See Dkt. No. 3 at 5 (“Your claim was
received by the [BOP] on November 3, 2017.”).
statute of limitations, however, is “non-jurisdictional
and subject to equitable tolling.” Wong, 135
S.Ct. at 1638. Even so, “a litigant is entitled to
equitable tolling of a statute of limitations only if the
litigant establishes two elements: ‘(1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.'” Menominee Indian Tribe of Wis.
v. United States, 136 S.Ct. 750, 755 (2016) (quoting
Holland v. Florida, 560 U.S. 631, 649 (2010));
see also Stamper v. Duval Cty. Sch. Bd., 863 F.3d
1336, 1342 (11th Cir. 2017) (“Equitable tolling is
appropriate when a movant untimely files because of
extraordinary circumstances that are both beyond [his]
control and unavoidable even with diligence.” (citation
screening his complaint affords Evans a lenient construction
of his claims, he fails therein to mention equitable tolling
or hint that the concept applies by alleging facts from which
the Court may infer that “some extraordinary
circumstance stood in his way and prevented” the timely
presentment of his tort claims to the BOP. Cf. Peterson
v. United States, No. 8:18-cv-217-T-17TGW, 2018 WL
1832417, at *2 (M.D. Fla. Feb. 16, 2018) (“The
FTCA's limitation period, however, is subject to
equitable tolling. The plaintiff does not even mention that
it applies. In light of the length of time between the death
and the filing of ...