(PC) Willis v. United States

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 KENTRELL WILLIS, Case No. 1:19-cv-00761-BAM 12 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 v. (ECF No. 50) 14 UNITED STATES OF AMERICA, 15 Defendant. [16] 17 I. BACKGROUND 18 Plaintiff Kentrell Willis (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 19 pauperis in this civil action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401 , 20 et seq. Plaintiff seeks monetary damages from the United States of America (“Defendant”) for 21 alleged sexual assault and negligence arising out of events at the United States Penitentiary, 22 Atwater. (ECF No. 1.) The parties have consented to the jurisdiction of the United States 23 Magistrate Judge for all purposes, including trial and entry of judgment. (ECF No. 49.) 24 On February 28, 2022, Defendant filed a motion for summary judgment on the grounds 25 that (1) Plaintiff did not timely file his complaint in this action following denial of administrative 26 claims submitted in June and August 2018; and (2) Plaintiff failed to exhaust administrative 27 remedies for claims based on events occurring after those described in the August 2018 [28] 1 administrative claim.1 (ECF No. 50.) Plaintiff timely filed an opposition on August 31, 2022, 2 (ECF No. 73), and Defendant filed a reply on September 14, 2022, (ECF No. 74). The motion for 3 summary judgment is deemed submitted.2 L.R. 230(l). 4 II. LEGAL STANDARDS 5 A. Summary Judgment 6 Any party may move for summary judgment, and the Court shall grant summary judgment 7 if the movant shows that there is no genuine dispute as to any material fact and the movant is 8 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Wash. 9 Mut. Inc. v. United States, 636 F.3d 1207 , 1216 (9th Cir. 2011). Each party’s position, whether it 10 be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 11 materials in the record, including but not limited to depositions, documents, declarations, or 12 discovery; or (2) showing that the materials cited do not establish the presence or absence of a 13 genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. 14 Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the 15 record not cited to by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); 16 Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026 , 1031 (9th Cir. 2001); accord Simmons v. 17 Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 18 In judging the evidence at the summary judgment stage, the Court does not make 19 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 20 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 21 inferences in the light most favorable to the nonmoving party and determine whether a genuine 22 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 23 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). [25] 26 1 Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1988); 27 Klingele v. Eikenberry, 849 F.2d 409 , 411–12 (9th Cir. 1988). (ECF No. 52.) 2 This motion was dropped inadvertently by the Court’s CM/ECF reporting/calendaring system 28 resulting in the prolonged delay in resolution. 1 B. Federal Tort Claims Act 2 Under the FTCA, an “action shall not be instituted upon a claim against the United States 3 for money damages” unless a plaintiff has exhausted administrative remedies by filing a claim 4 with the appropriate federal agency within two years of the act or injury. 28 U.S.C. § 2675 (a). 5 Thus, only after an administrative claim is denied, or deemed denied, may a claimant file an 6 action in federal court. Id.; see also McNeil v. United States, 508 U.S. 106, 113 (1993) (“The 7 FTCA bars claimants from bringing suit in federal court until they have exhausted their 8 administrative remedies.”). If the agency denies an administrative claim, suit must be filed within 9 six months of the date of mailing of such denial. 28 U.S.C. § 2401 (b). 10 Significantly, exhaustion of administrative remedies cannot be waived. Brady v. United 11 States, 211 F.3d 499, 503 (9th Cir. 2000); see also Vacek v. United States Postal Service, 447 12 F.3d 1248, 1250 (9th Cir. 2006) (“the exhaustion requirement . . . must be interpreted strictly.”). 13 However, the statute of limitations is subject to equitable tolling in certain circumstances. See 14 United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015) (holding “FTCA’s time bars are 15 nonjurisdictional and subject to equitable tolling.”). 