A.S. Urmancheev v. United States, et al.

• Court: District Court, S.D. California
• Decided: June 25, 2026
• Docket: 3:22-cv-01039
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 A.S. URMANCHEEV, Case No.: 22-CV-1039 JLS (MMP) #A075117610, 12 ORDER: Plaintiff, 13 v. (1) DENYING AS MOOT MOTION 14 TO SUBSTITUTE EXHIBIT TO

15 MOTION FOR EXTENSION OF UNITED STATES, et al., TIME TO FILE NOTICE OF 16 Defendants. APPEAL (ECF NO. 73); 17 (2) GRANTING MOTION TO SEAL 18 SUBSTITUTE EXHIBIT (ECF NO. 19 74);

20 (3) DENYING AMENDED MOTION 21 FOR RECONSIDERATION (ECF NO. 77); 22

23 (4) DENYING MOTION TO REJECT DECLARATION OF JEANNETTE 24 LITZ (ECF NO. 78); 25 (5) DENYING SUPPLEMENTAL 26 MOTION TO COMPEL 27 STATEMENT OF FACTS (ECF NO. 79); AND 28 1 (6) DENYING AS MOOT MOTION TO EXPEDITE CONSIDERATION 2 ON POST-JUDGMENT MOTIONS 3 (ECF NO. 82)

