FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  June 14, 2011
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court


    SEDRICK LATROY MCKINNEY,

                Plaintiff-Appellant,

    v.                                                   No. 10-1478
                                            (D.C. No. 1:07-CV-00838-PAB-KMT)
    UNITED STATES OF AMERICA,                             (D. Colo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.


         Sedrick Latroy McKinney, a federal prisoner proceeding pro se, appeals

from the district court’s dismissal of his action on statute of limitations grounds,

its denial of his motion to compel discovery, and its denial of a post-judgment

motion he filed under Federal Rule of Civil Procedure 59(e). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND 1

      McKinney filed a complaint under the Federal Tort Claims Act, 28 U.S.C.

§§ 1346, 2671-80 (FTCA), alleging injuries arising from his imprisonment in a

federal prison. More specifically, he claimed that while incarcerated at the

United States Penitentiary in Florence, Colorado, officials of the Federal Bureau

of Prisons (BOP) housed him in a cell with Richie Hill. Hill assaulted McKinney.

McKinney claimed BOP officials breached a duty of care in housing him with

Hill because they knew Hill was on disciplinary segregation and posed a danger

toward cell mates.

      The United States moved to dismiss under Federal Rule of Civil Procedure

12(b)(1) based on the two-year and six-year statutes of limitations set out in

28 U.S.C. § 2401. Section 2401(a) provides that “every civil action commenced

against the United States shall be barred unless the complaint is filed within six

years after the right of action first accrues.” Section 2401(b) provides:

      A tort claim against the United States shall be forever barred unless
      it is presented in writing to the appropriate Federal agency within
      two years after such claim accrues or unless action is begun within
      six months after the date of mailing, by certified or registered mail,
      of notice of final denial of the claim by the agency to which it was
      presented.



1
       The background facts are taken from McKinney’s amended complaint and
the parties’ other filings. Because McKinney has proceeded pro se throughout
this case, we afford his filings a liberal construction but do not act as his
advocate. See Yang v. Archuleta, 

, 927 n.1 (10th Cir. 2008).

                                         -2-
These limitations periods are jurisdictional. Cizek v. United States, 

, 1233 (10th Cir. 1992).

      After reviewing the allegations, a magistrate judge recommended that the

motion be granted. Observing that, outside of the medical malpractice context,

FTCA claims generally accrue on the date of the injury’s occurrence, Cannon v.

United States, 

, 1190 (10th Cir. 2003), the magistrate judge

concluded that McKinney’s FTCA claim accrued on March 9, 2000, when the

attack took place. Consequently, under the two-year statute of limitations in

§ 2401(b) and the requirements of 28 U.S.C. § 2675(a), 2 McKinney had to

adequately present his tort claim to the BOP within two years, i.e., by March 9,

2002, or his claims would be forever barred. The administrative presentation of a

claim under the FTCA requires a claimant to provide “written notification of an


2
      Section 2675(a) is part of the FTCA and provides:

      An action shall not be instituted upon a claim against the United
      States for money damages for injury or loss of property or personal
      injury or death caused by the negligent or wrongful act or omission
      of any employee of the Government while acting within the scope of
      his office or employment, unless the claimant shall have first
      presented the claim to the appropriate Federal agency and his claim
      shall have been finally denied by the agency in writing and sent by
      certified or registered mail. The failure of an agency to make final
      disposition of a claim within six months after it is filed shall, at the
      option of the claimant any time thereafter, be deemed a final denial
      of the claim for purposes of this section. The provisions of this
      subsection shall not apply to such claims as may be asserted under
      the Federal Rules of Civil Procedure by third party complaint,
      cross-claim, or counterclaim.

                                         -3-
incident, accompanied by a claim for money damages in a sum certain for injury

to or loss of property, personal injury, or death alleged to have occurred by reason

of the incident.” 28 C.F.R. § 14.2(a).

      Examining whether McKinney made any attempts to present his claim to

the BOP, the magistrate judge first considered a BP-10 Regional Administrative

Remedy Appeal (BP-10) McKinney filed with prison officials on June 26, 2000.

The BP-10 is not in the record, but the response by the Regional Director

indicates McKinney alleged that prison “staff placed [his] life at risk when [he

was] placed in the Special Housing Unit, in an overcrowded cell, and with a

psychologically disturbed inmate who was on disciplinary segregation status,

while [McKinney was] on administrative detention status.” R., Vol. 1 at 285.

The Regional Director rejected these contentions, stating that “[p]rior to you

being assaulted, there were no separation concerns with the inmates you were

being housed with on March 9, 2000.” 

Director also stated that

“[a]ccording to the Special Housing Unit records, there is no evidence to prove

the two of you were being housed together in a cell while you were on

administrative detention status and your cell mate was on disciplinary segregation

status.” 

