United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT, UNITED STATES MAGISTRATE JUDGE
March 26, 2018, Plaintiff initiated this case by filing a
pro se complaint pursuant to the Federal Tort Claim
Act (“FTCA”). Because the complaint was not on the
court approved form, the Clerk of Court sent him a Notice of
Deficient Pleading and enclosed the required form. On April
16, 2018, Plaintiff filed the court-approved form. This
matter is before the undersigned for an initial review and
report and recommendation pursuant to LR PL P 2, and 28
U.S.C. Â§' 1915(e) and 1915(A).
complaint, Plaintiff alleges that Dr. Vaslakis and his
assistant, Romona Locko, both employed by Monongalia
Hospital, caused a serious burn to his right arm with a
bovie, when they failed to holster it, but
instead laid it against his arm. In addition, Plaintiff
alleges that the burn was not properly or continuously
treated which caused an infection and further pain and
injuries. Plaintiff maintains that Vaslakis and Locko were
acting as Bureau of Prison medical staff on behalf of the
United States. For relief, he seeks damages in the amount of
about July 28, 2016, Plaintiff filed his administrative tort
claim indicating that he was injured on April 28, 2016, and
seeking $50, 000 in damages. ECF No. 6-2 at 5. On September
12, 2016, the claim was denied. The denial letter notified
Plaintiff that if he was dissatisfied, he could file suit in
the appropriate U.S. District Court not later than six month
after the date of the letter. ECF No. 6-2 at 4.
Standard of Review
Plaintiff is a prisoner seeking redress from a governmental
entity or employee, the Court must review the complaint to
determine whether it is frivolous or malicious. Pursuant to
28 U.S.C. § 1915A(b), the Court is required to perform a
judicial review of certain suits brought by prisoners and
must dismiss a case at any time if the Court determines that
the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief.
complaint is frivolous if it is without arguable merit either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). However, the Court must read pro se
allegations in a liberal fashion. Haines v. Kerner,
404 U.S. 519, 520 (1972). A complaint which fails to state a
claim under Fed.R.Civ.P. 12(b)(6) is not automatically
frivolous. See Neitzke, 490 U.S. at 328.
Frivolity dismissals should only be ordered when the legal
theories are “indisputably meritless,
” or when the claims rely on factual
allegations which are “clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992). This
includes claims in which the plaintiff has little or no
chance of success. See Estelle v. Gamble, 429 U.S.
97, 106 (1976).
well-established that the United States is immune from suit
unless it consents to be sued. See United States v.
Testan, 424 U.S. 392 (1976). However, the FTCA waives
the federal government's traditional immunity from suit
for claims based on the negligence of its employees. 28
U.S.C. § 1346(b)(1). Specifically, “[t]he statute
permits the United States to be held liable in tort in the
same respect as a private person would be liable under the
law of the place where the act occurred.” Medina v.
United States, 259 F.3d 220, 223 (4th Cir. 2001).
Nonetheless, the FTCA only waives the government's
sovereign immunity if certain terms and conditions are met.
Honda v. Clark, 386 U.S. 484 (1967). One of those
conditions is that an FTCA action be filed within two years
of the incident or within six months of the final claim
denial. 28 U.S.C. § 2401(b). Here, Plaintiff presented
his claim to the appropriate agency within two years from the
date of the event. Plaintiff's administrative claim was
denied on September 12, 2016. In the letter of final denial,
Plaintiff was correctly advised that he had six months from
the date of the denial to bring suit in federal
court.Id. Six months from the date of
final denial was March 13, 2017. Plaintiff did not initiate
the instant action until March 26, 2018. Therefore,
Plaintiff's claim is clearly time-barred.
the FTCA waives the United States traditional grant of
sovereign immunity, the statute must be strictly construed.
United States v. Kubrick, 444 U.S. 111, 117B18
(1979). Put simply, because the United States may not be sued
without its permission, the Court may not take it upon itself
“to extend the waiver beyond that which Congress
intended.” Id. Therefore, “[i]f an
action is not filed as the statute requires, the six-month
time period may not be extended” by the Court.
Tuttle v. United States Postal Service, 585 F.Supp.
55 (M.D.Pa. 1983) (citing United States v. Kubrick
444 U.S. 111, 117B18)).
undersigned recognizes that the United States Supreme Court
has held that the FTCA's statute of limitations is a
procedural, not jurisdictional bar. United States v. Kwai
Fun Wong, 135 S.Ct. 1625, 1627 (2015). Accordingly,
equitable tolling is applicable to FTCA's statute of
limitation. However, equitable tolling in suits against the
United States is only available in exceptional circumstances.
See Muth v. UnitedStates, 1 F.3d 246, 251
(4th Cir. 1993). More specifically, the Fourth Circuit has
stated that equitable tolling principles are appropriate only
Awhere the defendant has wrongfully deceived or mislead the
plaintiff in order to conceal the existence ...