Garza v. U.S. Bureau of Prisons, 01-2449.

• Decision Date: 27 March 2002
• Docket Number: No. 01-2449.,01-2449.
• Citation: 284 F.3d 930
• Parties: Ruben GARZA, as Personal Representative of Estate of Gloria Garza Regalado, Deceased, Appellant, v. UNITED STATES BUREAU OF PRISONS, an agency of the United States of America; John Does, 1-50, with said designation representing all government and/or private companies, offices departments, individuals or entities charged with the obligation of overseeing, operating, or instituting or managing the programs under which the City of Faith Prison Ministries and/or any other entity housing Federal prisoners for the Federal Bureau of Prisons, or the insurance company for any individual or entity immune from direct action; United States of America, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F.3d 930

Ruben GARZA, as Personal Representative of Estate of Gloria Garza Regalado, Deceased, Appellant, v. UNITED STATES BUREAU OF PRISONS, an agency of the United States of America; John Does, 1-50, with said designation representing all government and/or private companies, offices departments, individuals or entities charged with the obligation of overseeing, operating, or instituting or managing the programs under which the City of Faith Prison Ministries and/or any other entity housing Federal prisoners for the Federal Bureau of Prisons, or the insurance company for any individual or entity immune from direct action; United States of America, Appellees.

No. 01-2449.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2001.

Filed: March 27, 2002.

COPYRIGHT MATERIAL OMITTED

Christopher D. Anderson, Little Rock, AR, argued (Charles P. Boyd, Jr., on the brief), for appellant.

Gwendolyn D. Hodge, Asst. U.S. Atty., Little Rock, AR, argued, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

BEAM, Circuit Judge.

Ruben Garza, personal representative for the Estate of Gloria Garza Regalado (hereinafter referred to as either "the Estate" or "Garza"), appeals from the district court's¹ dismissal of the Estate's wrongful death suit against the United States Bureau of Prisons (Bureau). The district court held that the suit was barred by the Federal Tort Claims Act's two-year statute of limitations, 28 U.S.C. § 2401(b). Garza argues that the claim was brought within the statute of limitations because it did not accrue until he discovered that an individual whose alleged tortious activity contributed to his sister's murder was an employee of the Bureau, and that the Bureau concealed information giving rise to the claim. Because we agree that the claim was time barred, we affirm.

I. BACKGROUND

On March 18, 1995, Edward Regalado (Regalado) was housed at the City of Faith, a halfway house located in Monroe, Louisiana, serving the remainder of an eight-year federal prison sentence for cocaine distribution. While there, he was assigned to work at an off-site location. On that date, Regalado failed to report back to the City of Faith after he completed his workday at an assigned job. He initially called the City of Faith and said he would be working late, but he failed to return at the time he had indicated. His absence was not initially reported to any law enforcement agency nor was his wife, Gloria Garza Regalado (Ms. Regalado), ever notified. Ms. Regalado was found murdered on March 19, 1995. On March 16, 1996, Regalado was convicted of murdering Ms. Regalado and is currently serving a life sentence.

Ms. Regalado's brother, Ruben Garza, was appointed personal representative of her estate. On January 29, 1998, Garza filed a state wrongful death action against the City of Faith and Regalado in a state court. Garza claims that, initially, he believed Dan Simpson, the person he alleges failed to notify law enforcement of Regalado's escape, was an employee of the City of Faith. During the discovery process in the action against City of Faith, Garza learned that Simpson was an employee of the Bureau. He subsequently pursued this action against the Bureau under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (FTCA). An administrative claim, which is a prerequisite to filing a tort claim against the federal government, was filed with the Bureau on October 29, 1998. See 28 U.S.C. § 2401(b). Garza filed the federal action on June 7, 1999.

Garza alleges that the Bureau was negligent in failing to properly supervise Regalado (a resident with known violent propensities), to take proper steps to protect Ms. Regalado, and to act in a reasonably prudent manner in numerous other respects. The complaint alleges that the City of Faith failed to follow its own policies in managing the halfway house, that enforcement of those policies would have returned Regalado to prison prior to March 18, 1995, thereby thwarting the opportunity for him to murder Ms. Regalado, and that the Bureau is vicariously liable for the acts of its agent or, in the alternative, is liable for negligently supervising an independent contractor.

The Bureau challenged the court's subject matter jurisdiction pursuant to a Federal Rule of Civil Procedure 12(b)(1) motion. It moved to dismiss Garza's claim because, among other grounds, the claim was time barred by the FTCA's two-year statute of limitations for presenting claims to the appropriate agency. In response, Garza argued that the statute of limitations did not accrue until he discovered the Bureau's involvement in the alleged tortious acts-that is, when he discovered Simpson was a Bureau employee. Garza also contended that the statute of limitations was equitably tolled because Simpson and the Bureau concealed and misrepresented the nature of the relationship between the Bureau and the City of Faith and concealed Simpson's role in failing to notify law enforcement of Regalado's escape.

