                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        September 28, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
GORDON C. REID,

      Plaintiff - Appellant,
                                                            No. 14-6206
v.                                                  (D.C. No. 5:12-CV-01416-M)
                                                           (W.D. Okla.)
UNITED STATES OF AMERICA,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
                 _________________________________

                                 I. BACKGROUND

      Federal prisoner Gordon C. Reid appeals from the dismissal of his complaint

against the United States under the Federal Tort Claims Act (FTCA) for damages he

allegedly sustained from another prisoner assaulting him on September 22, 2010.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

      The complaint alleged the United States was negligent in failing to prevent the

assaults. The district court, adopting the magistrate judge’s recommendation, dismissed

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction. It determined the complaint was untimely under 28 U.S.C. § 2401(b), which

provides that an FTCA claim is “forever barred unless it is presented in writing to the

appropriate Federal agency within two years after such claim accrues.”

       Mr. Reid filed his administrative tort claim with the Bureau of Prisons (“BOP”) on

November 19, 2012. He admitted in district court that he did so after the statutory two-

year deadline, but he argued the deadline should be equitably tolled. The court

determined Mr. Reid’s lack of diligence precluded equitable tolling. It also rejected his

related argument for equitable estoppel.

       We note the Supreme Court’s recent decision in United States v. Kwai Fun Wong,

135 S.Ct. 1625 (2015), holding that § 2401(b)’s time limits are nonjurisdictional and

therefore subject to equitable tolling. The district court’s decision preceded Kwai Fun

Wong. It adopted the magistrate judge’s Report and Recommendation, which assumed

that equitable tolling and equitable estoppel applied, analyzed those issues, and found that

Mr. Reid had failed to present sufficient evidence to justify equitable relief from §

2401(b).1

                                    II. DISCUSSION

       In light of Kwai Fun Wong, the timeliness of Mr. Reid’s administrative tort claim

under § 2401 is a nonjurisdictional issue, enabling him to seek equitable relief. He

attempted to do so in the district court, where both parties submitted evidence on this

       1
        On August 24, 2015, Mr. Reid moved for an extension of time to file a reply
brief. On August 26, 2015, we granted the motion. As of the date of filing this Order
and Judgment, the clerk’s office has not received a reply brief from Mr. Reid.
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issue. The proper procedural motion to dismiss was not a Rule 12(b)(1) motion but rather

a Rule 12(b)(6) motion or a Rule 56(a) motion for summary judgment.

       Because the parties presented evidence beyond the pleadings, we consider the

Government’s motion and the district court’s order as one for summary judgment. See

Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as

one for summary judgment under Rule 56.”); see also Supermail Cargo, Inc. v. United

States, 68 F.3d 1204, 1206 (9th Cir. 1995) (stating that “[b]ecause the applicability of the

equitable tolling doctrine often depends on matters outside the pleadings, it is not

generally amenable to resolution on a Rule 12(b)(6) motion” (internal quotation marks

omitted)).

       We review a district court’s grant of summary judgment de novo and its decision

to deny equitable tolling for an abuse of discretion. See Harms v. IRS, 321 F.3d 1001,

1006 (10th Cir. 2003). We view “the evidence in the light most favorable to the non-

moving party.” Zisumbo v. Ogden Reg’l Med. Ctr., 2015 WL 5172860, at *5 (10th Cir.

Sept. 4, 2015). “[A]lthough our review [in a summary judgment case] is de novo, we

conduct that review from the perspective of the district court at the time it made its

ruling, ordinarily limiting our review to the materials adequately brought to the attention

of the district court by the parties.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671

(10th Cir. 1998). The materials before the district court in this case were the affidavit of

Mr. Reid and the declaration of Deborah Locke, a BOP attorney at the Federal Transfer



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Center in Oklahoma City, and the exhibits accompanying both of them. ROA at 79-102,

115-369.

                                    A. Equitable Relief

1. Equitable tolling

       Under “long-settled equitable-tolling principles, generally a litigant seeking

equitable tolling bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his

way.” Barnes v. United States, 776 F.3d 1134, 1150 (10th Cir. 2015) (quotations and

citations omitted).

       In district court, Mr. Reid filed an affidavit in opposition to the Government’s

motion to dismiss. In it he asserts that prison officials prevented or interfered with his

filing a timely claim because they (1) placed him in administrative segregation on April

23, 2012, which blocked access to his legal documents and limited his ability to do legal

research; (2) refused to answer his requests for Form 95, which he understood from BOP

publications was required to file his claim; and (3) denied him access to his personal

property, which contained information that would have enabled him to file his claim.

