United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss (ECF No. 8). The motion is fully briefed and ready
for disposition. Upon review of the motion and related
pleadings, the Court will dismiss this action as barred by
the statute of limitations.
9, 2017, Plaintiff filed a pro se Complaint pursuant
to the Federal Tort Claims Act, along with several exhibits.
(Compl., ECF No. 1) The Court granted Plaintiffs motion
proceed in forma pauperis, and the Clerk issued
process in the matter. Plaintiff alleges that in May 2012, he
met with his psychiatrist at the Veterans Administration
("VA")-Jefferson Barracks facility. (Pl's Ex. 1
p. 3, ECF No. 1-1) Plaintiff sought, and was denied, travel
allowance pay to reimburse his travel expenses to the VA.
(Id.) Plaintiff became upset and phoned a supervisor
from the reception desk, and the supervisor stated she was
hesitant to provide travel pay because he was homeless and
had no address. (Id.) Plaintiff started yelling, and
the supervisor warned that she would call the police.
(Id. at pp. 3-4) Shortly thereafter, the VA police
approached Plaintiff and told him to leave the premises.
(Id. at 4) Plaintiff alleges that the officers beat
him, causing physical injuries and damage to his iPhone.
(Id.; Compl. p. 4) Plaintiff filed a Claim for
Damage, Injury, or Death with the VA on September 16, 2013,
which was denied on June 3, 2014. (Pl's Ex. 3, ECF No.
1-3; Ex. 1 p. 2, ECF No. 1-1) He then filed a Complaint in
federal court, requesting $100, 000 in damages for dental
bills, replacement of his iPhone, and pain and suffering.
August 24, 2017, Defendant filed the present motion to
dismiss, claiming that Plaintiffs Complaint fails to state a
claim under Rule 12(b)(6) of Federal Rules of Civil Procedure
because the Complaint is barred by the statute of
limitations. After the Court issued an Order to Show Cause
why Plaintiff failed to file a timely response to
Defendant's motion to dismiss, Plaintiff filed a response
in opposition on October 16, 2017. (ECF No. 11)
Federal Tort Claims Act ("FTCA"), 28 U.S.C. §
2671 et seq., was enacted by Congress as "a
limited waiver of the United States's sovereign immunity,
to permit persons injured by federal-employee tortfeasors to
sue the United States for damages in federal district
court." Mader v. United States, 654 F.3d 794,
797 (8th Cir. 2011) (citation omitted). "[W]hile
'the extent of the United States'[s] liability under
the FTCA is generally determined by reference to state law,
' ... the adjudicatory capacity over such claims is
strictly limited to the various federal district
courts." Id. (quoting Molzof ex rel. Molzof
v. United States, 502 U.S. 301, 304 (1992)).
"Although state substantive law establishes and defines
a claim under the FTCA, federal law defines the limitations
period and determines when the claim accrues." Allen
v. United States, No. 4:16-CV-607 (CEJ), 2017 WL
1355492, at *2 (E.D. Mo. April 13, 2017) (citations omitted).
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.
28 U.S.C. § 2401(b). In addition, the letter indicating
the final decision of the VA advised Plaintiff that if he was
dissatisfied with the denial of his claim, he must initiate a
suit in a federal district court "within six months of
the mailing of this notice as shown by the date of this
denial (28 U.S.C. § 2401(b)). In any lawsuit, the proper
party defendant is the United States, not the Department of
Veterans Affairs." (Pl's Ex. 1 p. 2, ECF No. 1-1)
record shows that the VA denied Plaintiffs claim on June 3,
2014. Plaintiff then had six months after this notice to file
a claim under the FTCA. However, Plaintiff did not file his
Complaint in federal court until May 9, 2017, nearly three
years later. In the summary of the incident provided to the
American Civil Liberties Union ("ACLU"), Plaintiff
acknowledged that he was required to file a lawsuit by
November 3, 2014. (Id. at p. 4) Further, Plaintiffs
response to Defendant's motion to dismiss offers no
explanation for the delay in filing a federal lawsuit,
despite Plaintiffs knowledge of the deadline. Plaintiff did not
bring this action until nearly 2 1/2
years after the 6 month statute of limitations expired, and
therefore Plaintiffs FTCA claim is barred by the statute of
limitations. Sinkfield v. Pope, 578 F.Supp. 1500,
1501 (E.D. Mo. 1983). Because the restrictions in 28 U.S.C.
§ 2401(b) are jurisdictional, dismissal under Rule
12(b)(1) of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction is appropriate. Likins v.
United States, 589 Fed.App'x 799, 800 (8th Cir.
IT IS HEREBY ORDERED that Defendant's
Motion to Dismiss (ECF No. 8) is GRANTED. A
separate Order of Dismissal shall accompany this Memorandum
 The Court notes that the doctrine of
equitable tolling permits a plaintiff to sue after the
statutory time period has expired if inequitable
circumstances prevented the plaintiff from timely filing
suit. Firstcom, Inc. v. Qwest Corp.,555 F.3d 669,
675 (8th Cir. 2009) (citation omitted). The party claiming
the benefit of equitable tolling has the burden of
demonstrating that he is entitled to such relief.
Id. (citation omitted). While Plaintiff does not
offer homelessness as a reason to equitably toll the statute
of limitations, the Court notes that at the time of the
incident and on his financial affidavit, Plaintiff asserted
that he was homeless. See Checo v. McDonald, 27 Vet.
App. 105, 106 (2014) (finding homelessness qualifies as an
extraordinary circumstance where plaintiff demonstrates that
homelessness caused the late filing because plaintiff was
unable to receive mail). However, the record demonstrates
that Plaintiff was able to receive mail at a postal address,
and nothing in the record indicates that homelessness
precluded him from timely filing his claims in federal court.
See Apionishev v. ...