Farina v. Davis

-1-
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
JOHN FARINA,
Plaintiff,
-v- 	8:24-CV-395 (AJB/DJS)
UNITED STATES OF AMERICA,
Defendant.
_____________________________________
Hon. Anthony Brindisi, U.S. District Judge:
DECISION and ORDER
I. 	INTRODUCTION
On March 20, 2024, pro se plaintiff John Farina (“plaintiff”) filed this action alleging that
an agent employed by the United States Department of Homeland Security (“DHS”) violated his
civil rights under 42 U.S.C. § 1983 and the Federal Tort Claims Act (“FTCA”) when she seized
his wallet and improperly turned it over to an unauthorized, unknown person, which caused him
to suffer from identity theft. Dkt. No. 1. Along with his complaint, plaintiff moved for leave to
proceed in forma pauperis (“IFP Application”). Dkt. No. 2.
The case was initially assigned to Senior U.S. District Judge David N. Hurd, who referred
the file to U.S. Magistrate Judge Daniel J. Stewart for an initial review. Although Judge Stewart
granted plaintiff’s IFP Application, Dkt. No. 7, he recommended that plaintiff’s initial complaint
be dismissed with leave to amend. Dkt. No. 8. As Judge Stewart explained, plaintiff’s 42 U.S.C.
§ 1983 claims failed because the named defendant was alleged to be a DHS agent who cannot be
sued under the § 1983 statute. Id. As for plaintiff’s FTCA claims, Judge Stewart explained that
plaintiff’s complaint did not plausibly allege that he had exhausted his administrative remedies
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 1 of 14

-2-
with respect to that claim. Id. After Judge Stewart’s recommendation was adopted by Judge
Hurd, Dkt. No. 9, plaintiff filed a first amended complaint, Dkt. No. 10.
There, plaintiff re-alleged that defendant United States of America (“defendant”) violated
his rights under the FTCA when a DHS agent seized his wallet and turned it over to an unknown
person, causing him to suffer from identity theft. Dkt. No. 10. Again, however, Judge Stewart
recommended that plaintiff’s amended complaint be dismissed with leave to amend because, as
before, the new pleading failed to plausibly allege that plaintiff had exhausted his administrative
remedies before filing suit under the FTCA. Dkt. No. 11. After that recommendation was again
adopted by Judge Hurd, Dkt. No. 13, plaintiff filed a second amended complaint, Dkt. No. 15.
There, plaintiff re-alleged his FTCA claim based on the loss of his wallet and its contents
following his arrest. Dkt. No. 15. This time, Judge Stewart concluded that plaintiff had attached
evidence to the complaint tending to show that he had filed an administrative tort claim (called a
“Standard Form 95”) before filing this FTCA action. Dkt. No. 16. Accordingly, Judge Stewart
accepted plaintiff’s second amended complaint for filing, ordered service on defendant, and set a
deadline for defendant to respond to, or move against, the operative pleading. Id. Thereafter, the
matter was reassigned to this Court for all further proceedings. Dkt. No. 27.
On June 11, 2025, defendant moved under Rule 12(b) of the Federal Rules of Civil
Procedure seeking to dismiss plaintiff’s second amended complaint because plaintiff failed to
timely exhaust his administrative remedies.1 Dkt. No. 45. The motion has been fully briefed,
Dkt. Nos. 50, 51, and will be considered on the basis of the submissions without oral argument.
1 In his opposition, plaintiff contends that defendant’s motion to dismiss is untimely under the Federal Rules of
Civil Procedure and the Local Rules. Dkt. No. 50 at 4. Plaintiff is incorrect. Courts may extend the response
deadlines in appropriate circumstances, and in this case the assigned magistrate judge did so. Dkt. No. 44.
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 2 of 14

