25-1647 Carroll v. United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of May, two thousand twenty-six.
PRESENT: RICHARD C. WESLEY, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________
ROBERT CARROLL,
Plaintiff-Appellant,
v. No. 25-1647
UNITED STATES OF AMERICA,
Defendant-Appellee.
_____________________________________ For Plaintiff-Appellant: Robert Carroll, pro se, Connelly, NY.
For Defendant-Appellee: Karen Folster Lesperance, Assistant United States Attorney, for John A. Sarcone III, Acting United States Attorney for the Northern District of New York, Albany, NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Lawrence E. Kahn, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Robert Carroll, proceeding pro se, appeals from the district court’s dismissal
of his complaint for lack of subject-matter jurisdiction and its denial of his request
to file a second amended complaint. In essence, Carroll alleges that the staff of
the Samuel S. Stratton Department of Veterans Affairs Medical Center in Albany,
New York failed to diagnose and treat a cyst that led to medical complications, in
violation of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671–
2680. We assume the parties’ familiarity with the underlying facts, procedural
2 history, and issues on appeal, to which we refer only as necessary to explain our
decision.
“When reviewing the dismissal of a complaint for lack of subject[-]matter
jurisdiction, we review factual findings for clear error and legal conclusions de
novo, accepting all material facts alleged in the complaint as true and drawing all
reasonable inferences in the plaintiff’s favor.” Liranzo v. United States, 690 F.3d 78,
84 (2d Cir. 2012). And “when denial of leave to file a revised [complaint] is based
on a legal interpretation, such as futility, a reviewing court conducts a de novo
review.” Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015). Finally,
because Carroll “has been pro se throughout,” we construe “his pleadings and
other filings . . . to raise the strongest claims they suggest.” Sharikov v. Philips
Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024).
As a sovereign nation, the United States – and its departments and agencies
– may not be sued without its consent. E.g., Maine Cmty. Health Options v. United
States, 590 U.S. 296, 322 (2020) (“The United States is immune from suit unless it
unequivocally consents.”). The FTCA provides a limited waiver of sovereign
immunity for claims seeking damages for injuries arising from the tortious
conduct of federal officers or agents acting within the scope of their office or
3 employment. 28 U.S.C. § 1346(b)(1); see also Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). But before suing under the FTCA, a plaintiff must exhaust
administrative remedies by “first present[ing] the claim to the appropriate federal
agency . . . within two years of the date the claim accrued.” Phillips v. Generations
Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013); see 28 U.S.C. § 2401(b). The notice
of claim “must provide enough information to permit the agency to conduct an
investigation and to estimate the claim’s worth.” Romulus v. United States, 160
F.3d 131, 132 (2d Cir. 1998). And because the FTCA’s “requirement” to exhaust
administrative remedies “is jurisdictional and cannot be waived,” district courts
lack subject-matter jurisdiction whenever a plaintiff fails to exhaust those
remedies. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d
Cir. 2005).
Here, Carroll failed to exhaust his claims with the United States Department
of Veterans Affairs (“VA”) in a timely manner. While Carroll eventually filed a
notice of claim (an “SF-95”) with the VA in 2022, the notice attached to his original
complaint acknowledged on its face that Carroll learned of the previously
undiagnosed cyst that caused his injuries in 2018, when he had a second MRI and
was referred to a neurosurgeon. Because the SF-95 was filed more than four years
4 after the claim accrued in 2018, it was clearly untimely under the FTCA’s two-year
exhaustion requirement. See 28 U.S.C. § 2401(b); Ulrich v. Veterans Admin. Hosp.,
853 F.2d 1078, 1080 (2d Cir. 1988) (“An FTCA action accrues when the plaintiff in
the exercise of reasonable diligence knows both the existence and the cause of his
injury.”).
After commencing this lawsuit, Carroll changed his story, asserting that his
original SF-95 was mistaken and that he actually did not learn of the cyst – and the
VA’s alleged malpractice – until October 2020. See Dist. Ct. Doc. No. 8 at 7 (“The
plaintiff was not aware of the existence of the synovial cyst until the second lumbar
MRI performed on 10/23/2020”); id. at 8 (alleging that “the second MRI on
10/23/2020 [was] the earliest he could have suspected that the cyst was the cause
of the increasingly severe lower back pain and that the defendants had committed
medical malpractice.”). But even if we accept Carroll’s new chronology at face
value, his SF-95 was “received by” the VA “in November 2022,” id. at 12, which
was still more than two years after he learned of the cyst and came to believe “that
the defendants had committed medical malpractice,” id. at 8; see also id. at 3
(acknowledging that the VA received “plaintiff’s SF-95 in 11/2022” (emphasis
5 added)). 1 We therefore see no error in the district court’s dismissal of Carroll’s
claim.
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25-1647 Carroll v. United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of May, two thousand twenty-six.
PRESENT: RICHARD C. WESLEY, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________
ROBERT CARROLL,
Plaintiff-Appellant,
v. No. 25-1647
UNITED STATES OF AMERICA,
Defendant-Appellee.
