           Case: 16-11727    Date Filed: 09/29/2017   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11727
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:14-cv-00262-JES-PRL



JOSE RAMON ECHEMENDIA,

                                                           Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,

                                                          Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (September 29, 2017)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Plaintiff appeals the district court’s grant of summary judgment in his action

under the Federal Tort Claims Act (“FTCA”) on the grounds that he did not file an

administrative claim within the two-year statute of limitations period, as required

by the statute. We affirm.

I.    BACKGROUND

      Plaintiff Jose Ramon Echemendia (“Plaintiff”) has Type II diabetes and is an

inmate at Federal Correctional Institute, Coleman. Upon his arrival at Coleman on

June 23, 2011, Plaintiff alleges that he was given standard work boots, rather than

diabetic shoes, in violation of Bureau of Prison (BOP) policies. As a result,

Plaintiff developed severe blistering on his left foot, and he eventually reported to

the infirmary with severe bleeding, swelling, pain, and an infection. Plaintiff’s

injury did not respond to antibiotic treatments. By August 19, 2011, the toes on his

left foot were gangrenous, and Plaintiff was taken to the hospital. Plaintiff was

informed the next day, August 20, that he would have to have two of the toes on

his left foot amputated. Plaintiff’s toes were amputated on August 25. Plaintiff

remained hospitalized until October 9, 2011. Plaintiff continues to suffer severe

pain in his foot and other physical and emotional complications from his

amputation.

      Proceeding pro se, Plaintiff prepared an administrative claim against the

BOP using Standard Form 95 on August 7, 2013, and gave it to prison staff to mail


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on August 22, 2013. 1 Prison staff mailed it on August 23, and the BOP received it

August 26, 2013. Plaintiff filed a claim in federal district court against the United

States (“Defendant”) on May 5, 2014, and an amended complaint on May 29,

2014. Plaintiff alleged that the medical staff at Coleman failed to properly “help

me with my medical issue,” and sought $850,000 in damages as a result of his

injury. Defendant filed a motion for summary judgment, arguing that Plaintiff’s

administrative claim was not timely because the BOP received it after the two-year

statute of limitations had passed. The district court agreed and granted

Defendant’s motion for summary judgment.

II.    DISCUSSION

       A.      Standard of Review

       We review de novo a district court’s grant of summary judgment on an

FTCA claim. Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006).

Questions concerning the application of a statute of limitations are also reviewed

de novo. Harrison v. Digital Health Plan, 183 F.3d 1235, 1238 (11th Cir. 1999).

       B.      Whether Plaintiff’s Administrative Claim Was Timely Filed?

       To make a claim against an agency under the FTCA, an administrative claim

must be “presented in writing to the appropriate federal agency within two years

1
  A claimant must first present an administrative claim to the relevant agency and receive a
denial before pursing an FTCA claim in court. 28 U.S.C. § 2675(a). Submitting a Standard
Form 95 to the agency is the usual way that administrative claims are made. Dalrymple v.
United States, 460 F.3d 1318, 1322 n.3 (11th Cir. 2006).
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after such claim accrues.” Price v. United States, 775 F.2d 1491, 1493 (11th Cir.

1985) (quoting 28 U.S.C. § 2401(b)). A claim is considered presented to the

agency when the agency “receives from a claimant . . . an executed Standard Form

95 or other written notification of an incident.” 28 C.F.R. § 14.2 (emphasis

added). The two-year statute of limitations period typically begins to run when the

plaintiff is injured, although a medical malpractice claim “accrues when the

plaintiff is, or in the exercise of reasonable diligence should be, aware of both her

injury and its connection with some act of the defendant.” Price, 775 F.2d at

1494–95.

      Defendant argues that his claim did not accrue until he “realized the

seriousness of his situation and that he needed to file for a remedy due to [BOP]

negligence.” Defendant states that “he waited until he found out the extent of the

surgery and how it would affect him physically in the remainder of his life.” The

purpose of departing from a strict application of the two-year statute of limitations

in medical malpractice situations, however, is “to protect plaintiffs who are

blamelessly unaware of their claim because the injury has not yet manifested itself

or because the facts establishing a causal link between the injury and the medical

malpractice are in the control of the tortfeasor or are otherwise not evident.” Diaz

v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999). This does not apply to

Plaintiff, who was aware of the “seriousness of his situation” when he was


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informed he needed his toes amputated as a result of the infection. At that point,

Plaintiff had “learn[ed] the ‘critical facts’ indicating that he had been hurt and who

had inflicted the injury”; that is, Plaintiff was aware of his injury and its connection

to Defendant through to the shoes provided him by the BOP. 2 McCullough v.

United States, 607 F.3d 1355, 1360 (11th Cir. 2010) (quoting United States v.

Kubrick, 444 U.S. 111, 122 (1979)). We therefore agree with the district court that

Plaintiff’s claim accrued no later than August 20, 2011.