-3-
II. 	BACKGROUND
On March 24, 2021, a DHS agent took possession of plaintiff’s wallet, which had been
seized by New York State Police during his arrest. Dkt. No. 15 ¶ 4. Thereafter, plaintiff alleges
that the DHS agent negligently delivered the wallet to an “unknown civilian who claimed said
wallet without permission of plaintiff,” “causing identity theft and loss of money associated with
credit/debit cards enclosed in [the] wallet.” Id. ¶ 5. As plaintiff explains, this wallet contained
his birth certificate, social security card, state-issued identification card, and debit cards. Id. ¶ 9.
According to plaintiff, the DHS agent’s “negligent decisions” caused him to suffer “larceny” in
the amounts of $850 on his Cash App debit card, $2,400 on his two Lilly debit cards, and $7,100
on his Direct Express debit card. Id. ¶ 10.
III. 	LEGAL STANDARDS
A. Rule 12(b)(1)
The Federal Rules of Civil Procedure permit a party to move to dismiss a complaint for
“lack of subject-matter jurisdiction.” FED. R. C IV. P. 12(b)(1). “A case is properly dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1) 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). The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance
of the evidence. Id.
Rule 12(b)(1) motions can be “facial” or “fact-based.” See Carter v. HealthPort Techs.,
LLC, 822 F.3d 47, 56–57 (2d Cir. 2016). A “facial” Rule 12(b)(1) motion is “based solely on the
allegations of the complaint or the complaint and exhibits attached to it.” Id. at 56. Under those
circumstances, the plaintiff bears no evidentiary burden. Katz v. Donna Karan Co., L.L.C., 872
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 3 of 14

-4-
F.3d 114, 119 (2d Cir. 2017). Instead, the court must determine whether the complaint and its
exhibits plausibly allege facts giving rise to subject-matter jurisdiction. Carter, 822 F.3d at 56.
In contrast, a “fact-based” Rule 12(b)(1) motion permits a defendant to proffer evidence
outside of the pleading. See Carter, 822 F.3d at 57. In that scenario, the plaintiff will ordinarily
need to come forward with evidence of their own to controvert the defendant’s showing. Id. If
the defendant identifies “material and controverted” extrinsic evidence, the court “will need to
make findings of fact in aid of its decision.” Id. However, “if the evidence proffered by the
defendant is immaterial because it does not contradict plausible allegations that are themselves
sufficient to show [subject-matter jurisdiction],” the plaintiff may rely on their pleading. Id.
B. Rule 12(b)(6)
The Federal Rules of Civil Procedure permit a party to move to dismiss a pleading for
“failure to state a claim upon which relief can be granted.” FED. R. C IV. P. 12(b)(6). To survive
dismissal, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
To assess this facial plausibility requirement, the court “must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
draw all reasonable inferences in favor of the plaintiff, Chambers v. Time Warner, Inc., 282 F.3d
147, 152 (2d Cir. 2002). In doing so, the court generally confines itself to the facts alleged in the
pleading, documents attached to the complaint or incorporated into it by reference, and matters
of which judicial notice may be taken. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 4 of 14

-5-
IV. 	DISCUSSION
As an initial matter, plaintiff is pro se. That means he is not represented by an attorney.
Therefore, his pleadings and filings must be held to less stringent standards than those that might
be drafted by a lawyer. See Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012). As the Second
Circuit has explained, pro se filings must be “construed liberally” with “special solicitude” and
interpreted to raise the strongest claims they suggest. See, e.g., Hogan v. Fischer, 738 F.3d 509,
515 (2d Cir. 2013).
Even so, plaintiff’s second amended complaint must be dismissed. “The United States,
as sovereign, is immune from suit save as it consents to be sued.” United States v. Sherwood,
312 U.S. 584, 586 (1941). “A waiver of sovereign immunity ‘cannot be implied but must be
unequivocally expressed.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United
States v. King, 395 U.S. 1, 4 (1969)). “In 1946, Congress enacted the Federal Tort Claims Act,
which constitutes a limited waiver by the United States of its sovereign immunity and allows for
a tort suit against the United States under specified circumstances.” Liranzo v. United States,
690 F.3d 78, 84–85 (2d Cir. 2012) (cleaned up).
As amended, the FTCA “allows a plaintiff to bring certain state-law tort suits against the
Federal Government . . . for parties injured by federal employees acting within the scope of their
employment.” Brownback v. King, 592 U.S. 209, 210–11 (2021). Under the FTCA, the federal
courts have jurisdiction over “actionable” claims, which must be:
(1) against the United States; (2) for money damages; (3) for injury
or loss of property, or personal injury or death; (4) caused by the
negligent or wrongful act or omission of any employee of the
Government; (5) while acting within the scope of his office or
employment; (6) under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with
state law where the act or omission occurred.
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 5 of 14

