Gabbidon v. Wilson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

PAULETTE GABBIDON,

Plaintiff,

v. CIVIL ACTION NO. 1:19-00828

DAVID R. WILSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

In this case, plaintiff alleges that while she was

incarcerated in federal prison, a captain at the prison sexually

assaulted her on numerous occasions and forced her to do

personal labor for him. The United States has moved to dismiss1

this case on grounds that because plaintiff missed the six-month

window in which to file suit after the agency’s mailing of its

rejection letter, her claim is “forever barred.” (ECF No. 34.)

28 U.S.C. § 2401(b). Plaintiff opposes the motion.2 For the

reasons that follow, the motion is DENIED.

1 The United States has moved for summary judgment in the

alternative.

2 Plaintiff moved to exceed the page limitation on response

memoranda. (ECF No. 45.) For good cause shown, her motion is

GRANTED.

I. Background

Plaintiff was incarcerated at FPC Alderson (“Alderson”) in

West Virginia from 2015 to 2018. She alleges that she was the

victim of sexual assault and enslavement at the hands of a

prison official, former Captain Jerrod Grimes (“Grimes”), and

that other prison officials breached their duty to intervene or

report Grimes’s abuse. Specifically, she alleges that from 2016

to 2017 Grimes raped her on numerous occasions and forced her to

clean his home and the homes of other prison officials without

compensation. She alleges a “culture of sexual abuse” (ECF No.

6, at 1-2) that rose to the level of “sex trafficking within FPC

Alderson” (id.) and that involved at least five other victims.

She also alleges that Grimes is a “convicted serial rapist.”

(Id. at 3.)

In December 2017, a chaplain at Alderson urged plaintiff to

get an attorney, which she did. On May 2, 2018, her attorney

attempted to file a claim under the Federal Tort Claims Act

(“FTCA”) with the Bureau of Prisons (“BOP”). BOP rejected the

claim as insufficient for failure to specify the dates of the

injuries. She then submitted a new claim, which the

Consolidated Legal Center at Beckley, West Virginia, received on

September 26, 2018.3

3 The claim, however, is dated July 25, 2018.

BOP rejected this claim by letter dated January 28, 2019.

After preliminary settlement discussions, plaintiff’s counsel

orally requested that BOP reconsider the claim with a new demand

amount. A dispute later arose as to whether BOP had represented

that it would issue a new denial letter. When BOP refused to

provide a new denial letter, plaintiff submitted another claim

on November 1, 2019. Shortly thereafter, BOP rejected the claim

as duplicative and as not filed in the right location. On

November 21, 2019, plaintiff filed this action.

II. Standards

a. Rule 12(b)(1)

A motion to dismiss pursuant to Rule 12(b)(1) asks whether

a court has the ability to hear and adjudicate the claims

brought before it. Federal courts are courts of limited

jurisdiction and can act only in those specific instances

authorized by Congress. See Bowman v. White, 388 F.2d 756, 760

(4th Cir. 1968). The plaintiff bears the burden of proving the

existence of subject matter jurisdiction. See Evans v. B.F.

Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Further, a

party who brings an action against the United States pursuant to

the FTCA “bears the burden of pointing to . . . an unequivocal

waiver of immunity.” Williams v. United States, 50 F.3d 299,

304 (4th Cir. 1995) (quoting Holloman v. Watt, 708 F.2d 1399,

1401 (9th Cir. 1983)).

Some Rule 12(b)(1) challenges require the court to assume

the complaint’s allegations are true, while other Rule 12(b)(1)

challenges allow the court to evaluate the evidence supporting

the complaint’s allegations. See Adams v. Bain, 697 F.2d 1213,

1219 (4th Cir. 1982). As the Fourth Circuit has explained:

There are two critically different ways in which to

present a motion to dismiss for lack of subject matter

jurisdiction. First, it may be contended that a

complaint simply fails to allege facts upon which

subject matter jurisdiction can be based. In that

event, all the facts alleged in the complaint are

assumed to be true and the plaintiff, in effect, is

afforded the same procedural protection as he would

receive under a Rule 12(b)(6) consideration. Second,

it may be contended that the jurisdictional

allegations of the complaint were not true. A trial

court may then go beyond the allegations of the

complaint and in an evidentiary hearing determine if

there are facts to support the jurisdictional

allegations.

