     Case: 12-60326     Document: 00512027863         Page: 1     Date Filed: 10/22/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 22, 2012

                                     No. 12-60326                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ANDREA DUPREE,

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10-CV-537


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Andrea Dupree sued the Central Mississippi Medical
Center (“CMMC”) for medical malpractice in the Circuit Court of the First
Judicial District of Hinds County, Mississippi. After certifying that the doctor
was a federal employee, the Government removed the action to federal district
court and substituted the United States as the defendant. The district court
granted the government’s motion to dismiss, finding that the plaintiff’s action


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-60326

was untimely and that the statute of limitations should not be equitably tolled.
We AFFIRM.
                        FACTS AND PROCEEDINGS
      Andrea Dupree underwent a total abdominal hysterectomy/bilateral
salpingo-oophorectomy at CMMC on or about March 17, 2008. Dupree alleged
that Dr. Natasha Hardeman and other defendants breached the requisite
standard of care during operation. She alleges that as a result of mistakes made
during surgery, her left lung collapsed and she became hypoxemic, hypotensive,
and tachycardiac, and that she required a second surgery to stop internal
bleeding. She brought suit against Hardeman, several other medical care
providers who were present during her surgery, and CMMC.
      In Mississippi, plaintiffs who bring a negligence claim against a health
care provider are required to provide the defendant with written notice at least
60 days prior to filing suit. § 15-1-36(15); Fowler v. White, 85 So. 3d 287, 290-91
(Miss. 2012). If notice is served within the 60 days prior to the end of the statute-
of-limitations period, the period is extended 60 days from the service of the
notice. See § 15-1-36(15); Fowler, 85 So. 3d at 290-91. Five days prior to the end
of Mississippi’s two-year statute of limitations period for medical malpractice
claims, Dupree provided notice of her claim to the defendants. Thereafter, on
May 12, 2010, Dupree filed her medical malpractice suit in state court.
      On September 27, 2010, the U.S. Attorney certified that Hardeman
qualified as a federal employee because her employee, the Central Mississippi
Civic Improvement Association, Inc., d/b/a/ Jackson-Hinds Comprehensive
Health, was a federal grantee under the Federally Supported Health Centers
Assistance Act of 1992. Therefore, pursuant to the Federal Torts Claim Act
(“FTCA”), 28 U.S.C.§ 2679(d)(2), the Government removed the action to district




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                                       No. 12-60326

court and substituted the United States as the proper party defendant with
respect to Dupree’s claims against Hardeman.1
       On November 15, 2010, the Government filed a motion to dismiss,
claiming that under the FTCA, Dupree’s claim was time-barred because Dupree
had not first filed an administrative claim with the U.S. Department of Health
and Human Services (HHS) and the two-year period for filing the requisite
administrative claim had lapsed. See 28 U.S.C. 2675(a); 28 U.S.C. 2401(b).
Dupree contended that the FTCA statute of limitations should have been
equitably tolled. The district court granted the Government’s motion and
dismissed the case. Dupree now appeals.
                                     DISCUSSION
                                             A.
       We review a district court’s grant of a motion to dismiss de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff.” Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219
(5th Cir. 2012). We review the district court’s application of equitable tolling for
abuse of discretion. Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 457 (5th Cir.
2011). “A trial court abuses its discretion when it bases its decision on an
erroneous view of the law or a clearly erroneous assessment of the evidence.” Id.
(quoting United States v. Caldwell, 586 F.3d 338, 341 (5th Cir. 2009)). The
plaintiff bears the burden of showing a factual basis to toll the statute of
limitations period. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
                                             B.
       The FTCA waives the United States government’s sovereign immunity for
claims arising out of torts committed by federal employees. Ali v. Fed. Bureau


       1
          Dupree does not appeal the certification of Hardeman as a federal employee, the
substitution of the United States as the proper party defendant, or the removal of the case to
district court.

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                                  No. 12-60326

of Prisons, 552 U.S. 214, 217-18 (2008). It provides that a suit against the United
States is the exclusive remedy for injuries “arising or resulting from the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment.” 28 U.S.C § 2679(b)(1)
(2006). The FTCA requires that a plaintiff first exhaust her administrative
remedies before commencing an action against the United States. See id. §
2675(a). To exhaust her administrative remedies, a plaintiff must present her
claim to the appropriate federal agency within two years of the claim’s accrual,
otherwise the claim is “forever barred.” 28 U.S.C. § 2401(b). If a claim is removed
from state court and then dismissed for failure to exhaust administrative
remedies, the claim is deemed to be timely presented and the plaintiff may
recommence her suit if she presents the claim to the appropriate federal agency
within 60 days of dismissal, and if “the claim would have been timely had it been
filed on the date the underlying civil action was commenced.” 28 U.S.C.
2679(d)(5).
      In medical malpractice suits, the claim accrues and the statute of
limitations begins to run when “the patient discovers or in the exercise of
reasonable diligence should discover his injury and its cause.” MacMillan v.
United States, 46 F.3d 377, 381 (5th Cir. 1995) (quotation marks and citation
omitted). Dupree’s claim accrued on the date of the alleged negligence, March 17-
18, 2008. She filed suit in state court on May 12, 2010, more than two years
after her claim accrued. Therefore, she was not entitled to recommence her case.
See 28 U.S.C. § 2679(d)(5)(A).
      Dupree argues on appeal that the FTCA limitations period should be
equitably tolled. The FTCA’s two-year statute of limitations is jurisdictional and
therefore not subject to equitable tolling. See In re FEMA Trailer Formaldehyde
Prods. Liability Litig., 646 F.3d 185, 190-91 (5th Cir. 2001) (“Because the FTCA
waives the Government's immunity, in construing the FTCA's statute of

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                                 No. 12-60326

limitations, we will ‘not take it upon [ourselves] to extend the waiver beyond
that which Congress intended.’ . . . Alexander’s claim should not be equitably
tolled.” (quoting United States v. Kubrick, 444 U.S. 111, 118 (1979)).
Furthermore, Dupree has not established that she meets any of the bases for
equitable tolling. See Manning v. Chevron Chemical Co., LLC, 332 F.3d 874, 880
(5th Cir. 2003). The suit was not pending in the wrong forum; the defendant did
not intentionally conceal facts that would support Dupree’s claim; and Dupree
was not misled about her rights. Id. Dupree also has not shown that she
exercised due diligence in pursuing her rights. See Wilson v. Dept. of Veterans
Affairs, 65 F.3d 402, 404-05 (5th Cir. 1995). She did not take any steps to
determine if the health clinic and Hardeman were federal employees for the
purpose of the FTCA. Equitable tolling should be applied “sparingly,” National
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), and Dupree has not
demonstrated that it would be justified in the present case. Therefore, equitable
tolling cannot be used to extend the FTCA two-year limitations period.
                                CONCLUSION
      For these reasons, we AFFIRM the federal district court’s June 30, 2011
order dismissing the plaintiff’s claims.




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