-6-
See 28 U.S.C. § 1346(b) (cleaned up).
Importantly, though, the FTCA’s waiver of sovereign immunity is subject to a number of
conditions, including that “a plaintiff must first file an administrative claim with the appropriate
federal agency before suing for relief in federal court.” Adeleke v. United States, 355 F.3d 144,
153 (2d Cir. 2004). This is known as the “presentment requirement.” Romulus v. United States,
160 F.3d 131, 132 (2d Cir. 1998) (per curiam). “This requirement is jurisdictional and cannot be
waived.” Celestine v. Mt. Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
Defendant contends that plaintiff’s complaint must be dismissed because plaintiff failed
to exhaust his administrative remedies before he filed this FTCA action. Dkt. No. 45-1 at 6.2 As
defendant explains, the “appropriate federal agency”—in this case, the DHS—did not receive an
“administrative claim” from plaintiff until September 26, 2024, “six months after the filing of his
original Complaint in March 2024.” Id.; Litz Decl., Dkt. No. 45-2 ¶¶ 1–9 (defendant’s proof).
In opposition to dismissal, plaintiff argues that he put DHS on written notice of his FTCA
claim when he mailed to the agency the unsigned Standard Form 95 that is attached to his second
amended complaint. Dkt. No. 50 at 2. Plaintiff explains that this “unsigned Form 95” is dated
March 13, 2023, which is “a full week ahead of the [two-year] deadline” imposed by the FTCA’s
statute of limitations. Id. In plaintiff’s view, the fact that DHS “failed to acknowledge the Form
95 on time has no bearing on the plaintiff and should not be held against him.” Id. at 3.
To adequately “present” an FTCA claim, the plaintiff must provide a written notice to the
federal agency with “enough information to permit the agency to conduct an investigation and to
estimate the claims’ worth.” Romulus, 160 F.3d at 132. The plaintiff must wait until the agency
issues a final denial “in writing,” 28 U.S.C. § 2675(a), after which time he has six months to file
2 Pagination corresponds to CM/ECF headers.
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 6 of 14

-7-
an action in federal court, 28 C.F.R. § 14.9. “The failure of an agency to make final disposition
of a claim within six months after it is filed shall . . . be deemed a final denial of the claim for
purposes of this section.” 28 U.S.C. § 2675(a).
Broadly construed, plaintiff’s opposition indicates that he learned of the alleged harm at
some point after his March 24, 2021 arrest, when he received a security alert on one of the debit
cards. See Dkt. No. 50 at 2. This security alert prompted plaintiff to investigate, which revealed
“the negligent actions of” the DHS agent. Id. Although this explanation leaves it less than fully
clear about the exact date on which plaintiff allegedly mailed out to DHS the unsigned Standard
Form 95 that is attached to his second amended complaint, the record indicates that it was most
likely to have been on either March 12, 2023 (the date of a covering letter written by his counsel
in the criminal case accompanied by a certified mail receipt) or, at the latest, March 13, 2023 (the
date typed on the unsigned Standard Form 95 itself).
In light of plaintiff’s pro se status, either of these March 2023 mailings would be timely
for the purpose of the FTCA’s statute of limitations, which requires that the claimant’s written
notice be presented to the appropriate agency “within two years after such claim accrues.” 28
U.S.C. § 2401(b).3 An FTCA claim accrues “on the date that a plaintiff discovers that he has
been injured,” Valdez v. United States, 518 F.3d 173, 177 (2d Cir. 2008), or when plaintiff “has
or with reasonable diligence should have discovered the critical facts of both his injury and its
cause,” Corcoran v. N.Y. Power Auth., 202 F.3d 530, 544 (2d Cir. 1999) (cleaned up).
Plaintiff’s submissions establish that he learned of the alleged harm at some point after
his March 24, 2021 arrest, which means that a valid administrative claim mailed in early March
3 Unlike the “presentment requirement,” discussed infra, the FTCA’s limitations period is not jurisdictional and
may be subject to equitable tolling in an appropriate case. United States v. Wong, 575 U.S. 402, 410–12 (2015); see
also Torres v. United States, 612 F. App’x 37, 41 (2d Cir. 2015) (summary order) (holding dismissal of FTCA claim
on time-bar “requires a dismissal on substantive, not jurisdictional, grounds”).
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 7 of 14