Id.; see also Williams, 50 F.3d at 304 (citing 2A James W.

Moore, Moore’s Federal Practice ¶ 12.07 at 12-49-12-50 (2d ed.

1994)) (stating that in deciding Rule 12(b)(1) motions, courts

may “consider the evidence beyond the scope of the pleadings to

resolve factual disputes concerning jurisdiction.”); S.R.P. v.

United States, 676 F.3d 329, 332 (3d. Cir. 2012) (“Because the

Government’s motion presented a factual challenge to subject

matter jurisdiction, the District Court was not confined to the

allegations in [the] complaint, and was entitled to

independently evaluate the evidence to resolve disputes over

jurisdictional facts.”).

b. Rule 12(b)(6)

“The purpose of a Rule 12(b)(6) motion is to test the

[legal] sufficiency of a complaint; importantly, [a Rule

12(b)(6) motion] does not resolve contests surrounding the

facts, the merits of a claim, or the applicability of defenses.”

Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir.

1999) (citations and internal quotation marks omitted). A Rule

12(b)(6) defense asserts that even if all the factual

allegations in a complaint are true, they remain insufficient to

establish a cause of action. This court is also mindful that

“[w]hether a particular ground for opposing a claim may be the

basis for dismissal for failure to state a claim depends on

whether the allegations in the complaint suffice to establish

that ground, not on the nature of the ground in the abstract.”

Jones v. Bock, 549 U.S. 199, 215 (2007).

Related to this, Federal Rule of Civil Procedure 8(a)(2)

requires that “a pleading . . . contain a ‘short and plain

statement of the claim showing that the pleader is entitled to

relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677—78 (2009)

(citing Fed. R. Civ. P. 8(a)(2)). The purpose of Rule 8(a)(2)

is to ensure that “the defendant [receives] fair notice of what

the . . . claim is and the grounds upon which it rests.” Conley

v. Gibson, 355 U.S. 41, 47 (1957). A plaintiff must allege

“‘enough facts to state a claim to relief that is plausible on

its face’” and “‘raise a right to relief above the speculative

level.’” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,

615 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)).

The United States Supreme Court has maintained that

“[w]hile a complaint . . . does not need detailed factual

allegations, . . . a plaintiff’s obligation to provide the

grounds of his entitle[ment] to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Twombly, 550 U.S. at 555

(citations and internal quotation marks omitted). The court

need not “accept as true unwarranted inferences, unreasonable

conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D.

Assocs. Ltd P’ship, 213 F.3d 175, 180 (4th Cir. 2000). Courts

must also take care to avoid confusing the veracity or even

accuracy underlying the allegations that a plaintiff has leveled

against a defendant with the allegations’ likelihood of success.

While “the pleading must contain something more . . . than . . .

a statement of facts that merely creates a suspicion [of] a

legally cognizable right of action,” 5 C. Wright & A. Miller,

Federal Practice and Procedure § 1216, pp 235-36 (3d ed. 2004),

“assum[ing]” of course “that all the allegations in the

complaint are true (even if doubtful in fact),” Twombly, 550

U.S. at 555, it is also the case that “Rule 12(b)(6) does not

countenance . . . dismissals based on a judge’s disbelief of a

complaint’s factual allegations.” Neitzke v. Williams, 490 U.S.

319, 327 (1989). Therefore, courts must allow a well-pleaded

complaint to proceed even if it is obvious “that a recovery is

very remote and unlikely.” Scheuer v. Rhodes, 416 U.S. 232, 236

(1974).

c. Summary Judgment

Rule 12(d) of the Federal Rules of Civil Procedure requires

the court to treat a motion to dismiss under Rule 12(b)(6) as

one for summary judgment when matters outside the pleadings are

presented to and not excluded by the court. “‘Federal courts

have complete discretion’ in determining whether to exclude

material beyond the pleadings or to convert a motion to dismiss

into a motion for summary judgment.” Vail v. City of New York,

68 F. Supp. 3d 412, 420 (S.D.N.Y. 2014) (quoting Kouakou v.

Fideliscare N. Y., 920 F. Supp. 2d 391, 396 (S.D.N.Y. 2012)).

