Petition for Writ of Certiorari — Piper Lakay Ellis Snowton, Petitioner v. United States, et al.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appears

Fifth Circuit

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No. 19-10547

Summary Calendar

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PIPER LAKAY ELLIS SNOWTON,

FILED

November6,2019

Lyle W. Cayce

Clerk

Plaintiff - Appellant

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VETERANSAFFAIRSOKM5TOTwnt^ STATES DEPARTMENT OF

DEPARTMENTS™! secretary, U.S.

Defendants - Appellees

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Appeal from the United States District Court

tor the Northern District of Texas

USDC No. 3:18-CV-2900

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

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This court must examine th

e basis of its jurisdiction, on its own motion,

necessary, mil v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000)

28 usa § 2io7<a) ana “ ** **«*««*. ft—™

4(a)(1)(A), the notrce of appeal in a civil case must be filed within thirty day

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* Pursuant to 5TH ClR. R. 47 5

exc!ot SSf *5? drter“fed that this

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should not

CmPR 4t5d4a°d ,S n0‘ Pre“dCnt ‘ P under the limited circumstances set forth in 5th

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No. 19-10547

of entry of judgment.” Renfro v. Bingham, No. 18-40135, 2018 WL 3868749, at

*1 (5th Cir. May 30, 2018) (per curiam). “[T]he timely filing 0f

a notice of

appeal in a civil case is a jurisdictional requirement ” Bowles v. Russell, 551

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U.S. 205, 214 (2007).

In this Federal Tort Claims Act case, the district court entered a final

judgment dismissing the complaint on November 27,

2018. The pro se plaintiff

thus had until December 27, 2018 to file a timely notice of appeal. The plaintiff

did not file a notice of appeal within the thirty-day period,

Instead, in a motion

dated April 19, 2019, the plaintiff requested "an extension of the deadline for

filing an appeal.1 The district court construed the motion as both

extension of time and notice of appeal.

a motion for

Under Federal Rule of Appellate

1”

Procedure 4(a)(5), a district court may extend the deadline to file

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a notice of

appeal if the plaintiff shows “excusable neglect or good cause.” Fed. R. App. P.

4(a)(5)(A). As the district court noted, this deadline

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may not be extended,

however, unless the motion for extension of time

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was filed within thirty days

of the expiration of the time to appeal. Fed. R. App. P. 4(a)(5)(A)(i). Because

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the period for filing a notice of appeal expired on December 27, 2018, the

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plaintiffs motion requesting an extension was due by Monday, January 28,

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2019. See Fed. R. App. P. 26(a)(1). The April 19 motion and notice of appeal

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were therefore untimely.

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As the plaintiff failed to file a timely notice of appeal, we do not have

jurisdiction.

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See In re MDL 262, 799 F.2d 1076, 1078 (5th Cir. 1986)

(“Compliance with [Rule 4(a)(5)’s]

requirements] is essential to confer

appellate jurisdiction.”). Accordingly, this appeal is:

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DISMISSED.

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uatU Arra^Oi?8

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» was not docketed by the district court

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PIPER LAEAY ELLIS SNOWTON,

Plaintiff,

V.

UNITED STATES OF AMERICA, ET.

AL.,

Defendants.

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No. 3:18-cv-29Q0-S-BN

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The United States Magistrate Judge made findings, conclusions, and a

recommendation in this case. No objections were filed. The District Court reviewed

the proposed findings, conclusions, and recommendation for plain error. Finding

none, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the

United States Magistrate Judge.

The Court DISMISSES Plaintiff Piper Lakaj? Ellis Snowton’s complaint with

prejudice.

SO ORDERED this^uHiay o

2018

KAREN GREN SCHOLER

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PIPER LAKAY ELLIS SNOWTON,

Plaintiff,

V.

UNITED STATES OF AMERICA, ET.

AL.,

Defendants.