_____________________________________ For Plaintiff-Appellant: Robert Carroll, pro se, Connelly, NY.
For Defendant-Appellee: Karen Folster Lesperance, Assistant United States Attorney, for John A. Sarcone III, Acting United States Attorney for the Northern District of New York, Albany, NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Lawrence E. Kahn, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Robert Carroll, proceeding pro se, appeals from the district court’s dismissal
of his complaint for lack of subject-matter jurisdiction and its denial of his request
to file a second amended complaint. In essence, Carroll alleges that the staff of
the Samuel S. Stratton Department of Veterans Affairs Medical Center in Albany,
New York failed to diagnose and treat a cyst that led to medical complications, in
violation of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671–
2680. We assume the parties’ familiarity with the underlying facts, procedural
2 history, and issues on appeal, to which we refer only as necessary to explain our
decision.
“When reviewing the dismissal of a complaint for lack of subject[-]matter
jurisdiction, we review factual findings for clear error and legal conclusions de
novo, accepting all material facts alleged in the complaint as true and drawing all
reasonable inferences in the plaintiff’s favor.” Liranzo v. United States, 690 F.3d 78,
84 (2d Cir. 2012). And “when denial of leave to file a revised [complaint] is based
on a legal interpretation, such as futility, a reviewing court conducts a de novo
review.” Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015). Finally,
because Carroll “has been pro se throughout,” we construe “his pleadings and
other filings . . . to raise the strongest claims they suggest.” Sharikov v. Philips
Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024).
As a sovereign nation, the United States – and its departments and agencies
– may not be sued without its consent. E.g., Maine Cmty. Health Options v. United
States, 590 U.S. 296, 322 (2020) (“The United States is immune from suit unless it
unequivocally consents.”). The FTCA provides a limited waiver of sovereign
immunity for claims seeking damages for injuries arising from the tortious
conduct of federal officers or agents acting within the scope of their office or
3 employment. 28 U.S.C. § 1346(b)(1); see also Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). But before suing under the FTCA, a plaintiff must exhaust
administrative remedies by “first present[ing] the claim to the appropriate federal
agency . . . within two years of the date the claim accrued.” Phillips v. Generations
Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013); see 28 U.S.C. § 2401(b). The notice
of claim “must provide enough information to permit the agency to conduct an
investigation and to estimate the claim’s worth.” Romulus v. United States, 160
F.3d 131, 132 (2d Cir. 1998). And because the FTCA’s “requirement” to exhaust
administrative remedies “is jurisdictional and cannot be waived,” district courts
lack subject-matter jurisdiction whenever a plaintiff fails to exhaust those
remedies. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d
Cir. 2005).
Here, Carroll failed to exhaust his claims with the United States Department
of Veterans Affairs (“VA”) in a timely manner. While Carroll eventually filed a
notice of claim (an “SF-95”) with the VA in 2022, the notice attached to his original
complaint acknowledged on its face that Carroll learned of the previously
undiagnosed cyst that caused his injuries in 2018, when he had a second MRI and
was referred to a neurosurgeon. Because the SF-95 was filed more than four years
4 after the claim accrued in 2018, it was clearly untimely under the FTCA’s two-year
exhaustion requirement. See 28 U.S.C. § 2401(b); Ulrich v. Veterans Admin. Hosp.,
853 F.2d 1078, 1080 (2d Cir. 1988) (“An FTCA action accrues when the plaintiff in
the exercise of reasonable diligence knows both the existence and the cause of his
injury.”).
After commencing this lawsuit, Carroll changed his story, asserting that his
original SF-95 was mistaken and that he actually did not learn of the cyst – and the
VA’s alleged malpractice – until October 2020. See Dist. Ct. Doc. No. 8 at 7 (“The
plaintiff was not aware of the existence of the synovial cyst until the second lumbar
MRI performed on 10/23/2020”); id. at 8 (alleging that “the second MRI on
10/23/2020 [was] the earliest he could have suspected that the cyst was the cause
of the increasingly severe lower back pain and that the defendants had committed
medical malpractice.”). But even if we accept Carroll’s new chronology at face
value, his SF-95 was “received by” the VA “in November 2022,” id. at 12, which
was still more than two years after he learned of the cyst and came to believe “that
the defendants had committed medical malpractice,” id. at 8; see also id. at 3
(acknowledging that the VA received “plaintiff’s SF-95 in 11/2022” (emphasis
5 added)). 1 We therefore see no error in the district court’s dismissal of Carroll’s
claim.
Finally, the district court correctly denied Carroll’s request to file a second
amended complaint. As the district court explained, Carroll’s proposed
amendments – which largely reiterated the allegations in his first amended
complaint – “would not cure the deficiencies in this action,” namely his failure to
exhaust his administrative remedies within two years of the claim’s accrual.
App’x at 61. Because amendment would have been futile, the district court was
justified in denying the request to file an amended pleading. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“[A] futile request to replead should be
denied.”).
We have considered Carroll’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
1 Unlike other causes of action, the FTCA requires that plaintiffs allege (and subsequently “show”) “actual receipt” of their mailings to federal agencies in order to satisfy the statute’s exhaustion requirement. Cooke v. United States, 918 F.3d 77, 82 (2d Cir. 2019). As in Cooke, we rely on the receipt date as alleged in the operative complaint – here, November 2022. See id. at 80–81.