A motion for summary judgment will be granted only if there

exists no genuine issue as to any material fact and the movant

is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If

there clearly exist factual issues “that properly can be

resolved only by a finder of fact because they may reasonably be

resolved in favor of either party,” then summary judgment for

the movant is unavailable. Anderson, 477 U.S. at 250; see also

Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th

Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th

Cir. 1987). The movant bears the burden of showing that there

is no genuine issue as to any material fact and that he is

entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Catawba Indian Tribe of South Carolina v. South Carolina,

978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972

(1993).

When adjudicating a summary judgment motion, the district

court must construe the facts alleged in the light most

favorable to the party opposing the motion. See United States

v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins

Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985).

Furthermore, “[a] party who bears the burden of proof on a

particular claim must factually support each element of his or

her claim.” Weakland v. United States, 2005 WL 300084, at *3

(D. Md. Feb. 8, 2005). “[A] complete failure of proof

concerning an essential element . . . necessarily renders all

other facts immaterial.” Celotex Corp., 477 U.S. at 323.

Therefore, with respect to the issues on which the nonmovant

bears the burden of proof, it remains the nonmovant’s

“responsibility to confront the motion for summary judgment with

an affidavit or other similar evidence in order to show the

existence of a genuine issue for trial.” Weakland, 2005 WL

300084, at *3; see also Anderson, 477 U.S. at 256; Celotex

Corp., 477 U.S. at 324.

That said, “[a] mere scintilla of evidence in support of

the nonmovant’s position will not defeat a motion for summary

judgment.” Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th

Cir. 1997), cert. denied, 522 U.S. 810 (1997). The United

States Supreme Court has asserted that there must exist

“sufficient evidence favoring the [nonmovant] for a jury to

return a verdict for that party.” Anderson, 477 U.S. at 249-50

(citations omitted). “If the evidence is merely colorable, or

is not significantly probative, summary judgment may be

granted.” Id. (citations omitted).

III. Analysis

Under 28 U.S.C. § 2401(b),

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.

Defendant bases its motion on plaintiff’s alleged non-compliance

with the six-month timing requirement. A motion to dismiss

under 12(b)(1) is improper because “the FTCA’s time bars are

nonjurisdictional.” See United States v. Kwai Fun Wong, 575

U.S. 402, 420 (2015). Accordingly, defendant’s motion under

Rule 12(b)(1) is DENIED. Defendant submitted a declaration with

several attachments thereto in support of its motion. Plaintiff

submitted documents and declarations in response. Therefore,

the court will treat defendant’s 12(b)(6) motion as a motion for

summary judgment.

Defendant says that plaintiff’s case is time-barred under

the FTCA because plaintiff missed the six-month window in which

to file suit after BOP’s rejection of her FTCA administrative

claim. Although plaintiff filed this case within six months of

the rejection of her November 1, 2019 claim, defendant says that

the November 1 claim is not operative for purposes of the six-

month deadline because it was duplicative of one filed nine

months earlier. Defendant also says that this is not one of the

rare situations calling for equitable tolling to extend the six-

month deadline.

Plaintiff responds with alternative arguments. First, she

says that her November 1, 2019 claim was not duplicative;

therefore, the filing of this case on November 21, 2019, was

timely. Second, she says that this is one of the extraordinary

cases in which equitable tolling is appropriate. Her

extraordinary circumstances narrative culminates with a U.S.

Immigration and Customs (“ICE”) agent instructing her to put her

civil case on hold, which she “frantically” and immediately

asked her attorney to do. (See ECF No. 42, at 11.)

a. The November 1, 20194 Claim Was Partially Duplicative

Because the May 15, 2018 and September 26, 2018 claims5

provided sufficient presentment of the injuries alleged in the

November 1, 2019 claim, the November 1 claim was duplicative; as

such, and because it came more than six months after BOP’s

rejection, it did not reopen the six-month window of time for

the filing of a complaint.