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No. 3:18-CV-2900-S-BN

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Piper Lakay Ellis Snowton brings this pro se action under the Federal

Tort Claims Act (“FTCA”). Her action has been referred to the undersigned United

States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a

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standing order of reference from United States District Judge Karen Gren Scholer.

The Court has granted Ms. Snowton leave to proceed in forma pauperis (“IFP”).

And, because the face of her complaint reveals that the claims she asserts are likely

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time-barred, the undersigned enters these findings of fact, conclusions of law, and

recommendation that the Court should dismiss the complaint without prejudice to Ms.

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Snowton s filing, within a reasonable amount of time, an amended complaint against

the United States alone that includes a factually plausible claim of equitable tolling.

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Applicable Background

Through an administrative tort claim made in May 2018, Ms. Snowton appears

to bring negligence claims against the United States and other federal defendants

related to medical care she received through the Department of Veterans Affairs (the

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“VA”) in 1985. See Diet. No. 3 at 1-3. She appears to recognize that this suit may be

time-barred by referencing equitable tolling on the first page of her complaint. See id.

at 1. And. indeed., other letters made part of her complaint reflect that she was

consulting attorneys regarding medical negligence claims (presumably the subject of

this suit) more than 7 years ago. See id. at 7-8.

Legal Standards and Analysis

A district cc

dismiss that a

t is required to screen a civil action filed IFP and may summarily

he Court, for example, concludes that the action “is frivolous or

malicious/* 25 U.5.C. f lS15fe)(2)(B)(I).

If"':: is tiear

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the face of a complaint... that the claims asserted are barred

by the applicable statute of limitations, those claims are properly dismissed' as

frivolous." *C,sr~. : 1 if Penitentiary Leavenworth, 450 F. App’x 397, 399 (5th Cir.

2011) (per curcarr

~s Cartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993)); see

alsoMeriive:h€~: ABC _ -aining/Safety Council Tex. Gulf Coast Chapter, No. 3:15-cv862-N-BE. 21 If *31

defense of

1 ”26. at *2 (N.D. Tex. Oct. 24, 2016) (“Courts ‘may raise the

:u= tutus rua spontep and, “‘where it is clear from the face of a complaint

filed in for^i.z pez~p*~n£ that the claims asserted are barred by the applicable statute

of limitation. those hatsts are properly dismissed’ under 28 U.S.C. § 1915(e)(2)(B).”

(citations and tradcats -united)), rec. accepted, 2016 WL 871279 (N.D. Tex. Nov. 18,

2016).

Medsrsi tcaiuractao? :r negligence claims against the VA, a federal agency, or

employees :c unit igstsry under the FTCA “may be brought against only the United

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States, ar£ r

fss or employees of the United States.” Esquivel-Solis v.

United Stzlxs,

: - Arp's 338. 340 (5th Cir. 2012) (per curiam) (citing 28 U.S.C. §§

2671, 2S7c:. -T

- * -SiM, 860 F.2d 181, 183 (5th Cir. 1988)). “[A]n FTCA d«im

brought ag^ziz s

agency or employee rather than the United States shall be

dismissed ftr ttt

diction.” Id. (citations omitted); see also Galvin, 860 F.2d at

183 C[A

a§aiast a federal agency or employees as opposed to the United

States itself rtrst re £i

F.3d 5S5. .

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issed for want ofjurisdiction.”); Nicosia v. Secy ofArmy, 220

£-^898, at *1 (5th Cir. June 13, 2000) (per curiam) (failure to

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“name the United States as a defendant.. . is fatal to FTCA jurisdiction”).

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While —s- inewton has named the United States as a defendant, her FTCA

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claims a gains, me ether named defendants should be dismissed. But that does not

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mean that an

A action against the United States should proceed as currently

presented, as it appears that such an action is likely barred under the applicable

statute of limitations.

Under 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

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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)). Ms. Snowton alleges no facts to

rebut that her claim accrued in 1985, yet she did not present that claim to the VA until

more than 30 years later.