-8-
2023 would fall within the FTCA’s two-year limitations period. The problem for plaintiff is that
neither of his March 2023 mailings, absent more, are enough to satisfy the FTCA’s “presentment
requirement,” which is a related-but-distinct concept under the FTCA. See Hickman v. Bellevue
Hosp. Ctr., 2024 WL 2112127, at *5 (E.D.N.Y. Jan. 5, 2024) (“Though interrelated, the FTCA’s
presentment requirement and the FTCA’s time limits are distinct.”), adopted by 2024 WL
1756451 (E.D.N.Y. Apr. 24, 2024), reconsideration denied, 2024 WL 2158440 (May 14, 2024).
As defendant points out, the Second Circuit has held that the “mere mailing of a notice of
claim does not satisfy the FCTA’s presentment requirement.” Cooke v. United States, 918 F.3d
77, 82 (2d Cir. 2019). Although proof of delivery might be enough to satisfy this requirement in
an appropriate case, see Shore v. United States, 2024 WL 4350692, at *4–*5 (E.D.N.Y. Sept. 30,
2024), the Second Circuit has emphasized that “[t]he statute and corresponding regulation make
clear that actual receipt is required.” Cooke, 918 F.3d at 82 (emphasis added).
The evidence in the record shows that DHS did not receive plaintiff’s unsigned Standard
Form 95 until September 26, 2024. Litz Decl., Dkt. No. 45-2. This evidence further shows that
the copy of the unsigned Standard Form 95 that DHS received was attached to plaintiff’s second
amended complaint. Id. ¶ 7. In other words, the record establishes that DHS did not receive the
unsigned Standard Form 95 until six months after plaintiff filed this action on March 20, 2024.
Because there is nothing in this record sufficient to contradict defendant’s evidentiary
showing, plaintiff has failed to establish that he exhausted his administrative remedies before
filing this FTCA action.4 See, e.g., Mayes v. United States, 790 F. App’x 338 (2d Cir. 2020)
4 Elsewhere in the record (attached to plaintiff’s first amended complaint) there is a U.S. Postal Service domestic
return receipt addressed to “DHS” that bears a handwritten date of March 6, 2023. Dkt. No. 10 at 10. Although it
seems hard to reconcile the timeline, plaintiff appears to claim that this mailing included the unsigned Standard
Form 95 that is dated March 13, 2023. As defendant notes, this postcard has no printed name or date of delivery or
any postal markings tending to show that it was processed through the facility where plaintiff was incarcerated at the
time. Likewise, although plaintiff’s attorney’s March 12, 2023 covering letter includes a certified mail receipt, Dkt.
No. 50 at 8, this certifies that the mail was sent, not that the mail was received.
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 8 of 14

-9-
(summary order) (affirming dismissal of FTCA claim where written notice filed after lawsuit
was initiated); Liriano v. ICE/DHS, 827 F. Supp. 2d 264, 269 (S.D.N.Y. 2011) (dismissing a
“prematurely filed FTCA claim[ ]”). Accordingly, plaintiff’s second amended complaint must
be dismissed for lack of subject matter jurisdiction.
In his opposition, plaintiff argues that his arrest, conviction, and incarceration put him at
a disadvantage because he is closed off from the public and is constantly being moved from one
facility to another. Dkt. No. 50 at 2. Broadly construed, the Court understands this argument to
be a claim by plaintiff that, because of his incarcerated status, he is entitled to the favorable legal
presumption that one or more of his March 2023 mailings were received by DHS in satisfaction
of the “presentment requirement.”
This argument implicates a pair of distinct-but-identical-sounding legal doctrines. The
first is the “mailbox rule.” The mailbox rule “is a rebuttable, common-law presumption that a
piece of mail, properly addressed and mailed in accordance with regular office procedures, has
been received by the addressee.” Cooke v. United States, 918 F.3d 77, 81 (2d Cir. 2019). This
presumption was incorporated when the Second Circuit borrowed from state common law. See
Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir. 2004) (citing Meckel v. Cont’l Res. Co., 758
F.2d 811, 817 (2d Cir. 1985)).
The second is the “prison mailbox rule.” The prison mailbox rule creates an “exception”
to certain filing deadlines when the plaintiff is incarcerated and unrepresented. “Unlike other
litigants, the pro se prisoner litigant cannot personally ensure receipt of his legal documents by
the court clerk.” Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993). The prison mailbox rule, in
the contexts in which it applies, deems a document “filed” as of the date that it was turned over
to prison officials for mailing. Id. This “exception” is rooted in the Supreme Court’s decision in
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 9 of 14

