Mitchell v. Nemetz
Opinion of the Court
MEMORANDUM
Plaintiff appeals (1) the dismissal of his Federal Tort Claims Act (“FTCA”) suit for lack of subject-matter jurisdiction and (2) the denial of leave to file a motion for
Plaintiffs claim accrued no later than September 14, 2004. His counsel’s letter of that date demonstrated unequivocally that Plaintiff knew of “both his injury and its cause.” United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). He may have lacked conclusive evidence to prove his claim at that time, but his position was analogous to that of any plaintiff who knows of an injury, but lacks sufficient evidence that it was negligently inflicted. Kubrick instructs that the statute of limitations nevertheless begins to run for such a plaintiff. Id. at 124, 100 S.Ct. 352. Because Plaintiffs claim accrued by September 14, 2004, and he did not file an administrative claim until 2007, the two-year statute of limitations contained in the FTCA bars his suit. 28 U.S.C. § 2401(b).
The statute of limitations was not tolled by the alleged fraudulent concealment. Plaintiff had actual knowledge of his injury by September 14, 2004, even if the dentists did not provide his dental records to him on request. Grimmett v. Brown, 75 F.3d 506, 514 (9th Cir. 1996).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Reference
- Full Case Name
- Stephen MITCHELL v. Dr. Harold NEMETZ, and United States of America, Defendant—Appellee
- Status
- Published