16 III. DISCUSSION 17 A. Undisputed Material Facts (“UMF”)3 18 1. On June 23, 2018, the Bureau of Prisons received an SF 95 form from Plaintiff dated 19 June 12, 2018 (the “June 2018 Claim”) for an alleged sexual assault that he asserted 20 took place on May 14, 2018. (ECF No. 50-3, Ex. A, Declaration of Jennifer Vickers ¶ 21 4 & Ex. 1; ECF No. 50-4, Ex. B, Deposition of Kentrell Willis 17 & Ex. 2.) 22 2. The June 2018 Claim sought $35 million in damages. (Vickers Decl. Ex. 1; Willis 23 Depo. 17.) [24] 3 See Defendant’s Statement of Undisputed Facts, (ECF No. 50-2). Plaintiff did not comply with the Local 25 Rules in preparing his opposition, including by failing to reproduce Defendant’s Statement of Undisputed Facts and providing “a citation to the particular portions of any pleading, affidavit, deposition, 26 interrogatory answer, admission, or other document relied upon in support” of any disputed facts. L.R. 260(b). As a result, Defendant’s Statement of Undisputed Facts is accepted except where brought into 27 dispute by Plaintiff’s declaration signed under penalty of perjury, (ECF No. 73 at 8-26), or Plaintiff’s Statement of Disputed Factual Issues, (ECF No. 73 at 4-7). Unless otherwise indicated, disputed and 28 immaterial facts are omitted from this statement and relevant objections are overruled. 1 3. The June 2018 Claim was denied on September 13, 2018. (Vickers Decl. ¶ 5 & Ex. 2; 2 Willis Depo. 20.) 3 4. On August 8, 2018, the Bureau of Prisons received an SF 95 form from Willis dated 4 July 31, 2018 (the “August 2018 Claim”). (Vickers Decl. ¶ 6 & Ex. 3; Willis Depo. 5 20-21 & Ex. 3.) 6 5. The August 2018 Claim asserted $5 million in damages for alleged retaliation on July 7 27, 2018. (Vickers Decl. Ex. 3; Willis Depo. 21.) 8 6. The August 2018 Claim asserted that on July 27, 2018, officers M. Fontes and M. 9 Pavey conspired to have Willis murdered by two Mexican gang members by placing 10 those gang members in the same exercise cage as Willis. (Vickers Decl. Ex. 3.) 11 7. The August 2018 Claim was denied on August 9, 2018. (Vickers Decl. ¶ 7 & Ex. 4.) 12 8. Willis was aware that he had filing deadlines in February and March 2019 for his 13 August 2018 and June 2018 Claims, respectively—although he did not know the 14 precise dates. (Willis Depo. 48.) 15 9. Willis became an inmate at USP Atwater in July 2017, and was transferred to USP 16 Lewisburg on November 5, 2018. (Vickers Decl. ¶ 3; Willis Depo. 129.) 17 10. On November 21, 2018, Willis submitted a Central Office Administrative Remedy 18 Appeal in Case Number 951565-A1 (the “November 2018 Appeal”). (Willis Depo. 24 19 & Ex. 5.) 20 11. Willis prepared the November 2018 Appeal while at USP Lewisburg. (Willis Depo. 24 21 & Ex. 5 (listing institution as USP Lewisburg).) 22 12. The November 2018 Appeal contained, among other things, the following statements: 23 a. “On May 14, 2018, I was really sexually assaulted by officers, while they (Lt. 24 Martinez, J. Ramos Jr., M. Fontes, A. Fontes, K. Miller, Mr. Lopez and Lt. Mr. 25 Hamilton was occupying the camera) were placing me in ambulatory restraints in 26 the SHU of U.S.P. Atwater, on B-range in Cell #126 at approximately 12:45pm.” 27 b. “On July 27, 2018 at approximately 7:30am, where officers Mr. M. Fontes and 28 Mr. Pavey, placed two (2) active Mexican gang members in my recreation cage and 1 told them to murder me because I’m a snitch.” 2 c. “Mr. M. Fontes and Mr. Pavey knew I was on protective custody status and 3 wasn’t supposed to be in the recreation cages with anyone except for my cellmate or 4 other protective custody inmates.” 5 (Willis Depo. Ex. 5.) 6 13. On January 28, 2019, the Bureau of Prisons received an SF 95 form from Willis dated 7 January 10, 2019 (the “January 2019 Claim”). (Vickers Decl. ¶ 8 & Ex. 5; Willis 8 Depo. 27-28 & Ex. 4.) 9 14. Willis prepared the January 2019 Claim while at USP Lewisburg. (Vickers Decl. Ex. 10 5; Willis Depo. 24-25, 27-28 & Ex. 4 (listing address as USP Lewisburg).) 11 15. The January 2019 Claim included 30 pages of medical and psychology records from 12 June 26; July 6, 27, and 30; and August 2, 6, 8, 12, 13, and 14, 2018. (Vickers Decl. 13 Ex. 5; Willis Depo. 27- 28 & Ex. 4.) 