A duplicative injury claim presented to a federal agency

more than six months after the original claim is a nullity for

purposes of the six-month rule. See Roman-Cancel v. United

States, 613 F.3d 37, 42-44 (1st Cir. 2010). A claim is

4 The operative time for a claim is when it is received, but

because defendant does not state when this claim was received

(unlike the other claims), and because the dates on the

“RECEIVED” stamps are illegible, the court will refer to this

claim with this date, which is the way the parties refer to it

and is the date on what appears to be the cover letter for the

claim. In any event, the exact date of this claim is not at

issue.

5 Although BOP rejected the May 15, 2018 claim as incomplete for

failure to specify the dates of the alleged injuries, under

Fourth Circuit precedent, discussed below, this claim would

likely amount to sufficient presentment. Plaintiff was not

required to use the Standard Form 95, nor was she necessarily

required to specify dates as long as she provided the agency

with sufficient information to investigate. The May 15 claim

specified that she was injured while she was incarcerated at FPC

Alderson, and she was incarcerated there for only a few years.

Given the facts of this case, it is highly unlikely that BOP

needed specific dates in order to investigate the allegations in

the claim.

duplicative when it is the “functional equivalent” of the

original claim. See id. at 42. “There is scant case law

evaluating whether a successive administrative claim is the

functional equivalent of the first.” Spinazzola v. United

States, No. 19-CV-165-GKF-FHM, 2019 WL 6050723, at *5 (N.D.

Okla. Nov. 15, 2019). In Spinazzola, the court decided whether

a claim was duplicative by reference to the law of presentment

sufficiency. Id. at *5-6. Presentment is the process of

submitting a claim as required under § 2401 and is a

jurisdictional prerequisite. See Ahmed v. United States, 30

F.3d 514, 516 (4th Cir. 1994). Unless a claim has been

sufficiently presented to the appropriate administrative agency,

a federal court has no jurisdiction over a case based upon such

a claim. Id. at 518. Stated differently, presentment is

necessary to exhaust a claimant’s administrative remedies, and

failure to exhaust those remedies requires dismissal. See

Thaxton-Tensley v. United States, No. GJH-19-1019, 2020 WL

2794594, at *4 (D. Md. May 29, 2020).

The plaintiff in Spinazzola filed a claim alleging medical

negligence and then (over a year later) filed a second claim

alleging negligent hiring and supervision, all relating to the

same injury. 2019 WL 6050723, at *3. The court determined that

because the first claim did not adequately put the government on

notice about the negligent hiring and supervision claims, the

first claim was not duplicative of those claims and did not

stand in their way. See id. at *6. The court rejected the

government’s argument that claims being “factually related” or

“intertwined” was enough to make the claims functionally

equivalent. See id. The court did not require that the second

claims be “unrelated” to be non-duplicative. See id.

The parties appear to agree that if the November 1, 2019

claim was duplicative of the earlier one, then it does not reset

the six-month clock. They also appear to agree that a

duplicative claim may be described as one that is the

“functional equivalent” of a former claim. But that is where

the agreement ends. The parties advance different general

definitions of what it means for a claim to be the functional

equivalent of another one, and disagree on whether the November

1, 2019 claim was the functional equivalent of the earlier ones.

Neither party offers a definition of a duplicative claim

anchored on binding case law.

Defendant’s definition of a duplicative claim is

essentially any claim filed after the first one unless there are

intervening developments in the facts of the claim. Defendant

appears to draw on the law of claim preclusion to suggest that

claimants must get it right the first time around or forfeit

whatever portions of their claim they may have omitted that are

based on the same set of facts. The statute does not require

such a strict reading.

Plaintiff, however, goes too far the other way. Under her

definition, any claim that sufficiently elaborates on the

original claim is enough to reset the clock not only for the

“new” injuries, but for all injuries. Such a system would make

it too easy to revive an expired claim, rendering the six-month

rule a nullity, and defeating its purpose, which is to protect

the government from stale claims by “requir[ing] the reasonably

diligent presentation of tort claims against the government.”

See Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1266

(10th Cir. 2002); see also Dunn v. U.S. Dep’t of Veterans

Affairs, No. 3:18CV699, 2020 WL 4720044, at *4 (E.D. Va. Aug.

