    13-2939
    Davis v. Goldstein


                              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
    24th day of April, two thousand fourteen.

    PRESENT:
                RALPH K. WINTER,
                BARRINGTON D. PARKER,
                PETER W. HALL,
                      Circuit Judges.
    _____________________________________

    Winston Davis,

                               Plaintiff-Appellant,

                         v.                                            13-2939

    P. Goldstein, Doctor, et al.,

                               Defendants-Appellees.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                            Winston Davis, pro se, Brooklyn, NY.

    FOR DEFENDANT-APPELLEE:                             Varuni Nelson, Margaret M. Kolbe,
                                                        Ameet B. Kabrawala, Assistant United
                                                        States Attorneys, of Counsel, for Loretta
                                                        E. Lynch, United States Attorney,
                                                        Eastern District of New York, Brooklyn,
                                                        NY.
       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Mauskopf, J.).

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

DECREED that the judgment is AFFIRMED in part and VACATED in part, and the case is

REMANDED for further proceedings consistent with this order.

       Plaintiff-Appellant Winston Davis, pro se, brought an action against the United States

Federal Bureau of Prisons (“BOP”), the Metropolitan Detention Center Brooklyn (“MDC”), and

several BOP and MDC employees, alleging negligence arising out of his transfer from MDC to

the Federal Medical Center in Butner, North Carolina (“FMC Butner”). He argued that FMC

Butner was not equipped to provide proper treatment for his prostate cancer. He filed an

administrative tort claim with the BOP in July 2008 alleging negligence arising out of his

transfer. In January 2009, the BOP denied his claim. He filed his federal complaint in July

2011. The district court granted the defendants’ motion to dismiss his action for lack of subject

matter jurisdiction because he did not file his federal complaint within six months of the denial

of his administrative claim as required by the Federal Tort Claims Act (“FTCA”). The court

found that his claim that BOP employee Henry Sadowski was negligent in deciding his

administrative claim was barred under the FTCA because he failed to present a claim about

Sadowski to the BOP before alleging one in his federal complaint. On appeal, Davis argues that

he never received the letter denying his administrative claim. He also argues that the district

court erred in finding his claim against Sadowski unexhausted, because that claim is “directly

linked to the case at hand.” We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.


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       When reviewing a district court’s dismissal for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1), this Court reviews factual findings for clear error and legal

conclusions de novo. Close v. New York, 125 F.3d 31, 35-36 (2d Cir. 1997). Dismissal of a case

for lack of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district court lacks

the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000).

       A.      Timeliness

       “The burden is on the plaintiff to both plead and prove compliance with the [FTCA’s]

statutory requirements.” In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir.

1987). “In the absence of such compliance, a district court has no subject matter jurisdiction

over the plaintiff's claim.” Id. Under the Act, a plaintiff must file his federal complaint “within

six months after the date of mailing, by certified or registered mail, of notice of final denial of

the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). “Actual receipt of the

notice . . . is not required by the statute.” Pascarella v. United States, 582 F. Supp. 790, 792 (D.

Conn. 1984).

       The BOP acknowledges that Davis denies receipt of the letter, but contends that is

irrelevant. The BOP raises the “presumption of regularity,” which holds that “in the absence of

clear evidence to the contrary, the court will presume that public officers have properly

discharged their official duties.” Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004)

(presumption of regularity properly applied to support that the Board of Veterans Appeals

mailed a notice of decision, based on factual findings about the Board’s administrative practice

and that the notice was designated to be mailed with other documents that were in fact mailed).


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By analogy, a “presumption of receipt” applies where “the record establishes office procedures,

followed in the regular course of business, pursuant to which notices have been addressed and

mailed.” Ma v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 597 F.3d 84, 92 (2d Cir. 2010). In

Ma, we held that the plaintiff’s “[m]ere denial of receipt [was] insufficient” to overcome the

presumption of receipt. Id. Rather, he had to show that “routine office practice was not

followed or was so careless that it would be unreasonable to assume that notice was mailed.” Id.

(internal quotation marks omitted).

       The BOP contends that Davis cannot overcome these presumptions to disprove that the

denial letter was mailed. The words “Via Certified and Return Receipt Mail” were on the denial

letter. And that letter was addressed to the same address Davis provided to the BOP upon his

release, which he has used for correspondence with the district court and this Court. Davis’s

brief appends two documents the BOP mailed to that same address. Based on this record, the

BOP contends that Davis has not demonstrated that “routine office practice was not followed or

was so careless that it would be unreasonable to assume that notice was mailed.” Id. (internal

quotation marks omitted).

       Davis did not allege that the BOP failed to follow “routine office practice” or was “so

careless” as to dissolve the presumption of receipt. Id. But absent discovery, such allegations

would be based on speculation. At the motion to dismiss stage, Davis had no facts with which to

disprove that the letter was mailed beyond contesting receipt – which he did, in his opposition to

the motion to dismiss.




                                                4
         We VACATE in part and remand for discovery concerning the timeliness of Davis’s

transfer claim because the record is insufficient to determine when the BOP mailed the denial

letter, thus triggering the FTCA statute of limitations.

         B.     Exhaustion

         We AFFIRM as to Davis’s claim against Sadowski. His administrative complaint

claimed that he was improperly transferred to FMC Butner because that facility was not

equipped to provide proper medical care. That is different from his allegation that Sadowski was

negligent in resolving his administrative complaint arising from that transfer. Accordingly, the

district court did not err in finding his negligence claim against Sadowski unexhausted.

         For the foregoing reasons, the judgment of the district court is AFFIRMED in part and

VACATED in part, and the case is REMANDED for further proceedings consistent with this

order.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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