Johnson v. United States ( 2021 )

Case: 19-10326 Document: 00515768085 Page: 1 Date Filed: 03/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-10326 March 5, 2021
Summary Calendar Lyle W. Cayce
Clerk
Charles E. Johnson,
Plaintiff—Appellant,
versus
United States of America,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-614
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Charles E. Johnson, federal prisoner # 83808-180, filed a complaint
contending that he received negligent medical care in violation of the Federal
Tort Claims Act (FTCA). The district court ordered that the complaint be
dismissed without prejudice because Johnson failed to show that he complied
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-10326
with all sanction orders previously entered against him in federal court or that
he adhered to prior district court orders requiring him to obtain permission
from a federal judge before filing a civil suit. Johnson subsequently obtained
consent to file a new suit in which he once again argued that he was denied
proper medical care in violation of the FTCA. The district court granted the
Government’s motion to dismiss the suit under Federal Rule of Civil
Procedure 12(b)(6) on the basis that the complaint was untimely.
Johnson has appealed from the dismissal of his complaint as untimely.
We review de novo the grant of a motion to dismiss under Rule 12(b)(6). See
Romero v. City of Grapevine, Texas, 888 F.3d 170, 176 (5th Cir. 2018). To the
extent that Johnson presents claims as to the district court’s earlier judgment
dismissing his prior complaint without prejudice, those claims are not before
this court. He took no action to appeal or to continue the earlier proceedings
and did not attempt to preserve any cause of action as to the prior complaint.
According to Johnson, the district court erred in dismissing his instant
suit as untimely because he was entitled to equitable tolling. The time limits
to file a FTCA claim can be equitably tolled where, inter alia, the plaintiff has
been misled about his rights or has actively pursued his judicial remedies by
filing a defective pleading during the statutory period. See United States v.
Kwai Fun Wong, 575 U.S. 402, 412 (2015); Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 & nn.3-4 (1990); Perez v. United States, 167 F.3d 913, 917 (5th
Cir. 1999).
Johnson has failed to show that he was misled about his rights by either
the agency responsible for deciding his administrative claim or by the courts.
See Irwin, 498 U.S. at 96 & nn.3-4. While he contends that equitable tolling
is justified because he timely filed a defective complaint (i.e., the complaint
that was dismissed without prejudice), there is no indication that filing suit
in violation of clear and uncomplicated orders detailing the requirements to
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Case: 19-10326 Document: 00515768085 Page: 3 Date Filed: 03/05/2021
No. 19-10326
initiate an action is analogous to cases in which we have applied equitable
tolling. See, e.g., Granger v. Aaron’s, Inc., 636 F.3d 708, 713 (5th Cir. 2011);
Clymore v. United States, 217 F.3d 370, 375-76 (5th Cir. 2000); Perez, 167 F.3d
at 917-18. In any event, the record does not establish that Johnson exercised
due diligence in preserving his legal rights. See Irwin, 498 U.S. at 96. The
circumstances surrounding the untimely filing of the instant suit instead are
indicative of a “garden variety” case of excusable neglect that does not merit
application of equitable tolling. See id.
Finally, Johnson argues that the Government filed its appellate brief
out of time and did not obtain leave of court to do so. Thus, he asserts that
the brief should be stricken. His claim is unsupported by the record.
The judgment of the district court is AFFIRMED.
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