14 16. In December 2018, Willis requested that the prison medical and psychological 15 services provide him with the medical and psychological records that he subsequently 16 attached to his January 2019 Claim. (Willis Depo. 37-39.) 17 17. The January 2019 Claim asserted $1 trillion in damages. (Vickers Decl. Ex. 5; Willis 18 Depo. Ex. 4.) 19 18. The January 2019 Claim contained, among other things, the following statements: 20 a. “These enclosed documents proves [sic] physical, mental and emotional injuries that 21 I’ve experienced for the reporting and filing of the sexual assault that occurred on May 22 14, 2018…see Admin. Claim No. TRT-WXR-2018-15543.” 23 b. Willis identified those he had reported the alleged sexual assault to as the Western 24 Regional Office, the U.S. Department of Justice, USP Atwater’s psychology 25 department, Capt. B. Hurte, Capt. Schank, SIS, SIA, Mr. Lyons, Mr. Castaneda, Ms. J. 26 Isho, Lt. P. Scott, Lt. Zaragoza, Mr. Heldman, Mr. S. Spears (RN/IDC/IOP), Mr. Z. 27 Ballesil (RN), and Mr. Alatery (MA). 28 c. Willis identified “the perpetrators of this viscious [sic] sexual assault” as 1 “Lieutenant Mr. Hamilton (camera operator), Lieutenant Mr. Martinez, Mr. J. Ramos 2 Jr., Mr. A Fontes, Mr. M. Fontes, Mr. K. Miller, Mr. Lopez” 3 d. “On July 27, 2018, at approximately 7:30am, during the pulling of recreation of C. 4 Range, of the Special Housing Unit, of U.S. Penitentiary Atwater, the recreation 5 officer Mr. M. Fontes . . . knew that I was on protective custody status . . . but . . . took 6 it upon himself to deliberately place two (2) active Mexican gang members in my 7 recreation cage (see camera from this incident), and ordered them to murder me and 8 they attacked me.” 9 (Vickers Decl. Ex. 5; Willis Depo. Ex. 4.) 10 19. The January 2019 Claim asserts numerous facts that were not in the August 2018 11 Claim, including the following: 12 a. Willis was placed on suicide watch on August 6, 2018 because he was 13 “psychologically frustrated because of sexual assault on May 14, 2018”; 14 b. Willis made “another PREA claim reported to Juliette Bowers Psy. D. on August 8, 15 2018”; 16 c. Willis went on “suicide watch because staff confiscated family photos for filing 17 PREA claims,” which he reported to Dr. Bowers on August 11-14, 2018. 18 (Vickers Decl. Ex. 5, at US 000009; Willis Depo. 29-31 & Ex. 4.) 19 20. The January 2019 Claim was denied on February 14, 2019. (Vickers Decl. ¶ 9 & Ex. 20 6.) 21 21. Aside from the June 2018 Claim, the August 2018 Claim, and the January 2019 22 Claim, the Bureau of Prisons has no record of receiving any SF 95 forms or any other 23 FTCA administrative claims from Willis relating to his time as an inmate from USP 24 Atwater. (Vickers Decl. ¶ 10.) 25 22. Willis filed his Complaint on May 28, 2019. (ECF No. 1.) 26 23. Willis prepared his Complaint using a draft of a complaint that he had started when he 27 was still at USP Atwater, and his medical and psychology records that he had attached 28 to his January 2019 Claim. (Willis Depo. 53-55.) 1 24. Willis did not need to consult any records to know the date of the May 14, 2018 use of 2 force or the July 28, 2018 rec yard incident because he knew those dates from 3 memory. (Willis Depo. 50.) 4 25. The June 2018 and August 2018 Claims are the only FTCA claims involved in this 5 lawsuit. (Willis Depo. 15-16, 32-33.) 6 B. Parties’ Positions 7 Defendant contends that the factual allegations in Plaintiff’s complaint fall into three 8 groups: (1) the alleged May 14, 2018 sexual assault and its immediate aftermath (covered in the 9 June 2018 Claim); (2) the alleged July 27, 2018 retaliation for reporting the assault (covered in 10 the August 2018 Claim); and (3) post-July 2018 assaults, retaliatory actions, and other events. 11 Defendant argues that claims relating to the first two groups are time-barred, and claims relating 12 to the third group are jurisdictionally barred due to failure to exhaust remedies and because 13 Plaintiff has expressly disclaimed that he is suing for damages on those claims. (ECF No. 50-1 at 14 5.) 