-10-
Houston v. Lack, 487 U.S. 266 (1988), which concluded that “administrative concerns” found in
the prison context favored a “bright-line rule” that deemed the prisoner’s notice of appeal filed
when it was “delivered to the prison authorities for forwarding to the court clerk.” Id. at 275–76.
The distinction between these two mailbox rules requires discussion because the Second
Circuit’s case law appears to treat them differently in the FTCA context. First, in 1999, in a case
called Tapia-Ortiz v. Doe, a panel of the Second Circuit held that the prison mailbox rule applies
“to an FTCA administrative filing.” 171 F.3d 150 (2d Cir. 1999). But later, in 2019, in a case
called Cooke v. United States, a different panel of the Second Circuit held that the common-law
mailbox rule “is inapplicable to claims brought under the FTCA.” 918 F.3d 77 (2d Cir. 2019).
There are a couple ways to reconcile Tapia-Ortiz and Cooke. The first is to conclude that
the two circuit opinions dealt with distinct “mailbox rules” and therefore have nothing to do with
each other. Under that reading, prisoner-plaintiffs are still fully entitled to take advantage of the
prison mailbox rule for FTCA administrative filings for any purpose despite Cooke’s contrary
holding and cautionary instruction that exceptions to sovereign immunity must be strictly
construed in favor of the sovereign. At least one district court in our circuit has taken that
approach, finding it noteworthy that Cooke did not discuss or cite Tapia-Ortiz. See Schulte v.
United States, 2024 WL 708196, at *3 (S.D.N.Y. Feb. 21, 2024) (observing “tension between the
Second Circuit’s analysis in Tapia-Ortiz and its later analysis in Cooke” but concluding Tapia-
Ortiz remained good law).
A closer reading of the two cases can probably resolve the tension. To start, Tapia-Ortiz
is about the FTCA’s two-year limitations period. In applying the prison mailbox rule to save the
pro se prisoner-plaintiff’s FTCA claim (which had been received by the agency literally one day
too late), the Tapia-Ortiz panel reasoned that, “with regard to the difficulties inherent in being a
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 10 of 14

-11-
pro se prisoner litigant,” there was “no difference between the filing of a court action and the
filing of an administrative action.” Id. at 152.
Notably, however, in reaching that conclusion, the panel readily acknowledged that “[the
Supreme Court’s decision in Houston v. Lack, from which the prison mailbox rule originated]
does not apply. . . when there is a specific statutory regime to the contrary.” Tapia-Ortiz, 171
F.3d at 152 n.1. That observation matters in this situation because Cooke implicates a different
aspect of the FTCA’s “statutory regime.”
Unlike Tapia-Ortiz, which dealt with the limitations period in 28 U.S.C. § 2401(b),
Cooke examined the presentment requirement in 28 U.S.C. § 2675. These requirements are
related, but they remain distinct.5 Hardie v. United States, 2018 WL 5268112, at *2 (E.D.N.Y.
Oct. 23, 2018) (distinguishing between the limitations period and presentment requirement). As
relevant here, Cooke held that “the mere mailing of a notice of claim does not satisfy the FTCA’s
presentment requirement” because “[t]he statute and corresponding regulation make clear that
actual receipt is required.” 918 F.3d at 82.
The issue in this case is about the FTCA’s presentment requirement, not the limitations
period. So Cooke controls. But even if Tapia-Ortiz were understood to create an exception to
the FTCA’s presentment requirement for pro se prisoner-litigants, the prison mailbox rule would
not apply in this case for an independent reason: an incarcerated pro se plaintiff who delivers a
document to someone outside the prison system for mailing is not entitled to claim its benefit.
See Knickerbocker v. Artuz, 271 F.3d 35, 37 (2d Cir. 2001).
5 The Seventh Circuit has apparently rejected the idea that this distinction can make a difference. Censke v. United
States, 947 F.3d 488, 492 (7th Cir. 2020) (rejecting argument “the prison-mailbox rule cannot apply when a statute
or regulation defines when a complaint is considered filed”). But that precedent does not control the outcome in this
case.
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 11 of 14