13, 2020) (quoting Order of R.R. Telegraphers v. Ry. Express

Agency, 321 U.S. 342, 348–49 (1944)) (“Statutes of limitations

‘are designed to promote justice by preventing surprises through

the revival of claims that have been allowed to slumber until

evidence has been lost, memories have faded, and witnesses have

disappeared.’”).

In applying § 2401(b), the goal is to use an “approach

[that] holds the balance steady and true between an FTCA

plaintiff’s right to redress and the government’s legitimate

interest in defeating stale claims.” Cf. Donahue v. United

States, 634 F.3d 615, 624 (1st Cir. 2011). In the absence of

binding authority describing when an FTCA claim is duplicative,

the Spinazzola court’s analysis is a good model for achieving

such balance. Accordingly, if plaintiff’s original claim

sufficiently presented the injuries described in the second

claim, then the second claim is duplicative. The question,

then, is whether the first claim amounted to sufficient

presentment.

While Spinazzola provides the analytical framework, this

court applies the presentment law of the Fourth Circuit to that

framework. Presentment of an FTCA claim in this circuit

requires (1) notice sufficient “to enable the agency to

investigate” and (2) a demand for a sum certain. See Ahmed, 30

F.3d at 516–17. Only the first prong of this test is at issue

here, which the Fourth Circuit has not had occasion to discuss

at length. In Spinazzola, the court applied Eleventh Circuit

law, which had similarly described sufficient presentment as

consisting of “(1) a written statement describing the injury in

sufficient detail to allow the agency to begin an investigation

into the possibility of potentially tortious conduct, and (2) a

request for a sum certain in damages.” Lopez v. United States,

823 F.3d 970, 976 (10th Cir. 2016). “[T]he ‘claim’ asserted

‘encompasses any cause of action fairly implicit in the facts.’”

Id. (quoting Murrey v. United States, 73 F.3d 1448, 1452 (7th

Cir. 1996)).

The claimant in Lopez filed a claim describing medical

malpractice and later sued for medical malpractice. 823 F.3d at

972-73. He then sought and was granted leave to amend his

complaint and add a claim for negligent credentialing and

privileging. Id. at 973. In concluding that the district court

erred in granting leave to add this claim because it was not

sufficiently presented (and therefore the district court lacked

jurisdiction), the court explained,

Nothing in Lopez’s administrative claim provided the

government with notice that it needed to investigate

whether the VA Hospital was negligent in credentialing

and privileging [Dr.] Kindt, and it was in turn

deprived of any opportunity to settle this potential

claim without litigation. Consequently, we conclude

that Lopez’s administrative claim did not reasonably

encompass his negligent credentialing and privileging

claim.

Id. at 977. The court further explained that “nothing in

Lopez’s administrative claim would have caused the government to

investigate whether Kindt was properly credentialed.” Id.

Accordingly, the government was denied “an opportunity to

investigate, and a chance to settle the claim prior to

litigation.” Id.

Here, plaintiff’s May 2, 2018 letter to the BOP stated

that, “[w]hile housed at the federal prison camp in Alderson,

West Virginia,” prison employees “repeatedly raped, tortured,

harassed, discriminated against [her] due to her religion, and

terrorized” her. (ECF No. 34-1, at 17.) She also alleged

negligence on the part of BOP employees for allowing this to

happen to her. The BOP denied this claim as insufficient for

failure to specify the dates of the alleged events. She then

submitted a Form 95 alleging as follows:

Jerrod Grimes, a correctional officer and captain with

the Federal Bureau of Prisons (BOP), while on duty and

acting in the course of his employment supervising

inmates and superior for fellow correctional officers,

staff, and medical personnel, throughout 2016 and

2017, repeatedly raped, tortured, harassed, and

discriminated against Paulette Gabbidon, in part, but

not exclusively, on the basis of her religion while

Ms. Gabbidon was housed as a federal inmate at the

Federal Prison Camp Alderson. (See attached additional

pages.)