15 In opposition, Plaintiff contends that he brings this suit under the FTCA based on the two 16 administrative claims that he submitted in June 2018 and August 2018, along with the claim he 17 submitted in January 2019, which he characterizes as a “reconsideration of the August 2018 18 Administrative Claim.” (ECF No. 73 at 1.) As to the August 2018 Claim, Plaintiff challenges 19 Defendant’s assertion that he did not timely file his complaint within six months of the date the 20 claim was denied. Instead, Plaintiff contends that he “filed a reconsideration of the denial of the 21 August 2018 claim” in January 2019,”[t]hereby, restarting the six month statute of limitations 22 with the filing of the Jan. 2019 (reconsideration.).” (Id.) Plaintiff states that the January 2019 23 reconsideration was denied on February 14, 2019, “making the deadline to file a complaint in the 24 District Court – August 14, 2019.” (Id.) Plaintiff notes that he filed the complaint on May 28, 25 2019, and contends that “the August 2019 Claim was saved by the Jan. 2019 reconsideration,” 26 “[t]hereby making the August 2018 claim timely.” (Id. at 2.) As to both the June 2018 Claim and 27 that August 2018 Claim, Plaintiff asserts that the limitations period should be equitably tolled 28 because he needed access to his legal materials, which were in the possession of prison 1 employees and promised to Plaintiff before the deadlines. Plaintiff also claims entitlement to 2 equitable estoppel because he relied on the promises of prison employees regarding his legal 3 materials and refrained from commencing his action within the limitations period. (Id. at 3.) 4 Defendant replies that the January 2019 Claim was not a request for reconsideration of the 5 August 2018 Claim. Defendant also replies that the doctrine of judicial estoppel precludes 6 Plaintiff from taking an inconsistent position and now asserting that the August 2018 Claim was 7 timely. Defendant further contends that Plaintiff has not demonstrated his entitlement to 8 equitable tolling for the July 2018 Claim or the August 2018 Claim because, at a minimum, 9 Plaintiff’s legal materials were not necessary in order to prepare his complaint in this action. 10 Defendant additionally contends that equitable estoppel does not apply. Finally, Defendant 11 argues that Plaintiff has waived all claims and damages for post-July 2018 events, noting that 12 Plaintiff has not opposed the motion for summary judgment as to those events. 13 C. Analysis of Defendant’s Motion 14 According to the undisputed facts, Plaintiff submitted an administrative claim to the 15 Bureau of Prisons on June 12, 2018, regarding an alleged May 14, 2018 sexual assault. (UMF 1; 16 ECF No. 1 at 2.) The claim was denied on September 13, 2018. (UMF 3; ECF No. 1 at 2.) 17 Plaintiff submitted a second administrative claim to the Bureau of Prisons, which was received on 18 August 8, 2018, regarding alleged retaliation on July 27, 2018. (UMF 4-6.) The claim was 19 denied on August 9, 2018. (UMF 7.) Therefore, an action needed to be initiated with a district 20 court on Plaintiff’s second claim no later than February 9, 2019, and no later than March 13, 21 2019, on his first claim. ( 28 U.S.C. § 2401 (b); UMF 8.) Plaintiff did not file the complaint in this 22 action until May 28, 2019. (ECF No. 1.) 23 1. June 2018 Claim 24 Plaintiff does not dispute that absent equitable relief, his June 2018 Claim relating to the 25 alleged May 14, 2018 sexual assault is untimely. (See ECF No. 73 at 2.) Plaintiff appears to 26 contend that application of the doctrines of equitable tolling and/or equitable estoppel are 27 warranted. 28 As to equitable tolling, Plaintiff suggests that he could not prepare his complaint without 1 access to his “legal materials,” which were in the possession of the prison employees at USP 2 Lewisburg. (ECF No. 73 at 2.) Plaintiff indicates that he did not receive his legal materials until 3 April 5, 2019, (ECF No. 73 at 15), which is after the March 13, 2019 limitations deadline. 4 As previously indicated, the six-month limitations period is subject to equitable tolling. 5 Wong, 575 U.S. at 412, 419. In order to demonstrate equitable tolling, a plaintiff must show that 6 (1) he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood 7 in his way. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013), aff'd and remanded 8 sub nom. United States v. Wong, 575 U.S. at 405. The standard is very high. See Irwin v. Dep’t of 9 Veterans Affairs, 498 U.S. 89, 96 (1990) (“a garden variety claim of excusable neglect” is not 10 enough to show equitable tolling); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380 , 384-86 (9th 11 Cir. 1996) (affirming rejection of equitable tolling argument where plaintiff did not diligently 12 pursue her claim by filing suit on time). The burden is on the plaintiff to show that equitable 13 tolling is appropriate. United States v. Marolf, 173 F.3d 1213 , 1218 n.3 (9th Cir. 1999). 