4 (ECF Nos. 73, 74, 77, 78, 79, 82) 5 6 Presently before the Court are Plaintiff A.S. Urmancheev’s Motion to Substitute 7 Exhibit to Motion for Extension of Time to File Notice of Appeal (ECF No. 73), Motion 8 to Seal or Redact a Substitute Exhibit to Exhibit 1 to Motion for Extension of Time to File 9 Notice of Appeal (ECF No. 74), Motion for Reconsideration of Court’s Order Granting 10 Defendant’s Motion to Dismiss (“Reconsideration Mot.,” ECF No. 77), Motion to Reject 11 Declaration of Jeannette Litz (ECF No. 78), Motion to Compel Subpoena for Declaration 12 of Prison Mail Clerk (ECF No. 79), and Motion to Expedite Consideration and Enter Order 13 Deciding Pending Post-Judgment Motions (ECF No. 82). 14 The Court DENIES AS MOOT Plaintiff’s Motion to Substitute Exhibit to Motion 15 for Extension of Time to File Notice of Appeal (ECF No. 73) because the Court has already 16 granted Plaintiff’s Motion for Extension of Time to File Notice of Appeal. See ECF 17 No. 75. Additionally, the Court DENIES AS MOOT Plaintiff’s Motion to Expedite 18 Consideration and Enter Order Deciding Pending Post-Judgment Motions (ECF No. 82), 19 as the Court now considers Plaintiff’s Motions. 20 The Court GRANTS Plaintiff’s request to seal (ECF No. 74) Exhibit A to Plaintiff’s 21 Motion to Substitute Exhibit to Motion for Extension of Time to File Notice of Appeal, as 22 the exhibit contains Plaintiff’s protected sensitive medical and mental health information. 23 See ECF No. 73, Ex. A at 1; Castro v. United States, No. 23-CV-00629-RBM-BGS, 2023 24 WL 3186285, at *2 (S.D. Cal. May 1, 2023) (finding good cause to seal plaintiff’s medical 25 information). 26 MOTION FOR RECONSIDERATION AND RELATED MOTIONS 27 In the Southern District of California, a party may apply for reconsideration 28 “[w]henever any motion or any application or petition for any order or other relief has been 1 made to any judge and has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i)(1). 2 The moving party must provide an affidavit setting forth, inter alia, “what new or different 3 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 4 such prior application.” Id. “In resolving motions for reconsideration, courts often look to 5 the standard for relief from final judgment set forth in Federal Rules of Civil Procedure 6 59(e) and 60(b), which apply to motions for reconsideration of final appealable orders and 7 relief from judgment.” Evanston Ins. Co. v. Venture Point, LLC, No. 22-CV-1783-KJD- 8 EJY, 2021 WL 5500486, at *1 (D. Nev. Nov. 23, 2021). 9 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 10 discovered evidence, committed clear error, or if there is an intervening change in the 11 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation 12 marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en 13 banc)) (emphasis in original). Reconsideration is an “extraordinary remedy, to be used 14 sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., 15 Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant 16 or deny a motion for reconsideration is in the “sound discretion” of the district court. 17 Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 18 F.3d at 883). A party may not raise new arguments or present new evidence if it could 19 have reasonably raised them earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. 20 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 21 On November 6, 2025, the Court granted Defendant’s Motion to Dismiss (“Order,” 22 ECF No. 66) finding that Plaintiff failed to exhaust his administrative remedies. Order at 23 12. Specifically, the Court found that the “the presentment requirement [of claims under 24 the Federal Tort Claims Act] is not satisfied until the agency receives notice of the claim, 25 not when it is mailed or emailed to the agency.” Id. at 9 (quoting Pena v. Vasquez, No. 24- 26 CV-960-MIS-GBW, 2025 WL 2806812, at *7 (D.N.M. Oct. 2, 2025)). The Court found 27 that while Plaintiff attempted to mail his SF-95, he had the burden to show his claim was 28 received by the proper agency, which he failed to do. Id. at 10. 1 Plaintiff argues that the Court’s prior decision was clear error because the Court 2 relied on Jeannette Litz’s declaration, Plaintiff now presents a sworn declaration that he 3 mailed his SF-95 administrative claim, and the Court wrongly rejected the application of 4 the prison mailbox rule. See generally Reconsideration Mot. 5 I. Litz Declaration 6 First, regarding Ms. Litz’s declaration, Plaintiff also filed a Motion to Reject 7 Declaration of Jeannette Litz (ECF No. 78). Plaintiff argues that Ms. Litz lacked personal 8 knowledge and relied on hearsay and unverified databases without custodian certification. 9 See generally ECF No. 78. Defendant included with its Motion to Dismiss (ECF No. 35) 10 the Declaration of Jeannette Litz (ECF No. 35, Ex. 1, “Litz Decl.”). Ms. Litz is a Paralegal 11 Specialist for the Department of Homeland Security. Litz Decl. ¶ 1. In the Court’s Order 12 dismissing Plaintiff’s Second Amended Complaint, the Court relied on the Litz Declaration 13 for evidence that Plaintiff’s SF-95 related to this case was never received by the agency. 14 Order at 8. 15 Defendant’s Motion was a factual attack on the existence of jurisdiction. See Order 16 at 6. In the case of a factual attack, “the district court may review evidence beyond the 17 complaint without converting the motion to dismiss into a motion for summary judgment.” 18 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “The court need not 19 presume the truthfulness of the plaintiff’s allegations.” Id. After the moving party 20 evidences the lack of subject matter jurisdiction, the party opposing the motion must 21 “present affidavits or any other evidence necessary to satisfy its burden of establishing that 22 the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of Chico, 880 23 F.2d 199, 201 (9th Cir. 1989). In reviewing this extra-pleading evidence, the district court 24 does not abuse its discretion, even if it must ultimately resolve factual disputes between 25 the parties. Id. Therefore, the Court properly considered the Declaration in resolving the 26 Motion. 