09-3957-pr
Accolla v. United States Government


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMM 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 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST 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 18th day of June, two thousand ten.

PRESENT:
                  RALPH K. WINTER,
                  PETER W. HALL,
                       Circuit Judges,
                  MIRIAM GOLDMAN CEDARBAUM,*
                       District Judge.

____________________________________

Raymond W. Accolla,

                           Plaintiff-Appellant,

                  v.                                             09-3957-pr

United States Government, Rocco Pozzi,
Commissioner, WCJ, Attending Physician,
WCJ, Gail Bailey, Medical Director, WCJ
and Westchester Medical Center,

                           Defendants-Appellees.




         *
         Miriam Goldman Cedarbaum, of the United States District Court for the Southern
District of New York, sitting by designation.
FOR APPELLANT:                                         Raymond W. Accolla, pro se, Butner, North
                                                       Carolina.

FOR UNITED STATES APPELLEES:                           Preet Bharara, United States Attorney for
                                                       the Southern District of New York, Joseph
                                                       N. Cordaro, Sarah S. Norman, Assistant
                                                       United States Attorneys, New York, New
                                                       York.

FOR WESTCHESTER COUNTY APPELLEES:                      Mary Lynn Nicolas, Westchester County
                                                       Attorney’s Office, White Plains, New York.

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

New York (McMahon, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Appellant appeals from the district court’s order dismissing claims pursuant to the

Federal Tort Claims Act (“FTCA”), Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983. We assume familiarity with the facts and

proceedings below and the identification of issues on appeal.

       This Court reviews de novo both a district court’s dismissal of a complaint pursuant to

Rule 12(b) and its grant of judgment on the pleadings pursuant to Rule 12(c), “construing the

complaint liberally, accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff's favor.” Chambers v. Time Warner, Inc., 282 F.3d 147 (2d

Cir. 2002); see Hardy v. New York City Health & Hospitals Corp., 164 F.3d 789, 792 (2d Cir.

1999); Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir. 1994). To state a claim, a complaint

must plead "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009) (quoting Bell Atlantic Corp. v.


                                                   2
Twombly, 550 U.S. 544, 570 (2007)). This Court is required to construe pro se complaints

liberally, see Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009), and must read them with

“special solicitude” and interpret them to raise the “strongest [claims] that they suggest,”

Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam).

       “The FTCA requires that a claimant exhaust all administrative remedies before filing a

complaint in federal district court. This requirement is jurisdictional and cannot be waived.”

Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). The

statute provides that “a tort claim against the United States shall be forever barred unless it is

presented in writing to the appropriate Federal agency within two years after such claim accrues

. . ..” 28 U.S.C. § 2401(b). An FTCA claim accrues at the time of the plaintiff's injury,

“although in certain instances, particularly in medical malpractice cases, accrual may be

postponed until the plaintiff has or with reasonable diligence should have discovered the critical

facts of both his injury and its cause.” Barrett v. United States, 689 F.2d 324, 327 (2d Cir.

1982); see also Valdez v. United States, 518 F.3d 173, 177 (2d Cir. 2008).

       Here, Appellant’s New York claims accrued, at the latest, in December 2004, and he did

not file an administrative claim with the Bureau of Prisons until November 2007. The district

court properly concluded, therefore, that it lacked subject matter jurisdiction over the FTCA

claims. Given the well established general rule that a court of appeals will not consider an issue

raised for the first time on appeal, we decline to reach Appellant’s arguments, made for the first

time on appeal, that FTCA exhaustion was not required because Appellant presented

constitutional questions and the remedies were ineffective. See Singleton v. Wulff, 428 U.S. 106,

120-21 (1976).


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       The district court properly dismissed the Bivens claim as time-barred, as any such claim

accrued in 2004, was subject to a three-year statute of limitations, and the complaint was not

filed until July 2008. See Owens v. Okure, 488 U.S. 235, 251 (1989) (statute of limitations for a

Bivens actions arising in New York is three years).

       We have considered all of Appellants’ arguments on appeal and find them to be without

merit. Accordingly, the judgment of the district court is AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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