Id. at 24. The facts alleged here were more concrete because

they identified the perpetrator of the alleged injuries, but

also narrower in that there is no explicit allegation that other

BOP officials failed to protect her.6 These allegations, as

succinct as they may be, presented the government with

sufficient information to investigate most of the claims in

plaintiff’s first amended complaint. In the simple allegation

that a prison official raped an inmate, a litany of causes of

action are fairly implicit, and especially considering that

there was a related criminal investigation, BOP cannot

reasonably claim that it did not have enough information to give

6 Despite the reference to “attached additional pages,” no

additional pages are provided in either plaintiff’s or

defendant’s exhibits, so at least for purposes of this motion,

the court will assume that they do not exist.

it an opportunity to settle this matter without litigation. The

Fourth Circuit has not adopted an interpretation of the

presentment requirement that requires drawing fine distinctions

as to what is a fair inference and what is not, so neither will

this court. As another court in this circuit has described the

presentment rule, “Put simply, notice is sufficient if it

enables the agency to investigate the claim.” Weston v. United

States, No. 1:15CV84, 2015 WL 5511133, at *5 (M.D.N.C. Sept. 17,

2015). BOP had sufficient information to investigate the claims

that do not relate to forced labor, so those claims were

adequately presented. Therefore, plaintiff’s November 1, 2019

claim was duplicative as to those claims, and it did not reset

the clock as to those claims. As to the claims involving forced

labor, the November 1, 2019 claim was not duplicative, and

plaintiff timely filed suit on them after the government denied

the November 1, 2019 claim.

b. Equitable Tolling is Appropriate

“The FTCA six-month limitations period is a non-

jurisdictional, claim processing rule subject to equitable

tolling.” Ramirez v. United States, 410 F. Supp. 3d 824, 832

(S.D. Tex. 2019) (citing U.S. v. Kwai Fun Wong, 575 U.S. 402,

135 S. Ct. 1625, 1633 (2015)). Recently, the Fourth Circuit

provided a thoughtful discussion of the “‘subtle and difficult’

differences between the various equitable doctrines that

potentially afford plaintiffs relief from a limitations period.”

Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 548 (4th Cir. 2019)

(quoting Klehr v. A.O. Smith Corp., 521 U.S. 179, 192)). These

doctrines are (1) fraudulent concealment, (2) equitable

estoppel, and (3) equitable tolling. Id. at 549. The first two

involve misconduct by the party invoking the statute of

limitations, while the third does not necessarily involve such

misconduct. See id. at 549. Only the second two – equitable

estoppel and equitable tolling – are at issue here.

“Equitable estoppel applies where . . . the defendant

engages in intentional misconduct to cause the plaintiff to miss

the filing deadline.” English v. Pabst Brewing Co., 828 F.2d

1047, 1049 (4th Cir. 1987). The key distinction between

equitable estoppel and fraudulent concealment is that “[t]he

plaintiff’s failure to timely file his claim derives not from

his ignorance of the cause of action, but rather from conduct

taken by the defendant to induce the plaintiff not to timely

file his claim.” Edmonson, 922 F.3d at 549.

As for equitable tolling, there are two elements: (1)

diligent pursuit of the claim and (2) “extraordinary

circumstances” impeding the claimant’s timely filing the claim.

Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct.

750, 755 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649

(2010)). “The doctrine of equitable tolling is to be applied

‘sparingly.’” Dunn, 2020 WL 4720044, at *4 (citing Irwin v.

Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). It should

be applied only to avoid an unconscionable application of a

statute of limitations that would result in gross injustice.

See Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).

The extraordinary circumstances necessary to invoke equitable

tolling must be “beyond the control of” and “external to” the

conduct of the party invoking the doctrine. Id. Equitable

tolling does not apply to “garden variety claim[s] of excusable

neglect.” See Irwin, 498 U.S. at 96. “Equitable tolling does

not require any misconduct on the part of the defendant.” Casey

v. United States, 161 F. Supp. 2d 86, 95 (D. Conn. 2001) (citing

Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991)). The

Fourth Circuit has explained that equitable tolling “does not

lend itself to bight-line rules,” id., and that courts should

decide whether it applies on a “case-by-case basis.” Nguyen v.

Inova Alexandria Hosp., No. 98-cv-2215, 1999 WL 556446, at *3

(4th Cir. July 30, 1999).