Director further noted that, because McKinney had not

requested any remedy, the response to his BP-10 was “for information purposes

only.” 

judge concluded that the absence of any request for




                                         -4-
“damages in a sum certain” rendered this attempt at presenting his FTCA claim

insufficient under 28 C.F.R. § 14.2(a).

      The magistrate judge next considered whether an administrative tort claim

McKinney filed with the BOP on April 17, 2006, satisfied the presentation

requirements. Because this claim was filed nearly four years after the two-year

statute of limitations had run, the magistrate judge concluded that this attempt

was untimely and therefore did not satisfy § 2401(b).

      The magistrate judge also considered whether a civil suit McKinney filed

against prison officials on March 13, 2002, met the presentation requirements.

However, the magistrate judge concluded that filing the suit, which concerned the

assault, did “‘not constitute adequate notice to the federal agency’ as required by

§ 2675(a),” R., Vol. 1 at 324 n.7 (quoting 

), and that, in

any event, it was filed outside the two-year limitations period of § 2401(b).

      Based on McKinney’s failure to adequately present his claim to the BOP

within two years of its accrual, the magistrate judge concluded that § 2401(b)

forever barred his claim unless he could show that it accrued at a later date. To

that end, the magistrate judge considered two other arguments: (1) that accrual of

the claim should be governed by the “discovery rule,” under which “an FTCA

claim accrues at the time when a reasonably diligent plaintiff would have known

of the injury and its cause,” 

; and (2) that the statute of

limitations should be equitably tolled. In support of these arguments, McKinney

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claimed BOP officials fraudulently concealed documents in Hill’s central file

showing that, contrary to the statements in the response to McKinney’s BP-10,

Hill was on disciplinary segregation at the time he was confined with McKinney

and therefore it was foreseeable that he posed a violent threat to any cell mate.

McKinney apparently uncovered this evidence as a result of deposing Hill on

December 8, 2008, in his civil suit and claimed it showed that BOP officials

lulled him into inaction with regard to his tort claim. In his deposition, Hill

stated, among other things, that he had seen a BOP memorandum warning prison

staff not to house him with other inmates because of his mental illness and violent

tendencies.

      The magistrate judge rejected these arguments, recognizing that “‘accrual

need not await awareness by the plaintiff that his injury was negligently

inflicted.’” R., Vol. 1 at 325 (alteration and internal quotation marks omitted)

(quoting Bradley v. U.S. ex rel. Veterans Admin., 

, 270 (10th Cir.

1991)). The magistrate judge also noted several other applicable legal principles.

Under the FTCA, “‘a claimant is aware of [an] injury once apprised of the general

nature of the injury,’” and “‘the discovery rule[] applies only in the exceptional

case where a reasonably diligent plaintiff could not immediately know of the

injury and its cause.’” R., Vol. 1 at 325-26 (alterations and internal quotation

marks omitted) (quoting 

). “‘[T]he discovery rule

should be applied only when the injury is unknowable by its very essence, i.e., its

                                          -6-
existence at the critical moment simply cannot be ascertained.’” R., Vol. 1 at 326

(brackets in original) (internal quotation marks omitted) (quoting Dahl v. United

States, 

, 1229 (10th Cir. 2003)).

      Applying these principles, the magistrate judge ruled that the essence of

McKinney’s injury did not render it unknowable or unascertainable at the time it

occurred or by the time he filed his BP-10 on June 26, 2000. The magistrate

judge also concluded that there was no indication that BOP officials lulled

McKinney into inaction and prevented him from filing an administrative tort

claim, nor was this an exceptional case because, by the time McKinney filed his

BP-10, it was clear he “believed that BOP officials were responsible for his

injuries.” R., Vol. 1 at 326.

      The magistrate judge next considered the six-year limitations period of

§ 2401(a) and determined that, regardless of whether McKinney’s FTCA claim

accrued on March 9 or June 26, 2000, his first complaint, filed on April 24, 2007,

was untimely even if his cause of action was not barred by § 2401(b).

      Finally, the magistrate judge denied McKinney’s “Motion for Order

Compelling Disclosure of Trial Exhibits from Inmate Ritchie Hill’s Central File,”

reasoning that the materials concerned the merits of a case the magistrate judge

was recommending for a jurisdictional dismissal.

