Flores v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51005
Summary Calendar
RENE FLORES,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CV-662
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August 13, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rene Flores, now Texas inmate # 741105, appeals the district
court’s grant of summary judgment and dismissal pursuant to 28
U.S.C. § 2401(b) of his Federal Tort Claims Act (“FTCA”)
complaint. Flores’ motion to compel the United States to produce
documentation is DENIED.
Flores sought damages for negligence and medical malpractice
against the Audie L. Murphy VA Hospital. Flores alleged that the
*
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that this opinion should not be published and is not precedent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.
No. 01-51005
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hospital did not diagnose his mental condition properly, released
him prematurely, and exacerbated his mental problems.
Flores contends that the two-year statute of limitations in
28 U.S.C. § 2401(b) did not accrue until 1999 when he obtained
his complete medical record. He asserts that because he was
mentally disabled, he should not be held to have had knowledge of
the harm caused by the hospital. In the alternative, Flores
asserts that under 28 U.S.C. § 2401(a), his administrative
complaint filed in 1999 was timely.
We review a grant of summary judgment de novo. Resolution
Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398,
1401 (5th Cir. 1993). Summary judgment is proper if the
pleadings and the evidence show that there is no genuine issue as
to any material fact and the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(c). To defeat summary
judgment, the nonmovant must set forth specific facts showing the
existence of a genuine issue for trial. FED. R. CIV. P. 56(e).
The nonmovant cannot meet his burden with conclusional
allegations, unsubstantiated assertions, or a scintilla of
evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
The limitations period for tort claims brought against the
United States is set forth in the FTCA at 28 U.S.C. § 2401(b).
No. 01-51005
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MacMillan v. United States, 46 F.3d 377, 381 (5th Cir. 1995).
This limitation period is jurisdictional. Flory v. United
States, 138 F.3d 157, 159 (5th Cir. 1998).
Section 2401(b), 28 U.S.C., provides:
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.
Flores does not dispute that he was released from the
hospital in 1990 and that he filed his administrative claim in
1999.
In medical malpractice actions under the FTCA, the period
begins to accrue when the plaintiff discovers, or through the
exercise of reasonable diligence, should have discovered “both
his injury and its cause.” United States v. Kubrick, 444 U.S.
111, 120 (1979). Ignorance of legal rights and ignorance of the
fact of an injury are not identical concepts. Id. at 122.
After Flores’ discharge from the hospital, he sought medical
treatment for his mental condition. In 1991, he was adjudicated
disabled within the meaning of the Social Security regulations.
At that time, Flores was armed with the facts necessary to
determine whether any harm had been suffered, and he was expected
to use reasonable diligence to seek professional advice. See
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Kubrick, 444 U.S. at 123; Harrison v. United States, 708 F.2d
1023, 1027 (5th Cir. 1983).
Contrary to Flores’ assertions, the time period provided in
28 U.S.C. § 2401(a) does not provide relief for the untimely
filing of his administrative claim. See Simon v. United States,
244 F.2d 703, 704-05 (5th Cir. 1957). Flores has not shown
grounds for equitable tolling. Perez v. United States, 167 F.3d
913, 917-18 (5th Cir. 1999).
Flores has not shown that the decision to deny the
appointment of counsel was an abuse of discretion. Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Accordingly, the
judgment of the district court is AFFIRMED.
AFFIRMED; MOTION DENIED.