27 “An affidavit or declaration used to support or oppose a motion must be made on 28 personal knowledge, set out facts that would be admissible in evidence, and show that the 1 affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). 2 Ms. Litz states in her Declaration that as part of her role she “regularly review[s] and 3 work[s] with records pertaining to administrative tort claims submitted to and/or received 4 by the agency.” Litz Decl. ¶ 2. She also “regularly utilize[s] PLAnet, which is the system 5 used by OPLA to maintain all administrative claim records, as well as records related to 6 cases that are in litigation.” Id. Ms. Litz conducted a search of the PLAnet database and 7 states in her Declaration that the only SF-95 claim form the agency received from Plaintiff 8 was dated March 8, 2021, based on different grounds than those alleged here, and received 9 by ICE on or about August 14, 2021. Id. ¶¶ 6–9. As discussed in the Court’s Order, this 10 is not the SF-95 Plaintiff relies on for this case. Order at 8. 11 The Court finds that Ms. Litz’s declaration is based on her personal knowledge and 12 sets forth facts that would be admissible. See Latman v Burdette, 366 F.3d 774, 787 (9th 13 Cir. 2004), abrogated in part on other grounds by Law v. Siegal, 571 U.S. 415 (2014) 14 (personal knowledge is what a witness “actually perceived or observed” (citation omitted)); 15 Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (finding, on summary 16 judgment but discussing declarations, that “a party does not necessarily have to produce 17 evidence in a form that would be admissible at trial, as long as the party satisfies the 18 requirements of Federal Rules of Civil Procedure 56” (citation omitted)). Therefore, 19 Plaintiff’s Motion to Reject Declaration of Jeannette Litz (ECF No. 78) is DENIED, and 20 the Court finds this ground for reconsideration insufficient to warrant modification of the 21 Court’s Order. 22 II. New Declarations 23 Plaintiff next argues that his supplementation of the record “with a sworn declaration 24 executed pursuant to 28 U.S.C. § 1746 attesting to the mailing of the SF-95 administrative 25 claim” is new evidence that is sufficient to provide evidence of mailing. Reconsideration 26 Mot. at 5. As discussed in the Court’s Order, the Ninth Circuit has not applied the prison 27 mailbox rule to satisfy presentment under the FTCA. See Order at 9–12; see also Censke 28 v. United States, 947 F.3d 488, 491–92 (7th Cir. 2020) (applying the prison mailbox rule 1 to FTCA presentment but recognizing that the Ninth Circuit has not adopted a similar rule). 2 Therefore, even if Plaintiff presents evidence of mailing, Plaintiff must also provide 3 evidence of the agency’s receipt of his SF-95, which he did not and continues not to do. 4 See Pena, 2025 WL 2806812, at *7 (“Strictly construing the FTCA’s waiver of sovereign 5 immunity, as the Court must, the Court finds that the presentment requirement is not 6 satisfied until the agency receives notice of the claim, not when it is mailed or emailed to 7 the agency.” (citing Bailey v. United States, 642 F.2d 344, 346–47 (9th Cir. 1981)). 8 Plaintiff also “moves to compel the declaration of the facility mailroom clerk to 9 corroborate the mailing and the entries in the legal-mail log.” Reconsideration Mot. at 5. 10 To do so, Plaintiff filed a Motion to Compel Subpoena for Declaration of Prison Mail Clerk 11 (ECF No. 79). For the same reason above, the Court finds this kind of declaration 12 immaterial and repetitive as to the issues already discussed. Therefore, Plaintiff’s Motion 13 (ECF No. 79) is DENIED, and the Court also finds this ground for reconsideration 14 insufficient to warrant modification of the Court’s Order. 15 III. Application of the Prison Mailbox Rule 16 Plaintiff then argues that the Court improperly declined to apply the prison mailbox 17 rule to raise a presumption of receipt. Reconsideration Mot. at 8–11. Plaintiff argues that 18 the prison mailbox rule established in Houston v. Lack, 487 U.S. 266 (1988) satisfies the 19 exhaustion requirement. Id. As discussed in the Court’s prior Order, in Houston, the 20 Supreme Court found that “a pro se prisoner’s notice of appeal, docketed after the deadline, 21 was ‘filed’ when it was delivered to prison authorities for mailing to the federal court.” 22 Carr v. Giron, 752 F. App’x 434, 436 (9th Cir. 2018) (citing Houston, 487 U.S. at 276). 23 In the Ninth Circuit, to exhaust administrative remedies under the FTCA, the claim must 24 be “presented” to the agency—meaning the agency must actually receive notice of the 25 claim, not just that it is mailed. See Bailey, 642 F.2d at 347 (“Nor do we accept appellants’ 26 invitation to rewrite the Act and in effect repeal the regulation by holding that mailing 27 alone is sufficient to meet the requirement that a claim be ‘presented.’” (citation omitted)); 28 Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1252 (9th Cir. 2006) (“In light of the Supreme 1 Court’s repeated admonition that waivers of sovereign immunity must be interpreted 2 strictly, we conclude that Bailey sets out the correct rule of law.”). While at least one 3 Circuit has construed the prison mailbox rule to apply to FTCA presentment, see Censke 4 v. United States, 947 F.3d 488 (7th Cir. 2020), the Court is unaware of, and Plaintiff fails 5 to point to, any authority finding that the Ninth Circuit has adopted this rule. Rather, even 6 the court in Censke recognized that the Ninth Circuit has not adopted this rule. See Censke, 7 947 F.3d at 491–92. Further, in Censke, the court applied the prison mailbox rule to find 8 that the prisoner’s SF-95 was timely received, not to establish evidence of receipt where, 9 as here, the agency never received the SF-95 at all. Id. at 490. Even if the Court were to 10 extend the prison mailbox rule to find evidence of mailing sufficient to raise a presumption 11 of presentment, the Government has rebutted any presumption through the Litz Declaration 12 and other supporting evidence of nonreceipt supplied with their Motion.1 13 Therefore, Plaintiff’s Amended Motion for Reconsideration (ECF No. 77) is 14 DENIED. 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20