14 Plaintiff has failed to make such a showing here. Plaintiff asserts that he needed his “legal 15 materials” to prepare the complaint, but the undisputed factual evidence belies such a contention. 16 Plaintiff asserts that he “did not have enough information in his possession to file a well-pleaded 17 complaint,” (ECF No. 73 at 6), but the undisputed evidence reflects that Plaintiff prepared his 18 complaint using the medical and psychological records he had in possession at the time of his 19 January 2019 Claim. (UMF 15, 23.) Plaintiff proffers no explanation as to why he could not 20 have timely filed his complaint with these records before the March 13, 2019 deadline. As 21 Defendant contends, Plaintiff cannot plausibly claim that an extraordinary circumstance 22 prevented him from preparing his complaint when, by his own admission, he already had the 23 essential materials to prepare it and file it on time. See, e.g., Gutierrez v. Hill, No. 22CV141324 JO-LR, 2023 WL 6215291 , at *4 (S.D. Cal. Sept. 25, 2023) (rejecting application of equitable 25 tolling where habeas petitioner failed to show that deprivation of legal materials prevented him 26 from filing a timely petition). 27 Plaintiff appears to claim that he needed from his legal materials the “dates and times” he 28 “spoke to numerous U.S.P. Atwater employees regarding the May 14, 2018 sexual assault” to file 1 a well-pleaded complaint. (ECF No. 73 at 6.) It is not evident that this information was 2 necessary to file a well-pleaded complaint concerning the alleged May 14, 2018 sexual assault. 3 The undisputed evidence reflects that prior to the filing deadline, and without access to any “legal 4 materials,” Plaintiff prepared and submitted documents in November 2018 and January 2019 5 containing all material facts and relevant details of the alleged May 14, 2018 sexual assault— 6 including the date and time, the officers involved, and the cell block and number where it 7 occurred. (UMF 12, 18, 23.) The January 2019 Claim also included relevant information 8 regarding to whom Plaintiff reported to the alleged sexual assault. (UMF 18.b.) 9 Plaintiff has not demonstrated that he pursued his rights diligently or, critically, that it was 10 impossible to file a timely complaint because of some exceptional circumstance. Accepting that 11 Plaintiff diligently requested his legal materials after his transfer to USP Lewsiburg, (see, e.g., 12 Doc. 73 at 10, Willis Decl. ¶¶ 11-14, 16, 21), the undisputed evidence reflects that Plaintiff knew 13 of the relevant filing deadlines, he had the necessary information to prepare and file a complaint 14 relating to the alleged May 14, 2018 assault in a timely manner, and he successfully submitted 15 other documents containing all material and relevant facts. (UMF 8, 10-12, 13-18, 23.) There is 16 no indication that the delay in receiving his legal materials wholly prevented him from or made it 17 impossible for him to timely file a complaint. Ramirez v. Yates, 571 F.3d 993, 1011 (9th Cir. 18 2009) (determining petitioner not entitled equitable tolling where petitioner offered no 19 explanation why restricted access to materials made it impossible for him to timely file petition 20 but not other legal filings). For these reasons, the Court concludes that the doctrine of equitable 21 tolling does not apply. 22 Plaintiff also avers that he was unable to file a well-pleaded complaint before the 23 limitations period expired because of the actions of prison employees. To that end, Plaintiff 24 claims that prison employees promised him that he would have his legal materials before the 25 deadlines, he relied on these promises, and “[b]ecause of such reliance refrained from 26 commencing an action within the limitations period.” (ECF No. 73 at 2.) Plaintiff therefore 27 suggests that equitable estoppel tolls the limitations period. (ECF No. 73 at 3.) 