The Fourth Circuit has held that equitable tolling would be

appropriate if a plaintiff could prove that “the defendants

confiscated her passport, isolated her from other people,

monitored her communications, and threatened that she would be

imprisoned and deported if she tried to escape.” Cruz v. Maypa,

773 F.3d 138, 146 (4th Cir. 2014).7 In the same case, the court

extended its holding in Vance v. Whirlpool Corp., 716 F.2d 1010

(4th Cir.1983), to hold that the failure to post a notice of

worker’s rights under the Fair Labor Standards Act constituted

extraordinary circumstances that would make equitable tolling

appropriate. Id. at 146-47.

In Casey, the Veteran’s Administration’s failure to provide

the plaintiff with an SF 95 form, in breach of a regulation

requiring it to do so, was grounds for equitable tolling. 161

F. Supp. 2d at 95-96.

Though only persuasive authority, a case from the Southern

District of New York also involving the prison context is highly

instructive. There, a prisoner at Sing Sing Correctional

Facility alleged that prison officials mistreated him,

including by filing false misbehavior reports against him, for

which he was punished with loss of privileges, loss of good

time, and placement in the special housing unit for 30 months.

Davis v. Jackson, No. 15-CV-5359 (KMK), 2016 WL 5720811, at *1-2

(S.D.N.Y. Sept. 30, 2016). The defendants argued that the

plaintiff’s claims were time-barred. See id. at *5. The

7 Although the court used the term “equitable tolling,” because

this case was pre-Edmonson, and because the court was working

from a framework that collapsed the equitable tolling and

equitable estoppel analyses, it is not entirely clear whether

the court’s holding is that these acts would call for equitable

tolling, equitable estoppel, or both.

plaintiff argued that equitable tolling should apply because

fear of retaliation prevented the timely filing of his claims.

See id. at *8. After a thorough analysis, the court found that

the plaintiff had alleged facts that, if proven, would be

sufficient grounds for equitable tolling. Id. at *8-12. In its

analysis, the court noted that (1) equitable tolling is

available only in “rare and exceptional circumstances”; (2) the

case law suggesting that fear of retaliation is not grounds for

equitable tolling dealt with “the Title VII employment or the

ADA context,” where, unlike “in the context of an inmate's

§ 1983 suit,” fear of retaliation should generally increase

claimants’ incentives to sue “by giving [them] a second claim”

to litigate; (3) “[g]eneralized allegations of fear of

retaliation” (as opposed to “specific facts”) are insufficient;

and (4) “fear of retaliation is, at least as a theoretical

matter, an impediment that is within a plaintiff’s control.”

Id. In holding that equitable tolling nonetheless ought to

apply, the court explained that inmate-plaintiffs are “situated

much differently” from other plaintiffs because of the level of

control exercised over prisoners lives and the psychological

consequences that are likely to go along with that level of

control. See id. at 10. The court explained further:

Given this unique context and the substantial control

that correction officers exert over inmates, the

specter of retaliation, a real and ever-present force

in an inmate’s life, can reasonably be said to be

outside of an inmate-plaintiff’s control. Thus, the

Court concludes that in the prison context, reasonable

fear of retaliation may be sufficient to constitute

extraordinary circumstances warranting equitable

tolling, particularly if the person threatening

retaliation is a defendant or another official who

could be or was influenced by a defendant.

Id. at *11 (emphasis added). The specific facts that the

plaintiff alleged, including threats by officers not to pursue

grievances,8 amounted to extraordinary circumstances meriting

equitable tolling. Id.

Here, plaintiff alleges facts (and provides evidence to

support those facts) that touch upon elements of both equitable

estoppel and equitable tolling because the extraordinary

circumstances were due, at least in part, to the actions of

defendant and a government official. Less than six months after

BOP denied her claim, her attorney, Ms. Feller, engaged in

settlement discussions and orally asked BOP to reconsider the

claim with a revised demand amount. The BOP attorney, Ms. Lee,

said that she would get back to Ms. Feller. Ms. Lee later

rejected the revised demand amount and, in response to Ms.