       Plaintiff thus had two years from August 20, 2011, to present his claim to

the BOP as required by the statute, but the BOP did not receive Plaintiff’s Standard

Form 95 until August 26, 2013, outside of the two-year period. Defendant argues

that the Supreme Court’s decision in Houston v. Lack—holding that a pro se

prisoner’s notice of appeal was deemed filed when he delivered the notice to prison

authorities for forwarding to the district court—should be applied to his situation.

487 U.S. 266, 270–71 (1988). However, even if the “prison mailbox rule” is

applicable, 3 Plaintiff did not submit his claim to prison staff until August 22, 2013,

meaning his administrative claim was untimely.


2
  Defendant notes that he received a medical evaluation immediately prior to his transfer to
Coleman in which the doctor certified that he did not have any lacerations or other problems with
his feet.
3
  Relying on Houston, this Court has recognized that, for pro se prisoners filing claims under the
FTCA, “the date of filing shall be that of delivery to prison officials of a complaint or other
papers destined for district court for the purpose of ascertaining timeliness.” Garvey v. Vaughn,
993 F.2d 776, 783 (11th Cir. 1993). As the plaintiff in Garvey had already properly submitted an
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       C.      Whether Equitable Tolling Is Appropriate in Defendant’s Case?

       Plaintiff argues that his late filing should be excused under the doctrine of

equitable tolling. 4 While the FTCA’s statute of limitations is subject to equitable

tolling, United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015), equitable

tolling is an “extraordinary remedy” that should be used “sparingly.” Arce v.

Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006) (quoting Justice v. United States, 6

F.3d 1474, 1475 (11th Cir.1993)). A plaintiff seeking equitable tolling has the

burden of showing that his untimely filing was “because of extraordinary

circumstances that are both beyond his control and unavoidable even with

diligence.” Id. (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th

Cir.1999)).

       In support of his argument that equitable tolling should be applied to his

situation, Plaintiff points to his hospitalization, confinement to a wheelchair that

limited his access to the law library, and transfer from one prison to another.

These are not extraordinary circumstances, however. Defendant’s impairments


administrative claim, Garvey does not address whether the prison mailbox rule extends to the
filing of the administrative claim itself. Id. at 779.
4
  Plaintiff also discusses in his brief excusable neglect under Fed. R. App. P. 4(a)(5). This
discussion is mostly directed to Plaintiff’s late filing of his response to Defendant’s motion for
summary judgment, but to the extent that Plaintiff contends that excusable neglect under Rule
4(a)(5) is sufficient to deem his administrative claim timely, Plaintiff’s argument fails. Rule
4(a)(5) does not apply to administrative claims under the FTCA, and excusable neglect is not
otherwise sufficient to trigger equitable tolling. Motta ex rel. A.M. v. United States, 717 F.3d
840, 847 (11th Cir. 2013).


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themselves cannot create extraordinary circumstances unless there is a connection

between the incapacity and the delay in filing, see Lawrence v. Florida, 421 F.3d

1221, 1226–27 (11th Cir. 2005) (holding that mental incapacity is not sufficient to

justify equitable tolling without establishing a connection between the impairment

and ability to timely file), and Plaintiff has not shown how any of his physical

limitations created a circumstance “unavoidable even with diligence” that

prevented him from filing his administrative claim. Arce, 434 F.3d at 1261.

Plaintiff was not confined to the hospital or to a wheelchair for the entirety of the

two-year period, and indeed, these impediments occurred at the beginning of the

limitations period. Also, a transfer between prisons is not an extraordinary

circumstance. Nor are Plaintiff’s pro se status and ignorance of the law factors that

can call for equitable tolling. Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 970 (11th

Cir. 1997). In sum, Plaintiff has not met his burden of showing that his

circumstances are extraordinary enough to warrant equitable tolling.

III.   CONCLUSION

       It is very unfortunate that Plaintiff suffered a serious injury and also

unfortunate that Plaintiff’s claim cannot be heard when he was only two days late

in submitting that claim. Nevertheless, the FTCA requires a claimant to file an

administrative claim against an agency within two years of the claims accrual, and

Plaintiff failed to do so. Further, Plaintiff has not demonstrated that equitable


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tolling should be applied in his case to excuse his late filing. Therefore, the district

court’s grant of summary judgment in Defendant’s favor is AFFIRMED.




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JORDAN, Circuit Judge, concurring in the judgment.

      Given Supreme Court precedent on the accrual of a cause of action under the

FTCA, see, e.g., United States v. Kubrick, 444 U.S. 111, 118 (1979), I agree with

the court that we must affirm the summary judgment entered against Mr.

Echemendia. But it seems to me that, when surgery is required for the purported

medical malpractice of prison doctors, there is a good argument that the inmate’s

claim should accrue on the date of the surgery.         Until the prisoner actually

undergoes surgery, and knows what was done during surgery, it is impossible for

him to know whether the information he was given before the procedure (that he

has a problem, and that the problem requires surgical intervention) is correct.

There are certainly times when doctors, having started a planned surgical

procedure, do not carry through or change course because of something they find

during the procedure.




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