28 Equitable estoppel applies “when a plaintiff who knows of his cause of action reasonably 1 relies on the defendant’s statements or conduct in failing to bring suit.” Stitt v. Williams, 919 F.2d 2 516, 522 (9th Cir. 1990); see also Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1009 (9th Cir. 3 2011), as amended (Aug. 19, 2011) (explaining doctrine of equitable estoppel focuses primarily 4 on the action taken by the defendant in preventing a plaintiff from filing suit). The doctrine of 5 equitable estoppel is often referred to as fraudulent concealment. Est. of Amaro v. Cty of Oakland, [6] 653 F.3d 808, 813 (9th Cir. 2011). To demonstrate an entitlement to equitable estoppel, a 7 plaintiff must show: (1) knowledge of the true facts by the party to be estopped, (2) intent to 8 induce reliance or actions giving rise to a belief in that intent, (3) ignorance of the true facts by 9 the relying party, and (4) detrimental reliance. Bolt v. United States, 944 F.2d 603, 609 (9th Cir. 10 1991). Additionally, for the government to be estopped “there must be affirmative misconduct 11 (not mere negligence) and a serious injustice outweighing the damage to the public interest of 12 estopping the government.” Id. 13 Plaintiff has failed to produce evidence from which a reasonable jury could conclude that 14 the actions of prison employees prevented him from a full understanding of the true facts of the 15 alleged May 14, 2018 assault, as evidenced by his November 2018 Appeal and January 2019 16 Claim.4 (UMF 12, 18.) Plaintiff also has failed to produce evidence that he was unaware of the 17 deadline to file his FTCA claim regarding the alleged May 14, 2018 sexual assault. (UMF 8.) 18 Further, Plaintiff offers no evidence that prison employees engaged in affirmative misconduct. 19 There is nothing in the record to indicate that prison employees prevented Plaintiff from filing 20 suit—even if prison employees at USP Lewisburg did not provide Plaintiff with requested legal 21 materials before the March 13, 2019 deadline. Equitable estoppel requires action taken by a 22 defendant to prevent a potential plaintiff from filing suit. See Johnson v. Henderson, 314 F.3d 23 409, 414 (9th Cir. 2002). Plaintiff asserts, in a conclusory fashion, that prison employees 24 intended to prevent him from filing before the limitations period and that their motive was to 25 mislead him from filing. (ECF No. 73 at 7.) These conclusory assertions are not sufficient. [26] 4 See, e.g., Crane v. Rodriguez, No. 2:15-cv-0208 TLN KJN P, 2023 WL 113773 , at *8 (E.D. Cal. Jan. 5, 27 2023), report and recommendation adopted, No. 2:15-cv-00208 TLN KJN, 2023 WL 2666709 (E.D. Cal. Mar. 28, 2023) (concluding doctrine of fraudulent concealment/equitable estoppel not applicable where 28 defendant’s actions “did not deprive plaintiff of a full understanding of his claims”). 1 Plaintiff also contends that various prison employees promised that he would receive his legal 2 materials before the deadlines, and he relied on those statements, refraining from filing his 3 complaint. (ECF No. 73, Willis Decl. ¶¶ 413, 15, 17, 21, 42 (“I relied on the act, promises and 4 misrepresentations . . . and because of such reliance refrained from commencing action within the 5 limitations period.”). However, “[t]o satisfy the fourth element of estoppel, the detrimental 6 reliance must be reasonable.” Nickelson v. United States, No. CV 14-3654 (AJW), 2016 WL 7 6495358, at *4 (C.D. Cal. Nov. 2, 2016), judgment entered, No. CV 14-3654 (AJW), 2016 WL 8 6518425 (C.D. Cal. Nov. 2, 2016). There is no evidence or information suggesting that prison 9 employees’ statements or promises regarding the provision of his legal materials would have led 10 Plaintiff to reasonably believe that he did not need to timely file a complaint. There is no 11 indication the prison employees misrepresented Plaintiff’s FTCA filing deadlines or promised 12 that any late filing would be accepted or otherwise excused. See Lukovsky v. City & Cnty. of San 13 Francisco, 535 F.3d 1044, 1052 (9th Cir. 2008) (denying application of equitable estoppel where 14 plaintiffs failed to point to any misrepresentation that concealed basis of claims or “any promise 15 by which the Defendants discouraged plaintiffs from timely asserting their rights”). For these 16 reasons, the Court finds that the doctrine of equitable estoppel is not applicable. 17 The Court concludes that Plaintiff’s claims relating to the alleged May 14, 2018 sexual 18 assault and covered in his June 2018 Claim are time barred. 