Opinion
No. 09-1919-cv.
May 18, 2010.
Appeal from the United States District Court for the Eastern District of New York (Bianco, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the United States District Court for the Eastern District of New York be AFFIRMED and plaintiffs motion for leave to amend her pleadings is DENIED.
Catherine H. Megna, pro se, Bellmore, New York, for Appellant.
Vincent Lipari, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Central Islip, New York, for Appellee Food and Drug Administration.
Lawrence J. Reina and Adam M. Masin, Reed Smith LLP, New York, New York, and Shannon E. McClure, Reed Smith, LLP, Philadelphia, Pennsylvania, for Appellees Schering-Plough and Fred Hassan.
SUMMARY ORDER
Plaintiff appeals from the judgment of the United States District Court for the Eastern District of New York (Bianco, J.), granting the Schering-Plough defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), granting the Food and Drug Administration's ("FDA") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), and declining to exercise supplemental jurisdiction over plaintiffs state law claims. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
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, 603 F.3d 15, 20 (2d Cir. 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 21.
In considering the motion pursuant to Rule 12(b)(6) to dismiss for failure to state a claim, the district court properly assumed the facts alleged by plaintiff to be true and gave plaintiffs complaint its most liberal construction, reading it "to raise its strongest" possible arguments and claims. Megna v. Food Drug Admin., No. 08 Civ. 1435(JFB)(WDW), 2009 WL 749900, at *2, *4 (E.D.N.Y. Mar. 17, 2009).
Upon a de novo review of the record, Morrison v. Nat'l Austl Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), we conclude that the district court properly determined that no claim pursuant to 42 U.S.C. § 1983 can exist against the Schering-Plough defendants because they are not state actors and did not act in concert with state actors. See Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004). In addition, the district court correctly held that the actions of the Schering-Plough defendants cannot give rise to a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
With respect to the FDA, the district court construed plaintiffs complaint to assert a claim under the Federal Tort Claims Act ("FTCA"), finding that "any other constitutional tort claim . . . under any other theory of liability . . . is barred by the doctrine of sovereign immunity." Megna, 2009 WL 749900, at *8 n. 11. The district court dismissed plaintiffs claim against the FDA for failure to exhaust administrative remedies as required by the FTCA. Id. at *9. We agree with the district court that, to the extent that the claim is that the FDA committed a tort against Megna, any such claim is governed by the FTCA and plaintiff failed to exhaust her claims under that statute. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
As the district court properly dismissed plaintiffs federal claims, we cannot say that dismissal of plaintiffs state law claims was an abuse of discretion. See Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006).
Finally, we decline to exercise our discretion to consider plaintiffs claims raised for the first time on appeal, and deny her motion to amend her pleadings. See Virgilio v. City of NY., 407 F.3d 105, 118 (2d Cir. 2005).
We have considered all of plaintiffs claims that are properly before us and find them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED and plaintiffs motion to amend her pleadings in this matter is DENIED.