-12-
The best evidence in the record to show that the unsigned Standard Form 95 was actually
ever mailed to DHS is the March 12, 2023 cover letter from plaintiff’s criminal counsel, which
included a certified mail receipt. Dkt. No. 50 at 8. But because plaintiff’s criminal counsel is
someone who was outside the prison system, the prison mailbox rule (and Tapia-Ortiz) cannot
apply to this mailing, which fails to establish “actual receipt” (required by Cooke). Accordingly,
plaintiff’s second amended complaint must be dismissed for lack of subject matter jurisdiction.
Even assuming otherwise, Tapia-Ortiz’s plaintiff-friendly prison mailbox rule does not
save plaintiff’s second amended complaint from dismissal. The “presentment requirement” is
satisfied:
when a Federal agency receives from a claimant, his duly authorized
agent or legal representative, an executed Standard Form 95 or
other written notification of an incident, accompanied by a claim for
money damages in a sum certain for injury to or loss of property,
personal injury, or death alleged to have occurred by reason of the
incident; and the title or legal capacity of the person signing, and
is accompanied by evidence of his authority to present a claim on
behalf of the claimant as agent, executor, administrator, parent,
guardian, or other representative.
28 C.F.R. § 14.2(a) (emphases added). In other words, an “executed” Standard Form 95 must be
“sign[ed],” either by the claimant himself or by the claimant’s duly authorized agent. Id.
Plaintiff has not produced a signed Standard Form 95, or any other signed notification of
the incident. Instead, the written notification on which plaintiff has relied is the “unsigned Form
95” that is dated March 13, 2023. Dkt. No. 50 at 2 (emphasis added). This unsigned Standard
Form 95 is attached to the second amended complaint. Dkt. No. 10 at 7. Multiple courts have
held that the FTCA’s presentment requirement is not satisfied where, as here, the only written
notification offered by the plaintiff is an unsigned or unexecuted Standard Form 95. See Levine
v. United States, 2016 WL 3360663, at *4 (D.N.J. June 8, 2016) (holding that 28 C.F.R. § 14.2’s
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 12 of 14

-13-
presentment requirement was not satisfied where SF-95 was “not signed or dated”); Acheampong
v. United States, 2002 WL 32130108, at *2 (E.D. Pa. Oct. 16, 2002) (“The copy of an unsigned
SF-95, standing alone, is legally insufficient proof of the [agency’s] alleged receipt of [the
plaintiff’s] FTCA claim.”).
This outcome might seem harsh. But courts must “strictly construe matters concerning
the waiver of sovereign immunity in favor of the government,” Cooke, 918 F.3d at 80, and the
presentment requirement “applies equally to litigants with counsel and to those proceeding pro
se.” Adeleke, 355 F.3d at 153.
Although courts make special efforts to prevent pro se litigants from the “inadvertent
forfeiture of important rights because of their lack of legal training,” Kotler v. Jubert, 986 F.3d
147, 156 (2d Cir. 2021) (cleaned up), there is no legal training needed to understand what it took
to “execute” a Standard Form 95, which contains a set of clear, simple instructions about how to
properly fill out the document.
As the Seventh Circuit has explained, “there is a difference between generously
construing a pro se complaint and effectively excusing a pro se plaintiff from the statutorily
mandated exhaustion requirement.” Chronis v. United States, 932 F.3d 544, 548 (7th Cir. 2019)
(footnote omitted). Accordingly, plaintiff’s second amended complaint must be dismissed for
lack of subject matter jurisdiction.
V. 	CONCLUSION
Plaintiff has failed to establish that he exhausted his administrative remedies before filing
this FTCA action. Although the Court cannot exercise jurisdiction over plaintiff’s lawsuit at this
time, it might still be possible for plaintiff to properly exhaust his administrative remedies and, if
necessary, to return to federal court. Under 28 U.S.C. § 2679(d)(5), the statute appears to give a
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 13 of 14

-14-
claimant whose suit is dismissed on presentment grounds a sixty-day period in which to attempt
to comply with the statute and regulation.6
Therefore, it is
ORDERED that
1. Defendant’s motion to dismiss plaintiff’s second amended complaint for lack of
subject matter jurisdiction (Dkt. No. 45) is GRANTED; and
2. Plaintiff’s second amended complaint (Dkt. No. 15) is DISMISSED without prejudice.
The Clerk of the Court is directed to terminate the pending motion, enter a judgment
accordingly, and close the file.
IT IS SO ORDERED.
Dated: November 24, 2025
Utica, New York
6 Even if the § 2401(b) statute of limitations expired before the March 2023 filings, “it is still possible, though it is
more difficult, to remedy the mistake: the plaintiff can assert an administrative claim, and if the agency denies it,
[he] can sue again and ask the court to equitably toll the statutory clock.” Chronis, 932 F.3d at 549 (collecting
cases).
Case 8:24-cv-00395-AJB-DJS Document 54 Filed 11/24/25 Page 14 of 14