IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Raymond P. Moore

Civil Action No. 22-cv-03139-RM-KAS

TONYA MCDANIEL,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant. ______________________________________________________________________________

ORDER ______________________________________________________________________________

In September 2022, Plaintiff filed this pro se lawsuit in state court, alleging dental malpractice by former Defendant Rykiel at a visit that occurred in 2015. Because former Defendant Rykiel was acting within the scope of her employment as a deemed employee of the Public Health Service, the case was removed to this Court pursuant to

(c). (ECF No. 1, ¶¶ 4-6.) The Court then granted Defendant’s motion to be substituted as the sole Defendant in the case. (ECF No. 9.) Before the Court is Defendant’s Motion for Summary Judgment (ECF No. 14), which argues that the two-year statute of limitations under the Federal Tort Claims Act applies, that Plaintiff did not timely present her administrative claim, and that the Complaint fails to identify extraordinary circumstances justifying equitable tolling. Defendant asserts that Plaintiff was aware of the alleged injury in November 2015 yet failed to present an administrative claim to the United States Department of Health and Human Services until January 2022. The claim was denied as untimely in April 2022. Because Plaintiff has not filed a Response to the Motion, the Court accepts these facts as undisputed. Although the Court liberally construes Plaintiffs pleadings, see Haines v. Kerner,

(1972), the Court will not supply additional factual allegations to round out her Complaint or construct legal theories on her behalf, Smith v. United States,

(10th Cir. 2009). Where, as here, “the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Water Pik, Inc. v. Med-Sys., Inc.,

(10th Cir. 2013). Accordingly, the Motion (ECF No. 14) is GRANTED, and the Clerk is directed to CLOSE this case. DATED this 5th day of March, 2024. BY THE COURT:

Senior United States District Judge