Accolla v. United States Government

381 F. App'x 71

• Court: Court of Appeals for the Second Circuit
• Decided: June 18, 2010
• Docket: 09-3957-pr
• Status: Unpublished

Opinion

SUMMARY ORDER

Appellant appeals from the district court’s order dismissing claims pursuant to the Federal Tort Claims Act (“FTCA”), Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 42 U.S.C. § 1983. We assume familiarity with the facts and proceedings below and the identification of issues on appeal.

This Court reviews de novo both a district court’s dismissal of a complaint pursuant to Rule 12(b) and its grant of judgment on the pleadings pursuant to Rule 12(c), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir.2002); see Hardy v. New York City Health & Hospitals Corp., 164 F.3d 789, 792 (2d Cir.1999); Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir.1994). To state a claim, a complaint must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This Court is required to construe pro se complaints liberally, see Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir.2009), and must read them with “special solicitude” and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (per curiam).

“The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court. This requirement is jurisdictional and cannot be waived.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.2005). The statute provides that “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....” 28 U.S.C. § 2401(b). An FTCA claim accrues at the time of the plaintiffs injury, “although in certain instances, particularly in medical malpractice cases, accrual may be postponed until the plaintiff has or with reasonable diligence should have discovered the critical facts of both his injury and its cause.” Barrett v. United States, 689 F.2d 324, 327 (2d Cir.1982); see also Valdez v. United States, 518 F.3d 173, 177 (2d Cir. 2008).

Here, Appellant’s New York claims accrued, at the latest, in December 2004, and he did not file an administrative claim with the Bureau of Prisons until November 2007. The district court properly concluded, therefore, that it lacked subject matter jurisdiction over the FTCA claims. Given the well established general rule that a court of appeals will not consider an issue raised for the first time on appeal, we decline to reach Appellant’s arguments, made for the first time on appeal, that FTCA exhaustion was not required because Appellant presented constitutional questions and the remedies were ineffective. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).

The district court properly dismissed the Bivens claim as time-barred, as any such claim accrued in 2004, was subject to a three-year statute of limitations, and the complaint was not filed until July 2008. See Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (statute of limitations for a Bivens actions arising in New York is three years).

We have considered all of Appellants’ arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.