    09-2165-cv
    McCracken v. Brookhaven Science Associates, LLC


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
    RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
    BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.
    W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
    M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
    NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 12 th day of May, two thousand ten.

    PRESENT:
              ROGER J. MINER,
              GERARD E. LYNCH,
                   Circuit Judges,
              DAVID G. TRAGER,*
                   District Judge.
    ____________________________________

    Ted A. McCracken,

                              Plaintiff-Appellant,

                     v.                                           No. 09-2165-cv

    Brookhaven Science Associates LLC,
    et al.,

                              Defendants-Appellees.

    _____________________________________
1
2   FOR APPELLANT: Ted A. McCracken, pro se, North Wales,
3                  Pennsylvania, on submission.




            *
          The Honorable David G. Trager, Senior Judge of the United
    States District Court for the Eastern District of New York,
    sitting by designation.
 1   FOR APPELLEES BROOKHAVEN SCIENCE ASSOCIATES LLC, et al.:
 2                  Michael Stewart Cohen, Nixon Peabody LLP, New
 3                  York, New York, on submission.
 4
 5   FOR APPELLEES UNITED STATES OF AMERICA, et al.:
 6                  Varuni Nelson and David M. Eskew, Assistant United
 7                  States Attorneys, for Benton J. Campbell, United
 8                  States Attorney, Eastern District of New York, New
 9                  York, New York, on submission.
10
11   FOR APPELLEE RESEARCH FOUNDATION OF STATE UNIVERSITY OF NEW YORK:
12                  William G. Ballaine and Amit Sondhi, Landman Corsi
13                  Ballaine & Ford, P.C., New York, New York, on
14                  submission.
15
16        Appeal from a judgment of the United States District Court

17   for the Eastern District of New York (Gleeson, J.).

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

19   DECREED that the judgment of the district court be AFFIRMED.

20        Appellant appeals from the district court’s order dismissing

21   his complaint and its subsequent orders denying reconsideration.

22   We assume familiarity with the facts and the proceedings below.

23        To survive a 12(b)(6) motion to dismiss for failure to state

24   a claim, the complaint must plead enough facts to “state a claim

25   to relief that is plausible on its face.”   Ashcroft v. Iqbal, __

26   U.S. __ , 129 S. Ct. 1937, 1949 (2009) (internal quotation marks

27   omitted).   Although this rule applies to pro se complaints, we

28   read pro se complaints with "special solicitude" and interpret

29   them to raise the "strongest arguments that they suggest."

30   Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-76 (2d

31   Cir. 2006) (internal quotation marks omitted).

32        Dismissals without leave to amend are generally disfavored,

                                      2
1    and pro se plaintiffs typically should be afforded an opportunity

2    to amend their complaints.     See McEachin v. McGuinnis, 357 F.3d

3    197, 200-01 (2d Cir. 2004).    But courts must dismiss in forma

4    pauperis complaints that are frivolous or fail to state a claim.

5    See 28 U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319,

6    325 (1989).   This Court may affirm dismissal on any basis

7    supported by the record.     See AmBase Corp. v. City Inv. Co.

8    Liquidating Trust, 326 F.3d 63, 72 (2d Cir. 2003).

9         Here, Appellant’s central claim, that experiments conducted

10   at Brookhaven National Laboratory (“Brookhaven”) released

11   radiation that gave him thyroid cancer, while not facially

12   inconceivable, failed to state a claim upon which relief could be

13   granted, because it was unsupported by any specific factual

14   allegations to draw the inference that Brookhaven was liable.

15   Appellant never worked at Brookhaven; he alleges only that “he

16   has for thirty-three (33) years resided in the vicinity of”

17   Brookhaven;1 and he gives no hint in his pleading of any fact

18   suggesting that Brookhaven, or any other defendant for that

19   matter, was responsible for the alleged leaks.     See Iqbal, 129 S.

20   Ct. at 1949 (“The plausibility standard . . . asks for more than

21   a sheer possibility that a defendant has acted unlawfully.”).2

          1
           Appellant’s closest residence to Brookhaven was over
     twenty miles away in Commack, New York, where he claims he lived
     for four years.
          2
           Appellant also sued a number of defendants operating
     laboratories scattered around the country. But there is even
     less apparent possibility that they are responsible for his
                                     3
1         A review of both of Appellant's proposed amended complaints

2    demonstrates that he would have been unable to state a claim

3    against the defendants even if granted leave to amend; thus, the

4    district court did not abuse its discretion in denying leave to

5    amend and denying reconsideration of its final order dismissing

6    the complaint.   Even if this Court were to consider the report

7    that Appellant presents for the first time on appeal, that

8    document does not support an inference of wrongdoing by any

9    defendant; accordingly, it does not demonstrate that Appellant’s

10   claims were plausible or that remand is necessary.

11        McCracken argues that the district court was wrong to

12   dismiss his claims against the federal defendants because the

13   nuclear testing was “extremely ultrahazardous” and “therefore the

14   US should not be able to simply defer all responsibility to its

15   independent contractor.”   But the federal defendants were

16   properly dismissed for lack of subject matter jurisdiction,

17   because the agencies were not subject to suit under the Federal

18   Tort Claims Act, see ABC v. DEF, 500 F.3d 103, 105 (2d Cir. 2007)

19   (“[T]he FTCA does not permit suits against federal agencies.”),

20   and the United States was properly dismissed because the alleged

21   wrongful conduct was attributable to independent contractors,

22   see United States v. Orleans, 425 U.S. 807, 813-14 (1976) (FTCA



     injuries, as many of them are located hundreds of miles away from
     Appellant, in such places as California, New Mexico, and
     Illinois.

                                      4
1   sovereign immunity waiver applies only to torts committed by

2   United States government employees acting within the scope of

3   employment, and not to independent contractors).

4        We have considered all of Appellant’s arguments on appeal

5   and find them to be without merit.    Accordingly, the judgment of

6   the district court is AFFIRMED.

7                                 FOR THE COURT:
8                                 Catherine O’Hagan Wolfe, Clerk

9




                                      5