19 2. August 2018 Claim 20 Plaintiff contends that he filed for reconsideration of the August 2018 Claim in January 21 2019,”[t]hereby, restarting the six month statute of limitations with the filing of the Jan. 2019 22 (reconsideration.).” (ECF No. 73 at 1 .) Plaintiff states that the January 2019 reconsideration was 23 denied on February 14, 2019, arguing this made “the deadline to file a complaint in the District 24 Court – August 14, 2019.” (Id. at 2.) Plaintiff filed the complaint on May 28, 2019, and contends 25 that “the August 2019 Claim was saved by the Jan. 2019 reconsideration,” “[t]hereby making the 26 August 2018 claim timely.” (Id.) Plaintiff further argues that the January 2019 Claim was a 27 proper reconsideration, did not allege any new claims, is part of this action, and restarts the statute 28 of limitations. (ECF No. 73 at 4-5.) 1 The parties dispute whether Plaintiff’s January 2019 Claim is a proper reconsideration of 2 the August 2018 claim. The Court finds it unnecessary to address this issue, however, as it finds 3 Defendant’s argument regarding judicial estoppel persuasive. Defendant contends that the Court 4 should resist crediting Plaintiff’s argument regarding reconsideration because Plaintiff took a 5 directly inconsistent position for nearly two years before this Court and the Ninth Circuit. 6 Defendant points out that Plaintiff previously conceded that the August 2018 Claim was time7 barred absent equitable relief. Defendant cites, among other examples, the following: 8 • Willis’s Motion for Extension of Time to file his Complaint after the limitations period, filed on the same day as his Complaint, did not reference the January 2019 9 Claim and repeatedly identified a February 9, 2019 deadline to file suit on his August 2018 Claim. ECF No. 4, at 1, 3-8. He stated that by April 5, 2019, “my 10 deadlines had already come and went,” and he argued only that he should be permitted to file his Complaint after the statute of limitations due to “excusable 11 neglect.” ECF No. 4, at 7. 12 • Willis’s Ninth Circuit appellate brief explicitly stated that he had to file an action “no later than February 9, 2019 on his second [August 2018] claim,” and that he 13 “missed” the deadline and “was prevented from filing his FTCA lawsuit until after the statute of limitations had run out.” 9th Cir. No. 20-15127, Dkt. No. 14, at 3, 10, 14 41, 48; see also id. at 28, 48 (identifying February 2019 filing deadline, which “had been missed”). He again argued only that he was entitled to equitable tolling 15 or equitable estoppel, and he never mentioned the January 2019 Claim. Id. at 14, 18. He also asserted that he was asserting only $5 million on the “second FTCA 16 claim,” rather than the $1 trillion in the January 2019 Claim. Id. at 13.5 [17] (ECF No. 74 at 6-7.) Defendant therefore avers that Plaintiff should be judicially estopped from [18] now taking a different legal position that his August 2018 Claim was timely filed. (Id. at 7.) [19] Judicial estoppel is “an equitable doctrine invoked by a court at its discretion,” the [20] purpose of which is “to protect the integrity of the judicial process by prohibiting parties from [21] deliberately changing positions according to the exigencies of the moment.” New Hampshire v. [22] Maine, 532 U.S. 742 , 749–50 (2001) (internal quotation marks and citation omitted). When [23] applying the doctrine of judicial estoppel courts consider: “(1) whether a party’s position in the [24] later judicial proceeding is clearly inconsistent with that party’s earlier position, (2) whether the [25] party persuaded the first court to accept the earlier position, so that judicial acceptance of an [26] 27 5 The Court may take judicial notice of the records of other courts. See Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“We may take judicial notice of undisputed matters of public record, including 28 documents on file in federal or state courts.”); U.S. v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 inconsistent position in a later proceeding would create the perception that one of the two courts 2 was misled, and (3) whether the party seeking to assert an inconsistent position would derive an 3 unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Randle v. 4 Crawford, 604 F.3d 1047 , 1053–54 (9th Cir. 2010). 