         09-1919-cv
         Megna v. Food and Drug Administration


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18 th day of May, two thousand and ten.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                PAUL A. CROTTY,
10                         District Judge. *
11
12
13       CATHERINE H. MEGNA ex rel. SARAH A. MEGNA,
14
15                                       Appellant,
16
17                       -v.-                                                           (09-1919-cv)
18
19       FOOD AND DRUG ADMINISTRATION, DEPARTMENT
20       OF HEALTH AND HUMAN SERVICES, SCHERING-
21       PLOUGH CORPORATION, FRED HASSAN, Chief
22       Executive Officer of Schering-Plough
23       Corporation, et al.,
24
25                                       Appellees. **
26
27


                 *
                 The Honorable Paul A. Crotty, of the United States District Court for
         the Southern District of New York, sitting by designation.
                 **
                  The Clerk of the Court is respectfully directed to amend the official
         caption to conform to the caption as it appears above.
 1   FOR APPELLANT:             CATHERINE H. MEGNA, pro se,
 2                              Bellmore, New York.
 3
 4   FOR APPELLEE FOOD
 5   AND DRUG ADMINISTRATION:   VINCENT LIPARI, Assistant United
 6                              States Attorney (Varuni Nelson,
 7                              Assistant United States
 8                              Attorney, on the brief), for
 9                              Benton J. Campbell, United
10                              States Attorney for the Eastern
11                              District of New York, Central
12                              Islip, New York.
13
14   FOR APPELLEES SCHERING-
15   PLOUGH and FRED HASSAN:    LAWRENCE J. REINA and Adam M.
16                              Masin, Reed Smith LLP, New York
17                              New York, and Shannon E.
18                              McClure, Reed Smith, LLP,
19                              Philadelphia, Pennsylvania.
20
21        Appeal from the United States District Court for the
22   Eastern District of New York (Bianco, J.).
23
24       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

25   AND DECREED that the judgment of the United States District

26   Court for the Eastern District of New York be AFFIRMED and

27   plaintiff’s motion for leave to amend her pleadings is

28   DENIED.

29       Plaintiff appeals from the judgment of the United

30   States District Court for the Eastern District of New York

31   (Bianco, J.), granting the Schering-Plough defendants’

32   motion to dismiss pursuant to Federal Rule of Civil

33   Procedure 12(b)(6), granting the Food and Drug

34   Administration’s (“FDA”) motion to dismiss pursuant to

                                  2
1    Federal Rule of Civil Procedure 12(b)(1), and declining to

2    exercise supplemental jurisdiction over plaintiff’s state

3    law claims. 1    We assume the parties’ familiarity with the

4    underlying facts, the procedural history, and the issues

5    presented for review.

6          In considering the motion pursuant to Rule 12(b)(6) to

7    dismiss for failure to state a claim, the district court

8    properly assumed the facts alleged by plaintiff to be true

9    and gave plaintiff’s complaint its most liberal

10   construction, reading it “to raise its strongest” possible

11   arguments and claims.        Megna v. Food & Drug Admin., No. 08

12   Civ. 1435 (JFB) (WDW), 2009 WL 749900, at *2, *4 (E.D.N.Y.

13   Mar. 17, 2009).

14         Upon a de novo review of the record, Morrison v. Nat’l

15   Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), we

16   conclude that the district court properly determined that no

17   claim pursuant to 42 U.S.C. § 1983 can exist against the

18   Schering-Plough defendants because they are not state actors

19   and did not act in concert with state actors.                See Tancredi



           1
             As a general matter, “[a] person who has not been admitted to the
     practice of law may not represent anybody other than himself.” Guest v.
     Hansen, — F.3d —, No. 08-4642, 2010 WL 1541582, at *4 (2d Cir. Apr. 20, 2010).
     However, as the “administrator and sole beneficiary” of her sister’s estate,
     which has “no creditors,” plaintiff “may appear pro se on behalf of” her
     sister’s estate. Id. at *5.

                                           3
1    v. Metro. Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004).

2    In addition, the district court correctly held that the

3    actions of the Schering-Plough defendants cannot give rise

4    to a claim under Bivens v. Six Unknown Named Agents of

5    Federal Bureau of Narcotics, 403 U.S. 388 (1971).

6        With respect to the FDA, the district court construed

7    plaintiff’s complaint to assert a claim under the Federal

8    Tort Claims Act (“FTCA”), finding that “any other

9    constitutional tort claim . . . under any other theory of

10   liability . . . is barred by the doctrine of sovereign

11   immunity.”     Megna, 2009 WL 749900, at *8 n.11.     The district

12   court dismissed plaintiff’s claim against the FDA for

13   failure to exhaust administrative remedies as required by

14   the FTCA.     Id. at *9.   We agree with the district court

15   that, to the extent that the claim is that the FDA committed

16   a tort against Megna, any such claim is governed by the FTCA

17   and plaintiff failed to exhaust her claims under that

18   statute.     See McNeil v. United States, 508 U.S. 106, 113

19   (1993).

20       As the district court properly dismissed plaintiff’s

21   federal claims, we cannot say that dismissal of plaintiff’s

22   state law claims was an abuse of discretion.        See Kolari v.



                                      4
1    N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006).

2        Finally, we decline to exercise our discretion to

3    consider plaintiff’s claims raised for the first time on

4    appeal, and deny her motion to amend her pleadings.     See

5    Virgilio v. City of N.Y., 407 F.3d 105, 118 (2d Cir. 2005).

6        We have considered all of plaintiff’s claims that are

7    properly before us and find them to be without merit.

8    Accordingly, the judgment of the district court is hereby

9    AFFIRMED and plaintiff’s motion to amend her pleadings in

10   this matter is DENIED.

11
12                              FOR THE COURT:
13                              Catherine O’Hagan Wolfe, Clerk
14
15




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