      The district judge accepted the magistrate judge’s recommendation over

McKinney’s objections. The district judge noted that McKinney “object[ed] on

                                        -7-
the ground that the limitations period should be tolled because prison officials

concealed the nature of their involvement in housing [him] with the mentally

disturbed inmate.” R., Vol. 1 at 365. The district judge rejected this contention,

concluding that the FTCA clock began to run when McKinney was injured

regardless of whether he then knew or suspected that prison officials acted

negligently in housing him with Hill. Moreover, the district judge said, even if

the discovery rule applied, McKinney accused prison staff of culpability in the

BP-10 he filed on June 26, 2000, and therefore sufficiently suspected, at that

time, that they were responsible for his injury. Measuring from that date, the

district judge determined that McKinney’s April 2006 administrative tort claim

was filed well beyond the two-year limitation of § 2401(b) and therefore did not

satisfy the FTCA’s exhaustion requirement. Because the district judge agreed

with the recommendation to dismiss for lack of jurisdiction, he also affirmed the

magistrate judge’s denial of McKinney’s motion to compel.

      McKinney filed a Rule 59(e) motion, arguing that the district court had

overlooked his “claim” of fraudulent concealment, which he again contended

tolled the statute of limitations. The district court denied the motion, pointing out

that it had in fact addressed and rejected McKinney’s argument. McKinney then

filed this appeal.




                                         -8-
II.   DISCUSSION

      We review de novo a district court’s dismissal for lack of jurisdiction. U.S.

West, Inc. v. Tristani, 

, 1206 (10th Cir. 1999). But we review for

abuse of discretion its decision regarding equitable tolling, Alexander v.

Oklahoma, 

, 1215 (10th Cir. 2004), its denial of a motion to compel

discovery, Regan-Touhy v. Walgreen Co., 

, 647 (10th Cir. 2008), and

its denial of a Rule 59(e) motion, Phelps v. Hamilton, 

, 1324

(10th Cir. 1997).

      McKinney argues that the district court erred in (1) denying his motion to

compel because he needed the information in Hill’s central file to support his

fraudulent concealment claim; (2) denying his Rule 59 motion because the district

court failed to address his fraudulent concealment claim; and (3) granting

defendant’s motion to dismiss because the jurisdictional question arises from the

same statute as does his substantive claim, and the two questions are intertwined.

In support of his third argument, he relies on Holt v. United States, 

,

1003 (10th Cir. 1995), to argue that a motion to dismiss under Rule 12(b)(1) is

inappropriate in this context. He further contends that statutory congruity of

jurisdiction and the merits permits dismissal only when “‘the claim is immaterial,

insubstantial, or frivolous.’” Aplt. Opening Br. at 16 (quoting Fanoele v. United

States, 

, 824 (D. Kan. 1995)).




                                         -9-
      Having thoroughly reviewed the record, the parties’ arguments, and the

controlling law, we affirm the district court’s dismissal, its denial of McKinney’s

motion to compel, and its denial of his Rule 59(e) motion for substantially the

same reasons stated in the magistrate judge’s recommendation, the district court’s

dismissal order, and the district court’s order denying the post-judgment motion.

      We add only three comments.

      First, McKinney has not explained how discovery of the documents in

Hill’s central file would have furthered his equitable tolling argument. Moreover,

it appears from the record that he was able to adequately apprise the district court

of the basis for his argument without them. Thus, we see no abuse of discretion

in the denial of his motion to compel discovery of those documents.

      Second, to the extent McKinney contends that he set out a separate claim of

fraudulent concealment in his complaint, it is clear from the record that he only

raised fraudulent concealment as a justification for equitable tolling of the statute

of limitations. The district court addressed this argument in its decision, and

therefore the district court did not abuse its discretion in denying the Rule 59(e)

motion.

      Finally, the district court properly resolved this case under Rule 12(b)(1).

Conversion of a Rule 12(b)(1) motion to one under Rule 12(b)(6) or to one for

summary judgment is not required simply because “the merits and the

jurisdictional issue arise under the same statute. Rather, the underlying issue is

                                         -10-
whether resolution of the jurisdictional question requires resolution of an aspect

of the substantive claim.” Sizova v. Nat’l Inst. of Standards & Tech., 

, 1324 (10th Cir. 2002) (quotation omitted). Here, the district court was not

required to resolve McKinney’s substantive claim—whether prison officials acted

negligently in housing him with Hill—when deciding whether McKinney timely

presented an administrative claim or filed this action. Cf. 

(explaining that exhaustion of administrative remedies is not part of a substantive

discrimination claim under Title VII). Thus, McKinney’s reliance on Fanoele for

the proposition that the district court could not dismiss this case unless it

considered his claims immaterial, insubstantial, or frivolous, is misplaced.

       The judgment of the district court is AFFIRMED. McKinney’s motion to

proceed on appeal in forma pauperis is granted, and we remind him of his

obligation to continue making partial payments until his appellate filing fee is

paid in full.


                                                      Entered for the Court



                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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