18-3051
Mayes 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
ASUMMARY 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 23rd day of January, two thousand twenty.

PRESENT:
            ROBERT A. KATZMANN,
                  Chief Judge,
            PETER W. HALL,
            GERARD E. LYNCH,
                  Circuit Judges.
_____________________________________

Anthony Mayes, Jr.,

                          Plaintiff-Appellant,
                  v.                                                   18-3051

United States of America,

                          Defendant-Appellee,

Federal Bureau of Prisons, Metropolitan
Correctional Center,

                  Defendants.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                        Anthony Mayes, Jr., pro se,
                                                                United States Penitentiary,
                                                                Terre Haute, IN.
FOR DEFENDANT-APPELLEE:                                              Jennifer Jude, Christopher
                                                                     Connolly, Assistant United
                                                                     States Attorneys, for Geoffrey
                                                                     S. Berman, United States
                                                                     Attorney for the Southern
                                                                     District of New York, New
                                                                     York, NY.


        Appeal from a judgment and order of the United States District Court for the Southern

District of New York (Failla, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Appellant Anthony Mayes, Jr., proceeding pro se, appeals the district court’s judgment

granting summary judgment to the government in this Federal Torts Claims Act (“FTCA”) action,

stemming from a prison dentist’s attempt to extract his tooth. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

        This Court’s March 2019 order granting Mayes in forma pauperis status directed the parties

to brief “whether Appellant was notified of the nature and consequences of summary judgment.

See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999).” Despite that, neither party

briefed the issue. We conclude that Mayes’s failure to raise the issue waives it. See LoSacco v.

City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (pro se litigant abandons issue by failing to

address it in his appellate brief).

        The government asserts that we only have jurisdiction to review the district court’s denial

of Mayes’s motion for reconsideration, and not the judgment, because Mayes did not file his

motion to reconsider within 28 days of the judgment. However, we have held that the 28-day

deadline “should be deemed a claim-processing rule that allows for equitable exceptions.”

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Weitzner v. Cynosure, Inc., 802 F.3d 307, 311-12 (2d Cir. 2015). The district court improperly

extended Mayes’s time to file a motion for reconsideration on multiple occasions, and Mayes filed

his motion within the extensions of time granted to him by the district court. See Fed. R. Civ. P.

6(b)(2). The government did not object to the extensions below and has therefore waived its

timeliness challenge. See Legg v. Ulster Cty., 820 F.3d 67, 79 (2d Cir. 2016); Amaker v. Annucci,

721 F. App’x 82, 83 (2d Cir. 2018) (summary order). In any event, the government has not

adequately briefed its timeliness challenge. See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.

2001) (“It is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation, are deemed waived.” (internal quotation marks and

citation omitted)). We therefore have jurisdiction to review the judgment as well as the denial of

reconsideration.

       We review de novo a grant of summary judgment, “resolving all ambiguities and drawing

all reasonable factual inferences in favor of the [non-movant].”           Nick’s Garage, Inc. v.

Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (internal quotation marks and

alterations omitted). FTCA malpractice claims are governed by state law. Malmberg v. United

States, 816 F.3d 185, 193 (2d Cir. 2016). In New York, a plaintiff asserting medical malpractice

“must demonstrate that the doctor deviated from acceptable medical practice, and that such

deviation was a proximate cause of the plaintiff’s injury.” James v. Wormuth, 21 N.Y.3d 540,

545 (2013).

       Mayes failed to demonstrate a genuine issue of material fact as to whether the prison dentist

caused him any injury. Mayes’s own expert did not conclude that any departure from the standard

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of care on the part of the dentist caused his asserted injuries. Mayes presented no other evidence

regarding causation, and his claims appropriately did not survive summary judgment. See Foster-

Sturrup v. Long, 95 A.D.3d 726, 729 (1st Dep’t 2012) (reversing denial of summary judgment, in

part because “plaintiffs failed to raise an issue of fact as to causation”); Callistro ex rel. Rivera v.

Bebbington, 94 A.D.3d 408, 410-11 (1st Dep’t 2012) (affirming grant of summary judgment to

doctor because plaintiff’s experts did not establish causation).

         Mayes also argues that the district court should have granted leave to amend his complaint

to include a claim that he did not give informed consent to the procedure. The district court

concluded that the plaintiff alleged facts that resembled an informed consent claim, but dismissed

the claim for failure to satisfy the FTCA’s exhaustion requirement. We find no error in that

ruling. Prior to bringing suit under the FTCA, a plaintiff must exhaust administrative remedies

by filing a claim for monetary damages with the appropriate federal entity within two years of

accrual of the injury. 28 U.S.C. § 2401(b); Phillips v. Generations Family Health Ctr., 723 F.3d

144, 147 (2d Cir. 2013). The district court lacks jurisdiction over FTCA claims if the plaintiff

failed to exhaust. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.

2005).

         Mayes’s initial administrative claim asserted only medical malpractice and did not include

an informed consent claim. That did not satisfy the FTCA’s exhaustion requirement, because

“[i]n this Circuit, a Notice of Claim filed pursuant to the FTCA 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) (per curiam). Mayes’s 2017 administrative

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claims likewise did not confer jurisdiction because they were filed after Mayes had filed his

lawsuit. See 28 U.S.C. § 2675(a) (providing that a FTCA action “shall not be instituted . . . unless

the claimant shall have first presented the claim to the appropriate Federal agency”); McNeil v.

United States, 508 U.S. 106, 112 (1993).

       We have considered all of Appellant’s 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




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