ROA at 79-88. He repeats these points in his appellate brief.

       In her declaration, Ms. Locke contests many of Mr. Reid’s factual assertions. But

in its appellate brief, the Government states that summary judgment would not be

appropriate if resolution of the tolling issue turned on these facts. Aplee. Br. at 23 n.6. It

points out, however, that during the 19 months from September 22, 2010, the date Mr.

Reid’s claim accrued, to April 23, 2012, the record lacks evidence that Mr. Reid pursued

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his claim or that any circumstances prevented him from doing so. The Government

suggests this is enough to deny equitable tolling.

       Mr. Reid’s inaction during the first 19 months may be a factor in the equitable

tolling analysis, but litigants often file late in a limitations period, and § 2401(b) allowed

Mr. Reid 24 months to file his administrative claim. Mr. Reid’s tolling claim calls for

looking at the circumstances as a whole and balancing the equities accordingly. See

Tosco Corp. v. Koch Industries, Inc., 216 F.3d 886, 894 (10th Cir. 2000). In other words,

the facts alleged in Mr. Reid’s affidavit are relevant to the tolling issue, and the

Government’s concession that the roadblocks alleged there are not amenable to summary

judgment points to a remand for further consideration.

2. Equitable estoppel

       To establish equitable estoppel against the government, “(1) the party to be

estopped must know the facts; (2) he must intend that his conduct will be acted upon or

must so act that the party asserting the estoppel has the right to believe that it was so

intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the

former’s conduct to his injury.” Tsosie v. United States, 452 F.3d 1161, 1166 (10th Cir.

2006) (quoting Lurch v. United States, 719 F.2d 333, 341 (10th Cir. 1983)) (internal

quotation marks omitted). The plaintiff must make a showing of “affirmative

misconduct” on the part of the government. Id.

       Mr. Reid argued in district court that he should be allowed to proceed under the

doctrine of equitable estoppel, alleging that prison officials gave him BOP publications

instructing him that he must file his administrative claim only on Form 95 when, in fact,

                                             -5-
he could have used alternative written notice for his claim. ROA at 80-81, 83. He also

attached to his affidavit four exhibits—BOP publications—all stating that he “must

complete a Standard Form 95.” ROA at 88-98. The Government argues that the prison

officials’ failure to provide Form 95 to Mr. Reid does not amount to the “affirmative

misconduct” required for equitable estoppel. Aplee. Br. at 26. But that argument does

not address Mr. Reid’s claim that he was misled into thinking he had to use Form 95.

Mr. Reid states in his affidavit that he relied on the BOP instructions. The Government’s

pointing to his access to legal materials via computer research that would have provided

complete instructions is not a convincing antidote in light of his understandable reliance

on official BOP documents.

                                       * * * *

       The magistrate judge recommended dismissal under Rule 12(b)(1) for lack of

subject matter jurisdiction. She nonetheless considered and rejected the

nonjurisdictional equitable relief arguments. The Supreme Court in Kwai Fun Wong

held that the time limit in 28 U.S.C. § 2401(b) is nonjurisdictional. Because the

parties submitted evidence outside the pleadings, the Government’s motion to

dismiss the complaint should be considered as a motion for summary judgment. In

its brief, the Government concedes that factual assertions in Mr. Reid’s affidavit in

support of equitable relief are not amenable to summary judgment, but it argues that

his lack of diligence for 19 months of the two-year limitations period is enough for us

to affirm. Aplee. Br. at 23 & n.6. Although the magistrate judge’s Report and

Recommendation relies on this point, it does so only in part, and it is not clear

                                           -6-
whether the district court would have denied equitable tolling on this ground alone.

Under these circumstances, we reverse and remand for further consideration,

including whether an evidentiary hearing is in order.

                     B. Jurisdiction Under § 28 U.S.C. § 1346(b)(6)

       For the first time on appeal, the Government argues lack of subject matter

jurisdiction because Mr. Reid’s “proferred Amended Complaint” did not adequately

plead negligent or wrongful government action “under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with the law of

the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). When Mr. Reid

filed his opposition to the motion to dismiss, he also moved for leave to file the Amended

Complaint. The district court did not rule on that motion. Under these circumstances, the

district court should determine the status of the Amended Complaint in the first instance

and address the Government’s argument as appropriate.

                                   III. CONCLUSION

       We reverse and remand for further proceedings consistent with this opinion. We

grant Mr. Reid’s motion to proceed in forma pauperis.


                                              ENTERED FOR THE COURT,



                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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