Clark v. USA

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 16, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30932
Summary Calendar
MABON CLARK,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
Case No. 6:05-CV-1853
_________________________________________________________________
Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
While hospitalized at a Veterans Administration (“VA”)
hospital in Alexandria, Louisiana, in 2001, Appellant Mabon Clark
alleges that he was negligently over-medicated and fell, causing
him permanent mental and physical impairment. Clark filed a
personal injury claim with the VA under the Federal Tort Claims Act
(“FTCA”), on September 23, 2002. See 28 U.S.C. § 1346(b). The
VA’s Regional Counsel denied the claim on March 10, 2004, and the
Office of General Counsel denied it on review. The VA General

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1In the district court, he argued that the chaos created by
Hurricane Katrina justifies equitable tolling, but the storm made
landfall thirteen days after the August 16 filing deadline
elapsed.
2
Counsel informed Clark in a notice dated February 16, 2005, that he
could file suit in federal district court within the six-month
statute of limitations. See 28 U.S.C. § 2401(b). That six-month
period expired on August 16. Clark, however, did not file suit
until October 25, more than two months late.
We find no support for Clark’s argument that his untimely
filed lawsuit is nonetheless preserved because the circumstances of
the instant case merit equitable tolling. See Clymore v. United
States, 217 F.3d 370 (5th Cir. 2000); Perez v. United States,
167 F.3d 913 (5th Cir. 1999). Clymore and Perez stand for the
proposition that equitable tolling is available to plaintiffs who
“actively pursued judicial remedies but filed a defective
pleading.” Clymore, 217 F.3d at 375 (quoting Perez, 167 F.3d at
917). Clark does not fall within this holding.
Moreover, Clark’s asserted participation in ongoing
settlement negotiations with the VA is irrelevant to the operation
of equitable tolling because he has offered no evidence of
misconduct on the part of the VA.1 See Perez, 167 F.3d at 917
(equitable tolling appropriate when “the complainant has been
induced or tricked by his adversary’s misconduct into allowing the
filing deadline to pass.”). Finally, although his counsel’s
untimely filing mistake was unfortunate, such mistakes do not

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3
equitably toll the FTCA’s limitations period. Clark’s assertions
of equitable estoppel and the doctrine of laches are likewise
entirely inapplicable to this case.
The district court’s judgment is AFFIRMED.

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