Feller’s request, said that a letter would be issued to that

effect. While Ms. Feller’s request for reconsideration did not

8 The plaintiff alleged that officers told him, “I hope your

[sic] not gonna write me up for this because I know about you,”

“[Do not] be writing a bunch of shit up around here,” and “[Y]ou

know weapons can be found in your cell.” Id.

have the effect of tolling the six-month window because it was

not in writing,9 Ms. Lee’s statement that a written rejection

would be forthcoming may have induced plaintiff to delay filing

a complaint.

Further, Grimes threatened plaintiff in an effort to ensure

her silence, which included gathering data on her family and

stating that he could affect her immigration status. Although

those threats ultimately did not stop plaintiff from hiring an

attorney, that does not mean the threats did not continue to

affect her.

Plaintiff’s assistance in the criminal case against Grimes

and her pursuit of her own civil case coincided with a transfer

to FMC Lexington much earlier than expected, with her legal mail

being lost, and with a flurry of what would appear to be unusual

activity in regards to plaintiff’s immigration status.

Plaintiff was also designated a “behind the fence” prisoner.

When the Southern District of New York commuted plaintiff’s

sentence and she was about to be released, a prison official

called ICE and demanded that she be picked up before she was

released. She was then transferred to another institution.

9 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. 28

C.F.R. § 14.9 (emphasis added).

While there, the ICE agent assigned to her case, Agent Young,

warned plaintiff to stop pursuing her civil case immediately.

Specifically, he told plaintiff that she “needed to call [her]

attorney right away and tell her to stop whatever it is that

she’s filing.” (ECF No. 42, Ex. F, at 11.) He told plaintiff

to do this “because they [were] watching [her] and call every

day.” (Id.) Plaintiff immediately did as instructed. She

called Ms. Feller and told her to stop all work on the case

until plaintiff’s immigration issues were no longer pending.10

In what at first appears to be a similar case from the

Northern District of Indiana, the court found the plaintiff’s

fear over the potential effect that his pursuit of an FTCA claim

may have on his immigration proceedings was insufficient to

merit equitable tolling. See Mufti v. Lynch, 190 F. Supp. 3d

827, 832 (N.D. Ind. 2016). But there are key differences

distinguishing that case from this one. First, the court there

appeared to rely heavily on the plaintiff’s inability to satisfy

the first prong of equitable tolling (diligent pursuit of the

claim). Second, the plaintiff there was not incarcerated,

10 Plaintiff alleges, and provides evidence to support, other

facts that bolster her argument for equitable estoppel or

equitable tolling, but the court omits them from this opinion

because it finds these facts sufficient.

which, for the well-articulated reasons in Davis (discussed

above), makes a big difference.11

IV. Conclusion

Plaintiff presents two arguments in response defendant’s

motion. The first argument – that the November 1, 2019 claim

was not duplicative – saves only some of plaintiff’s claims:

specifically, those related to forced labor. This is because

the earlier claims did not adequately present the facts forming

the basis for plaintiff’s forced-labor claims to the government.

The second argument – that plaintiff is entitled to

equitable relief from the six-month rule – saves all of

plaintiff’s claims, at least at this juncture. If defendant

proves at trial that the facts upon which plaintiff bases her

argument (such as that an ICE agent told her to stop pursuing

her case) are not true, then the six-month rule may bar the

claims that plaintiff’s first argument fails to save: all those

related to the alleged sexual abuse.

11 The court also finds persuasive the D.C. Circuit’s skepticism

toward the idea that fear of retaliation is insufficient to

justify equitable relief from a statute of limitations as a

matter of law. See Chung v. U.S. Dep’t of Justice, 333 F.3d

273, 279 (D.C. Cir. 2003). There, the court held that an

objectively reasonable fear that a lawsuit would jeopardize a

request for leniency would merit equitable tolling. Id.

For the reasons expressed above, defendant’s motion to

dismiss or, alternatively, for summary judgment (ECF No. 34) is

DENIED.

The Clerk is directed to send copies of this Memorandum

Opinion and Order to all counsel of record.

IT IS SO ORDERED this 17th day of February, 2021.

ENTER:

David A. Faber

Senior United States District Judge

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