McCracken v. Brookhaven Science Associates, LLC , 376 F. App'x 138 ( 2010 )

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