5 Considering the relevant factors, the Court concludes that application of the doctrine of 6 judicial estoppel is warranted. With respect to the first factor, Plaintiff’s current position is 7 inconsistent with his earlier position in this litigation and as expressed to the Ninth Circuit. 8 Plaintiff previously conceded that the August 2018 Claim was not timely filed and that he was 9 seeking equitable relief. (See Willis v. United States of America¸ 9th Cir. No. 20-15127, Dkt. No. 10 14 at 3 and 10 (admitting action needed to be initiated with district court on August 2018 claim 11 no later than February 9, 2019), 14 and 18 (asking court of appeals to review “to see if equitable 12 tolling and/or equitable estoppel should apply to this action/case), 41 (asserting that he suffered 13 injury because he was prevented from filing his FTCA lawsuit “until after the statute of 14 limitations had run out”.) Plaintiff now contends that the August 2018 Claim is timely, as it was 15 saved by a request for reconsideration. (ECF No. 73 at 2 [“The August 2018 Claim was saved by 16 the Jan. 2019 reconsideration. Thereby, making the August 2018 Claim timely.”].) These 17 positions—untimely versus timely—are not consistent. With respect to the second factor, 18 Plaintiff persuaded the Ninth Circuit to accept his position that his August 2018 Claim was time 19 barred absent equitable tolling. Indeed, in considering Plaintiff’s appeal, the Ninth Circuit 20 determined that it was “not evident at [the] early stage of proceedings that equitable tolling would 21 not apply to extend the limitations period,” thereby implicitly accepting Plaintiff’s position that 22 the action was otherwise time barred. (ECF No 23 at 2.) With respect to the third factor, 23 Plaintiff’s inconsistent position results in an unfair advantage by allowing him to assert multiple 24 inconsistent or otherwise incompatible bases to evade the limitations period. These factors favor 25 application of judicial estoppel. 26 Plaintiff also argues that he is entitled to equitable relief from the limitations period for his 27 August 2018 Claim. The Court disagrees. As to equitable tolling for the August 2018 Claim, 28 Plaintiff appears to assert that he needed information from his legal materials of “the dates and 1 times of the harrassment [sic] leading up to the date of the July 27, 2018 orchestrated attempted 2 murder/assault” to file a well-pleaded complaint. (ECF No. 73 at 6.) However, it is not evident 3 that factual allegations of purported harassment prior to July 27, 2018, were necessary to file a 4 well-pleaded complaint regarding the events alleged to have occurred on July 27, 2018. The 5 undisputed evidence reflects that prior to the filing deadline, and without access to any “legal 6 materials,” Plaintiff prepared and submitted documents in November 2018 and January 2019 7 containing the material facts and relevant details of the alleged retaliation on July 27, 2018, 8 including what happened, when it happened, and who was involved. (UMF 12.b., 12.c., 18.d.) 9 Insofar as Plaintiff argues that he is entitled to application of the doctrine of equitable 10 estoppel as to his August 2018 Claim, this argument fails for the same reasons discussed above as 11 for his June 2018 Claim. 12 For these reasons, the Court concludes that Plaintiff is judicially estopped from asserting 13 that his August 2018 Claim is timely based on purported reconsideration. The Court further 14 concludes that Plaintiff is not entitled to application of the doctrines of equitable tolling or 15 equitable estoppel. Accordingly, Plaintiff’s claims relating to the alleged July 27, 2018 retaliation 16 and covered in his August 2018 Claim are time barred. 17 3. Post-July 2018 Events 18 Although Plaintiff’s complaint references numerous alleged acts of retaliation after July 19 2018, Plaintiff has testified that he is not seeking damages for those acts or basing his suit on 20 them. (UMF 25.) Plaintiff also has not opposed Defendant’s Motion for Summary Judgment as 21 to post-July 2018 events. The Court therefore will grant this portion of Defendant’s motion for 22 summary judgment. 23 IV. CONCLUSION AND ORDER 24 Based on the above, Defendant’s motion for summary judgment (ECF No. 50) is 25 GRANTED. IT IS SO ORDERED. [26] 27 Dated: April 9, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE