Camerano v. United States , 855 F.3d 15 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2025
PETER CAMERANO,
Personal Representative of the Estate of Patrick Camerano,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Torruella, Selya, Kayatta,
Circuit Judges.
Daniel C. Federico and Shaines & McEachern, PA on brief for
appellant.
Rayford A. Farquhar, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.
April 19, 2017
KAYATTA, Circuit Judge. Plaintiff is the son of the
late Patrick Camerano and the personal representative of Patrick's
estate. This lawsuit arises out of Patrick's death, which resulted
from a fall he suffered while on a "respite/nursing stay" at a
facility operated by East Boston Neighborhood Health Center
("EBNHC") at 26 Sturgis Street in Winthrop, Massachusetts.
The underlying facts of this case are detailed in the
district court's published opinion. See Camerano v. United States,
196 F. Supp. 3d 172, 175–76 (D. Mass. 2016). In summary, the
chronology of relevant events is as follows:
 February 24, 2012: When Patrick's second son, Paul--
who lived in the same apartment building as Patrick--
has to travel to Florida, EBNHC arranges for Patrick to
stay temporarily at its Winthrop facility.
 February 26, 2012: At approximately three o'clock in
the morning, Patrick suffers a fall in the hallway of
the Winthrop facility. No witnesses observe Patrick's
fall.
 February 27, 2012: Patrick begins to display signs of
distress and is hospitalized at Boston Medical Center.
 February 28, 2012: Plaintiff receives a phone call from
an EBNHC nurse, who advises him that Patrick has been
involved in an accident and sent to the hospital. Upon
further inquiry, the nurse tells plaintiff that Patrick
has fallen, but that she is "not totally sure."
 February 29, 2012: Patrick is moved to hospice care.
 March 1, 2012: Patrick passes away.
 May 27, 2012: The Commonwealth of Massachusetts issues
Patrick's death certificate. The document specifies
that he died due to a "subdural hemorrhage" that resulted
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from an "unwitnessed fall" at a "respite facility"
located at "26 Sturgis Street, Winthrop, MA."
 June 2012: Plaintiff requests Patrick's medical records
from EBNHC, and receives some, but not all, records.
(He says now that he made this request because he did
"not know[] where [his] father was when he was injured.")
 August 29, 2012: Plaintiff files a voluntary
administration statement with the Massachusetts Probate
and Family Court. The form lists as an asset a
"[w]rongful death action regarding [a] nursing home
facility."
 October 29, 2012: Plaintiff and his attorney obtain an
additional set of Patrick's medical records.
(Plaintiff's brief alleges that "the location and the
proximate cause of the injury . . . were not reasonably
discoverable until" he received these records.)
 March 5, 2014: Plaintiff's attorney sends a letter to
EBNHC, stating plaintiff's "inten[tion] to file a claim
for damages."
 May 15, 2014: Plaintiff's attorney sends a letter styled
as a "Claim" to the United States Department of Health
and Human Services ("HHS"), alleging state common law
and federal statutory violations and seeking unspecified
damages.
 July 16, 2014: Plaintiff's attorney submits a standard
claim form to HHS, seeking $1,700,000 in damages for
Patrick's alleged wrongful death.
As the district court noted in granting summary judgment
to the government, the problem for plaintiff is that he has not
submitted any evidence disputing that EBNHC is a federal entity
under the purview of the United States Public Health Service. As
such, plaintiff's tort claims against EBNHC are considered tort
claims against the United States, see 42 U.S.C. § 233(g), and any
"tort claim against the United States shall be forever barred
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unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues," 28 U.S.C. § 2401(b).
As the chronology reflects, plaintiff did not file his
administrative complaint with HHS until more than two years after
learning that his father had suffered a fatal injury caused by an
unwitnessed fall.1
Plaintiff argues nevertheless that his claim did not
accrue until October 29, 2012, when his newly retained counsel was
able to ascertain "the name of the respite/nursing home where his
late father's accident happened." Alternatively, he argues that
the two-year limitations period should be equitably tolled until
that date because of the government's alleged fraudulent
concealment of "the location and possible causes of the accidental
fall."
The district court's opinion cogently explains why these
arguments fail. See Camerano, 196 F. Supp. 3d at 177–81. We
affirm largely on the basis of that explanation. In brief, there
is no evidence that EBNHC deliberately concealed any material facts
that were needed to put plaintiff on notice of the fact and cause
1Both plaintiff's original complaint and his amended
complaint specify July 16, 2014, as the operative filing date,
presumably because he submitted the relevant claim form to HHS on
or around this date, and because his earlier filings failed to
provide sufficient notice to HHS, see Holloway v. United States,
845 F.3d 487, 489 (1st Cir. 2017) (citing 28 C.F.R. § 14.2(a)).
On appeal, plaintiff does not argue that we should consider any
date other than July 16, 2014, as the operative filing date.
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of his father's injury. See Callahan v. United States, 426 F.3d
444, 454 (1st Cir. 2005). Further, no reasonable jury could find
that plaintiff did not know enough about his father's injury at
least to investigate further by March 1, 2012--and certainly by
May 27, 2012, when the death certificate was issued. See Sanchez
v. United States, 740 F.3d 47, 52 (1st Cir. 2014). And given that
plaintiff has not submitted any evidence disputing that this case
involves employees of the United States Public Health Service
acting within the scope of their employment, 42 U.S.C. § 1983 does
not provide a remedy for plaintiff's alleged injuries even if, as
plaintiff argues, those employees violated the Nursing Home Reform
Act, 42 U.S.C. §§ 1396r–1396r-8. See id. § 233(g) (establishing
the "[e]xclusivity" of the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671–2680, as a remedy for actions such as this one);
McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006) ("[T]o
plead a viable section 1983 claim, a complaint must allege action
under color of state law." (emphasis added)); see also Casey v.
Dep't of Health & Human Servs., 807 F.3d 395, 400–01 (1st Cir.
2015) (noting that "the federal analog to § 1983 suits against
state officials," id. at 398 n.1, is available to redress only a
"limited" range of constitutional violations).2
2The district court's correct dismissal of plaintiff's § 1983
claim thus moots the question of whether plaintiff should have
been granted leave to add another defendant to that claim.
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We add only the following comments in response to several
points that plaintiff emphasizes in his brief. First, plaintiff's
argument that the running of the limitations period should be
deemed to have been stayed until he retained counsel has no support
in the law. Certainly, we do not expect a layperson to know what
statutes of limitations apply. And in most cases some portion of
the relevant limitations period will run before counsel is
retained. That is likely one reason why such periods are not
shorter. Any counsel competent to handle a malpractice claim
against a nursing or health care facility presumably knows that
various statutes of limitations exist, and that the correct one
need be identified if not already known. See Sanchez, 740 F.3d at
54-56. If plaintiff's own lawyer did not tell him about the two-
year limitations period applicable here, then that may well provide
plaintiff with cause to complain. The proper object of such a
complaint, however, would be counsel, not EBNHC or the federal
government.
Second, plaintiff's statement in his affidavit that
records produced by the hospital in June of 2012 were incomplete
fails to get him anywhere because he offers no explanation as to
how the incompleteness prejudiced him in any material way.
Plaintiff alleges no facts making it plausible that the hospital
lulled him into thinking that he had no viable claim. To the
contrary, after receiving the records, plaintiff executed an
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estate-administration form that listed the "wrongful death action
regarding [a] nursing home facility" as an asset of the estate.
He claims that the records that EBNHC provided him prior to
October 29, 2012, did not reveal the name of the relevant facility.
But he already knew the address from the death certificate. That
he also fails to allege that he ever asked about the name of the
facility erects yet another impediment to any plausible contention
that EBNHC, by its silence, misled him about the location at which
his father was injured.
We also decline to find that the district court committed
procedural error in granting summary judgment to the government.
Contrary to plaintiff's assertions otherwise, the government's
memorandum in support of its motion to dismiss contains a section
entitled "Introduction and Undisputed Facts," which cites
plaintiff's own complaints as well as various attached exhibits.
Nor do we find error in the district court's finding that the
address of "26 Sturgis Street, Winthrop, MA" was "EBNHC's address."
The district court was not saying that plaintiff knew that fact.
Rather, the district court was correctly saying that, armed with
the death certificate, plaintiff could have "readily" ascertained
the location at which his father's injury occurred. See Gonzalez
v. United States, 284 F.3d 281, 289 (1st Cir. 2002) (noting that
the existence of a possible claim was not "inherently incapable of
detection . . . through the exercise of reasonable diligence").
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Finally, plaintiff's claim that he was entitled to
prejudgment discovery is defeated by his acquiescence to the
district court's conversion of the government's motion to dismiss
into a motion for summary judgment. See Fed. R. Civ. P. 12(d).
Nor did plaintiff claim in the district court that he lacked the
opportunity to rebut the government's timeliness argument in his
opposition memorandum. The key issues, after all, were what
plaintiff knew and when he knew it. Thus, we cannot say that
plaintiff did not have "reasonable opportunity to present all
material made pertinent to such a motion" or that conversion was
otherwise a "surprise" or "unfair." See Giragosian v. Ryan, 547
F.3d 59, 65 (1st Cir. 2008).
To be sure, it is unfortunate when a potentially
important claim is lost because a deadline is missed. However,
that is the necessary result of the statutory limitations periods
that our elected representatives have seen fit to enact, without
which there would be no repose and claims might be filed long after
the ability to recreate what happened has much diminished.
Plaintiff is a layperson who suspected that he might have a valid
claim arising out of his father's death. Based on what he knew,
the law anticipates that he would do what he did in fact do:
promptly consult a lawyer. Plaintiff's knowledge of his father's
injury, combined with what his lawyer should have known about how
to investigate and preserve any potential claims arising from that
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injury, left him well able to file the appropriate claim form with
HHS within the two-year limitations period established by
Congress. That he did not do so is not the fault of EBNHC or the
government.
For the foregoing reasons, we affirm.
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