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 2019-07

David Linder v. Robert Cully, Jr. ( 2019 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUL 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID WILLIAM LINDER,                           No. 19-15094
Plaintiff-Appellant,            D.C. No. 3:18-cv-08030-DGC-
DMF
v.
ROBERT D. CULLY, Jr., NCIS; et al.,             MEMORANDUM*
Defendants-Appellees,
and
DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted July 15, 2019**
Before:      SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Federal prisoner David William Linder appeals pro se from the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s judgment dismissing his Federal Tort Claims Act (“FTCA”) claims. We
have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo a district court’s
dismissal on the basis of the applicable statute of limitations. Lukovsky v. City &
County of San Francisco,
    535 F.3d 1044
    , 1047 (9th Cir. 2008). We affirm.
The district court properly dismissed Linder’s action because Linder failed
to file it within the applicable two-year statute of limitations. See Winter v. United
States,
    244 F.3d 1088
    , 1090 (9th Cir. 2001) (FTCA claims are subject to a two-
year statute of limitations); Jablon v. Dean Witter & Co.,
    614 F.2d 677
    , 682 (9th
Cir. 1980) (a complaint may be dismissed as time-barred if the running of the
statute of limitations is apparent on the face of the complaint, and the allegations of
the complaint would not permit the plaintiff to prove that the statute was tolled.).
The district court properly concluded that Linder was not entitled to
equitable tolling. See Wong v. Beebe,
    732 F.3d 1030
    , 1052 (9th Cir. 2013) (en
banc) (explaining elements necessary for equitable tolling).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
AFFIRMED.
2                                       19-15094