The district court determined the Estate's claim accrued, at the latest, in February 1996, as it was on inquiry notice by that time. For instance, in a letter dated February 16, 1996, counsel for the Estate wrote to the U.S. Marshal Service that it was his "understanding [the Marshal Service] contacted the Federal Bureau of Prisons in New Orleans and spoke to someone down there about Mr. Regalado's failure to return from the Halfway House." Also, the court indicated that "common sense would tell a person that the federal government would retain a considerable degree of control and input over federal prisoners entrusted to the care of a non-governmental third party." In short, the court set forth various bases for determining that the Estate was on inquiry notice by February 1996. The court further found Garza had failed to produce evidence that either the Bureau or Simpson had concealed information that prevented discovery of a cause of action. Therefore, the statute of limitations was not equitably tolled. The court concluded that the Estate's October 29, 1998, claim to the Bureau was untimely, as it was not presented within the mandatory two-year limitations period and, consequently, dismissed the complaint without prejudice for lack of subject matter jurisdiction. On appeal, the Estate renews its arguments.

II. DISCUSSION

Under the FTCA, a tort claim against the United States must be presented in writing to the appropriate federal agency within two years after the claim accrues or it is time barred. 28 U.S.C. § 2401(b). In this case, the Estate's FTCA claim is untimely if it accrued prior to October 29, 1996, which is the two-year mark prior to the date the claim was presented to the Bureau.

A claim generally accrues for FTCA purposes when the plaintiff is injured, Osborn v. United States, 918 F.2d 724, 731 (8th Cir.1990), but might not accrue until the plaintiff knows or reasonably should know of both an injury's existence and its cause, Slaaten v. United States, 990 F.2d 1038, 1041 (8th Cir.1993). Although some precedent suggests the latter definition has been used primarily in medical malpractice cases, see, e.g., K.E.S. v. United States, 38 F.3d 1027, 1029 (8th Cir. 1994), we find, based on authority addressing a diverse array of tort claims, that its application is not so limited and is appropriate for the situation at hand, see, e.g., Lhotka v. United States, 114 F.3d 751, 753 (8th Cir.1997) (applying reasonable knowledge definition in trespass and nuisance claim brought pursuant to FTCA); Slaaten, 990 F.2d at 1039, 1041 (applying same definition in conversion claim brought pursuant to FTCA); Diaz v. United States, 165 F.3d 1337, 1340 (11th Cir.1999) (indicating the court was "persuaded by the opinions in the majority of Circuits that have ... extend[ed] the diligence-discovery accrual rule to wrongful death actions brought under the FTCA"). "The rationale behind the modified rule is to protect plaintiffs who are blamelessly unaware of their claim because the injury has not yet manifested itself or because the facts establishing a causal link between the injury and the [tortious activity] are in the control of the torfeasor or are otherwise not evident." Diaz, 165 F.3d at 1339. Therefore, where the government has shown that a suit was untimely in that the claim was presented more than two years from the date of the injury, the plaintiff may show that he had no reason to believe he had been injured by an act or omission by the government. Drazan v. United States, 762 F.2d 56, 60 (7th Cir.1985); see also Wollman v. Gross, 637 F.2d 544, 549 (8th Cir.1980); Waits v. United States, 611 F.2d 550, 552 (5th Cir.1980).

"When there are two causes of an injury, and only one is the government, the knowledge that is required to set the statute of limitations running is knowledge of the government cause, not just of the other cause." Drazan, 762 F.2d at 59-60. The limitations period "begins to run either when the government cause is known or when a reasonably diligent person (in the tort claimant's position) reacting to any suspicious circumstances of which he might have been aware would have discovered the government cause-whichever comes first." Id. at 59. Therefore, when catalytic circumstances prescribe, a plaintiff must exercise reasonable diligence in inquiring into the injury's cause. Arvayo v. United States, 766 F.2d 1416, 1421-22 (10th Cir.1985). But see, e.g., Drazan, 762 F.2d at 59-60 (indicating plaintiff's mere knowledge that her spouse died of cancer did not necessarily place her on inquiry notice); Diaz, 165 F.3d at 1341 (knowledge of spouse's suicide, "without any indication of medical treatment beforehand, [was] clearly not enough to put a plaintiff on notice that medical malpractice may have occurred"). Although "[a] claim does not accrue when a person has a mere hunch, hint, suspicion, or rumor of a claim, ... such suspicions do give rise to a...