          United States Court of Appeals
                     For the First Circuit


No. 16-2025

                         PETER CAMERANO,
   Personal Representative of the Estate of Patrick Camerano,

                      Plaintiff, Appellant,

                               v.

                    UNITED STATES OF AMERICA,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor IV, U.S. District Judge]


                             Before

                   Torruella, Selya, Kayatta,
                         Circuit Judges.


     Daniel C. Federico and Shaines & McEachern, PA on brief for
appellant.
     Rayford A. Farquhar, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.


                         April 19, 2017
           KAYATTA, Circuit Judge.         Plaintiff is the son of the

late Patrick Camerano and the personal representative of Patrick's

estate. This lawsuit arises out of Patrick's death, which resulted

from a fall he suffered while on a "respite/nursing stay" at a

facility   operated   by   East   Boston   Neighborhood    Health   Center

("EBNHC") at 26 Sturgis Street in Winthrop, Massachusetts.

           The underlying facts of this case are detailed in the

district court's published opinion. See Camerano v. United States,

196 F. Supp. 3d 172, 175–76 (D. Mass. 2016).              In summary, the

chronology of relevant events is as follows:

          February 24, 2012:   When Patrick's second son, Paul--
           who lived in the same apartment building as Patrick--
           has to travel to Florida, EBNHC arranges for Patrick to
           stay temporarily at its Winthrop facility.

          February 26, 2012:   At approximately three o'clock in
           the morning, Patrick suffers a fall in the hallway of
           the Winthrop facility. No witnesses observe Patrick's
           fall.

          February 27, 2012: Patrick begins to display signs of
           distress and is hospitalized at Boston Medical Center.

          February 28, 2012: Plaintiff receives a phone call from
           an EBNHC nurse, who advises him that Patrick has been
           involved in an accident and sent to the hospital. Upon
           further inquiry, the nurse tells plaintiff that Patrick
           has fallen, but that she is "not totally sure."

          February 29, 2012:     Patrick is moved to hospice care.

          March 1, 2012:    Patrick passes away.

          May 27, 2012: The Commonwealth of Massachusetts issues
           Patrick's death certificate.      The document specifies
           that he died due to a "subdural hemorrhage" that resulted



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           from an "unwitnessed fall" at a "respite facility"
           located at "26 Sturgis Street, Winthrop, MA."

          June 2012: Plaintiff requests Patrick's medical records
           from EBNHC, and receives some, but not all, records.
           (He says now that he made this request because he did
           "not know[] where [his] father was when he was injured.")

          August 29, 2012:        Plaintiff files a voluntary
           administration statement with the Massachusetts Probate
           and Family Court.     The form lists as an asset a
           "[w]rongful death action regarding [a] nursing home
           facility."

          October 29, 2012: Plaintiff and his attorney obtain an
           additional   set   of    Patrick's   medical    records.
           (Plaintiff's brief alleges that "the location and the
           proximate cause of the injury . . . were not reasonably
           discoverable until" he received these records.)

          March 5, 2014: Plaintiff's attorney sends a letter to
           EBNHC, stating plaintiff's "inten[tion] to file a claim
           for damages."

          May 15, 2014: Plaintiff's attorney sends a letter styled
           as a "Claim" to the United States Department of Health
           and Human Services ("HHS"), alleging state common law
           and federal statutory violations and seeking unspecified
           damages.

          July 16, 2014: Plaintiff's attorney submits a standard
           claim form to HHS, seeking $1,700,000 in damages for
           Patrick's alleged wrongful death.

           As the district court noted in granting summary judgment

to the government, the problem for plaintiff is that he has not

submitted any evidence disputing that EBNHC is a federal entity

under the purview of the United States Public Health Service.    As

such, plaintiff's tort claims against EBNHC are considered tort

claims against the United States, see 42 U.S.C. § 233(g), and any

"tort claim against the United States shall be forever barred


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unless it is presented in writing to the appropriate Federal agency

within two years after such claim accrues," 28 U.S.C. § 2401(b).

As     the    chronology    reflects,     plaintiff     did   not   file   his

administrative complaint with HHS until more than two years after

learning that his father had suffered a fatal injury caused by an

unwitnessed fall.1

              Plaintiff argues nevertheless that his claim did not

accrue until October 29, 2012, when his newly retained counsel was

able to ascertain "the name of the respite/nursing home where his

late father's accident happened."              Alternatively, he argues that

the two-year limitations period should be equitably tolled until

that       date   because   of   the    government's    alleged     fraudulent

concealment of "the location and possible causes of the accidental

fall."

              The district court's opinion cogently explains why these

arguments fail.        See Camerano, 196 F. Supp. 3d at 177–81.            We

affirm largely on the basis of that explanation.              In brief, there

is no evidence that EBNHC deliberately concealed any material facts

that were needed to put plaintiff on notice of the fact and cause


       1Both plaintiff's original complaint and his amended
complaint specify July 16, 2014, as the operative filing date,
presumably because he submitted the relevant claim form to HHS on
or around this date, and because his earlier filings failed to
provide sufficient notice to HHS, see Holloway v. United States,
845 F.3d 487, 489 (1st Cir. 2017) (citing 28 C.F.R. § 14.2(a)).
On appeal, plaintiff does not argue that we should consider any
date other than July 16, 2014, as the operative filing date.