The statute of limitations, however, is “non-jurisdictional and subject to

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equitable tolling.” Wong, 135 S. Ct. at 1638. Even so, “a litigant is entitled to equitable

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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

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ofWis. u. United States, 136 S. Ct. 750, 755 (2016) (quoting Holland u. 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

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unavoidable even with diligence.” (citation omitted)).

Importantly, “the second prong of the equitable tolling test is met only where the

circumstances that caused a litigant’s delay are both extraordinary and beyond its

control.” Menominee Indian Tribe, 136 S. Ct. at 756 (emphasis in original); see, e.g.,

Farmer v. D&O Contractors, 640 F. App’x 302, 307 (5th Cir. 2016) (per curiam)

(holding that because “the FBI did not actually prevent Farmer or any other Plaintiff

from filing suit” but instead “advised Farmer that filing suit would have been against

the FBI’s interest” and “that the RICO claims could be filed after the investigation

concluded,” “[a]ny obstacle to suit was... the product of Farmer’s mistaken reliance on

the FBI, and a party’s mistaken belief is not an extraordinary circumstance” (citing

Menominee Indian Tribe, 136 S. Ct. at 756-57)).

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While, in her complaint, Ms. Snowton states the legal conclusion that she is

entitled to equitable tolling, and offers in support of that legal conclusion, other

conclusions of law, see, e.g., Dkt. No. 3 at 1 (alleging fraudulent concealment), a

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plaintiff must “allege specific facts” to support all prongs of “a plausible equitable

tolling claim.” Taggart v. Norwest Mortg., Inc., Civ. A. No. 09-1281, 2010 WL 114946,

at *3 (E.D. Pa. Jan. 11, 2010); see Chandra v. Bowhead Sci. & Tech., LLC, No. 3:16-cv375-B, 2018 WL 1252097, at *4 (N.D. Tex. Mar. 12, 2018) (“[CJourts ‘still require pro

se parties to fundamentally “abide by the rules that govern the federal courts.’” So pro

se ‘litigants must properly plead sufficient facts that, when liberally construed, state

a plausible claim to relief,... and brief arguments on appeal.’ Chandra’s pleadings fall

short of that goal by failing to allege any plausible facts entitling him to equitable

tolling.” (quoting EEOC v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014))); 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 this lawsuit, a claim of equitable tolling would

seemingly be implausible and thus frivolous.” (citation omitted)), rec. adopted, 2018 WL

1832419 (M.D. Fla. Mar. 14, 2018).

But, given Ms. Snowton’s pro se status, and out of an abundance of caution,

while her complaint should be dismissed as untimely and therefore frivolous, the Court

should grant her leave to file an amended complaint against the United States alone

that includes a factually plausible claim for equitable tolling.

Recommendation

The Court should dismiss the complaint without prejudice to Ms. Snowton’s

filing, within a reasonable amount of time, an amended complaint against the United

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States alone that includes a factually plausible claim of equitable tolling.

A copy of these findings, conclusions, and recommendation shall be served on all

parties in the manner provided by law. Any party who objects to any part of these

findings, conclusions, and recommendation must file specific written objections within

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. ClV. P. 72(b).

In order to be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and

specify the place in the magistrate judge’s findings, conclusions, and recommendation

where the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure

to file specific written objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge that are accepted or

adopted by the district court, except upon grounds of plain error. See Douglass v.

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: November 2, 2018

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10547

PIPER LAKAY ELLIS SNOWTON,

Plaintiff - Appellant

v.

^™™S“rt:SEeD STATES ™™ENT OF

DEPARTMENT OF VETERANS AFFAIRS, SECRETARY, U.S.

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR RPHRARmn

Before JOLLY, JONES, and SOUTHWICK, Circuit Jud

PER CURIAM:

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ges.

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IT IS ORDERED that the petition for rehearing is

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ENTERED FOR THE COURTS

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UNITED STATES CIRCUIT JUDGE ■