Martin Del Olmo v. U.S. Customs & Border Protc
669 F. App'x 226
| 5th Cir. | 2016Background
- Martin Del Olmo filed an FTCA suit claiming false accusations by federal agents (U.S. Customs and Border Protection).
- The district court dismissed his complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, finding the suit time-barred.
- Del Olmo sought leave to proceed in forma pauperis (IFP) on appeal, which triggered review of whether the appeal was taken in good faith.
- The FTCA requires an administrative claim be filed within two years of accrual and any suit within six months of agency denial (28 U.S.C. § 2401(b)); accrual occurs when plaintiff knows or should know of the injury.
- Record shows Del Olmo knew of the alleged injury in early 2007 but did not file an administrative claim within the two-year period; he filed with the agency only after the limitations period expired.
- The court noted Del Olmo appears to have died during the appeal but declined to pursue substitution because the appeal was frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by sua sponte dismissing the FTCA claim as time-barred | Del Olmo contends dismissal as time-barred was erroneous | The statute of limitations defense may be raised sua sponte in §1915 proceedings; Del Olmo did not timely file an administrative claim | Held: No error; dismissal for failure to comply with §2401(b) was proper |
| Whether appeal is taken in good faith for IFP purposes | Del Olmo seeks IFP, arguing appeal has merit | Court must assess if appeal raises legal points arguable on their merits | Held: Appeal is frivolous; IFP denied |
| Whether substitution of a personal representative is necessary after appellant's death | Implicit: keep appeal alive via substitution | Substitution appropriate only where appeal has merit | Held: No substitution pursued because appeal is frivolous |
Key Cases Cited
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (standard for assessing good-faith IFP appeals)
- Howard v. King, 707 F.2d 215 (5th Cir. 1983) (appeal is in good faith if it raises legal points arguable on their merits)
- Gartrell v. Gaylor, 981 F.2d 254 (5th Cir. 1993) (district courts may raise statute-of-limitations defense sua sponte in §1915 cases)
- Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) (FTCA accrual rule: claim accrues when plaintiff knows or should know of the injury)
- Gamble v. Thomas, 655 F.2d 568 (5th Cir. 1981) (procedure for substitution of a personal representative following a party's death)