21 22 1 Further, based on the record before the Court, there is currently insufficient information to equitably toll the deadline to present Plaintiff’s claim to the agency. See United States v. Wong, 575 U.S. 402, 405 23 (2015); Fleming v. United States, No. 22-CV-5082-RFL, 2026 WL 790751, at *7 (N.D. Cal. March 20, 2026) (“Dismissal is without leave to amend as any amendment would be futile. However, dismissal is 24 without prejudice to [the plaintiff] reasserting her claims after presenting them to the [agency] as required. 25 . . . [A]lthough [the plaintiff] has now missed the deadline to present her claims to [the agency], she may be entitled to equitable tolling of that deadline on the basis that she tried to present her Form 95 [to the 26 agency] but prison officials at FCI Dublin interfered with its transmittal.”). The dismissal of Plaintiff’s Second Amended Complaint was without prejudice. See Order at 13. If DHS declines to apply equitable 27 tolling and refuses to consider Plaintiff’s claims, he may reassert his claims in this case “and their viability in light of equitable tolling principles may be assessed at that time.” Fleming, 2026 WL 790751, at *7. 28 I CONCLUSION 2 In light of the foregoing, the Court: 3 (1) DENIES AS MOOT Plaintiff's Motion to Substitute Exhibit to Motion for 4 || Extension of Time to File Notice of Appeal (ECF No. 73); 5 (2) GRANTS Plaintiff's Motion to Seal or Redact a Substitute Exhibit to Exhibit 1 6 Motion for Extension of Time to File Notice of Appeal (ECF No. 74); 7 (3) DENIES Plaintiff's Motion for Reconsideration of Court’s Order Granting 8 || Defendant’s Motion to Dismiss (“Reconsideration Mot.,’” ECF No. 77); 9 (4) DENIES Plaintiff's Motion to Reject Declaration of Jeannette Litz (ECF 10 || No. 78); 11 (5) DENIES Plaintiff's Motion to Compel Subpoena for Declaration of Prison Mail 12 || Clerk (ECF No. 79); and 13 (6) DENIES AS MOOT Plaintiff's Motion to Expedite Consideration and Enter 14 || Order Deciding Pending Post-Judgment Motions (ECF No. 82). 15 The Clerk of the Court SHALL FILE under seal Plaintiff's Motion to Substitute 16 || Exhibit to Motion for Extension of Time to File Notice of Appeal (ECF No. 73) and the 17 exhibit attached thereto. The case remains closed. 18 IT IS SO ORDERED. 19 Dated: June 25, 2026 . L .

21 United States District Judge 22 23 24 25 26 27 28 8