                                       - 4 -
of his father's injury.     See Callahan v. United States, 426 F.3d

444, 454 (1st Cir. 2005).    Further, no reasonable jury could find

that plaintiff did not know enough about his father's injury at

least to investigate further by March 1, 2012--and certainly by

May 27, 2012, when the death certificate was issued.    See Sanchez

v. United States, 740 F.3d 47, 52 (1st Cir. 2014).   And given that

plaintiff has not submitted any evidence disputing that this case

involves employees of the United States Public Health Service

acting within the scope of their employment, 42 U.S.C. § 1983 does

not provide a remedy for plaintiff's alleged injuries even if, as

plaintiff argues, those employees violated the Nursing Home Reform

Act, 42 U.S.C. §§ 1396r–1396r-8.     See id. § 233(g) (establishing

the "[e]xclusivity" of the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671–2680, as a remedy for actions such as this one);

McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006) ("[T]o

plead a viable section 1983 claim, a complaint must allege action

under color of state law." (emphasis added)); see also Casey v.

Dep't of Health & Human Servs., 807 F.3d 395, 400–01 (1st Cir.

2015) (noting that "the federal analog to § 1983 suits against

state officials," id. at 398 n.1, is available to redress only a

"limited" range of constitutional violations).2



     2The district court's correct dismissal of plaintiff's § 1983
claim thus moots the question of whether plaintiff should have
been granted leave to add another defendant to that claim.


                                - 5 -
              We add only the following comments in response to several

points that plaintiff emphasizes in his brief.           First, plaintiff's

argument that the running of the limitations period should be

deemed to have been stayed until he retained counsel has no support

in the law.      Certainly, we do not expect a layperson to know what

statutes of limitations apply.          And in most cases some portion of

the   relevant    limitations     period    will   run   before   counsel    is

retained.      That is likely one reason why such periods are not

shorter.      Any counsel competent to handle a malpractice claim

against a nursing or health care facility presumably knows that

various statutes of limitations exist, and that the correct one

need be identified if not already known.           See Sanchez, 740 F.3d at

54-56.      If plaintiff's own lawyer did not tell him about the two-

year limitations period applicable here, then that may well provide

plaintiff with cause to complain.            The proper object of such a

complaint, however, would be counsel, not EBNHC or the federal

government.

              Second, plaintiff's statement in his affidavit that

records produced by the hospital in June of 2012 were incomplete

fails to get him anywhere because he offers no explanation as to

how   the    incompleteness   prejudiced     him    in   any   material   way.

Plaintiff alleges no facts making it plausible that the hospital

lulled him into thinking that he had no viable claim.                  To the

contrary,     after   receiving   the   records,    plaintiff     executed   an


                                    - 6 -
estate-administration form that listed the "wrongful death action

regarding [a] nursing home facility" as an asset of the estate.

He claims that the records that EBNHC provided him prior to

October 29, 2012, did not reveal the name of the relevant facility.

But he already knew the address from the death certificate.     That

he also fails to allege that he ever asked about the name of the

facility erects yet another impediment to any plausible contention

that EBNHC, by its silence, misled him about the location at which

his father was injured.

           We also decline to find that the district court committed

procedural error in granting summary judgment to the government.

Contrary to plaintiff's assertions otherwise, the government's

memorandum in support of its motion to dismiss contains a section

entitled   "Introduction   and   Undisputed   Facts,"   which   cites

plaintiff's own complaints as well as various attached exhibits.

Nor do we find error in the district court's finding that the

address of "26 Sturgis Street, Winthrop, MA" was "EBNHC's address."

The district court was not saying that plaintiff knew that fact.

Rather, the district court was correctly saying that, armed with

the death certificate, plaintiff could have "readily" ascertained

the location at which his father's injury occurred.     See Gonzalez

v. United States, 284 F.3d 281, 289 (1st Cir. 2002) (noting that

the existence of a possible claim was not "inherently incapable of

detection . . . through the exercise of reasonable diligence").


                                 - 7 -
           Finally,    plaintiff's       claim    that    he   was    entitled   to

prejudgment discovery is defeated by his acquiescence to the

district court's conversion of the government's motion to dismiss

into a motion for summary judgment.              See Fed. R. Civ. P. 12(d).

Nor did plaintiff claim in the district court that he lacked the

opportunity to rebut the government's timeliness argument in his

opposition memorandum.          The key issues, after all, were what

plaintiff knew and when he knew it.                Thus, we cannot say that

plaintiff did not have "reasonable opportunity to present all

material made pertinent to such a motion" or that conversion was

otherwise a "surprise" or "unfair."              See Giragosian v. Ryan, 547

F.3d 59, 65 (1st Cir. 2008).

           To   be   sure,   it    is    unfortunate       when   a   potentially

important claim is lost because a deadline is missed.                    However,

that is the necessary result of the statutory limitations periods

that our elected representatives have seen fit to enact, without

which there would be no repose and claims might be filed long after

the   ability   to   recreate     what   happened        has   much   diminished.

Plaintiff is a layperson who suspected that he might have a valid

claim arising out of his father's death.             Based on what he knew,

the law anticipates that he would do what he did in fact do:

promptly consult a lawyer.        Plaintiff's knowledge of his father's

injury, combined with what his lawyer should have known about how

to investigate and preserve any potential claims arising from that


                                    - 8 -
injury, left him well able to file the appropriate claim form with

HHS   within   the   two-year   limitations   period   established   by

Congress.   That he did not do so is not the fault of EBNHC or the

government.

            For the foregoing reasons, we affirm.




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