Loretta Taylor v. Usdoj ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORETTA TAYLOR; ATLANTICA No. 22-16017
KAHAUNANI TANUVASA,
D.C. No.
Plaintiffs-Appellants, 1:20-cv-00224-DKW-KJM
v.
MEMORANDUM*
HIROMICHI KOBAYASHI, individually
and in his official capacity; et al.,
Defendants-Appellees,
and
MIKAEL RIVERA, individually and in his
official capacity; et al.,
Defendants.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, Chief District Judge, Presiding
Submitted February 14, 2023**
Honolulu, Hawaii
Before: BEA, COLLINS, and LEE, Circuit Judges.
*
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).
Appellants Loretta Taylor and Atlantica Kahaunani Tanuvasa alleged that
they were sexually assaulted by correctional officer Mikael Rivera while serving
sentences at the Federal Detention Center in Honolulu. While the United States
Department of Justice investigated these allegations, Appellants sued Rivera for
damages and ultimately settled with him. Appellants also pursued (1) Bivens claims
against warden Hiromichi Kobayashi and correctional officer Edward Balacua for
failing to train and supervise Rivera and for not adequately responding to
Appellants’ complaints, and (2) a Federal Tort Claims Act (FTCA) claim against the
United States. They now appeal the district court’s dismissal with prejudice of both
claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not err in dismissing Appellants’ Bivens claims.
The district court correctly dismissed Appellants’ claims as “not cognizable”
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), because the claims arose in a “new context” and “special factors”
counsel hesitation in extending Bivens to that context. See Ziglar v. Abbasi, 137 S.
Ct. 1843, 1859–60 (2017). There are “alternative remedies for aggrieved parties in
[Appellants’] position that independently foreclose a Bivens action here.” Egbert v.
Boule, 142 S. Ct. 1793, 1806 (2022). This includes the Bureau of Prisons’ formal
review process for inmate complaints. 28 C.F.R. § 542.10(a). “So long as Congress
or the Executive has created a remedial process that it finds sufficient to secure an
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adequate level of deterrence, the courts cannot second-guess that calibration by
superimposing a Bivens remedy.” Egbert, 142 S. Ct. at 1807.
2. The district court did not err in dismissing Appellants’ FTCA claims.
The district court correctly dismissed Appellants’ FTCA claims for lack of subject
matter jurisdiction because Appellants failed to present a sum certain damages claim
in writing to an appropriate agency before filing their FTCA claims. See 28 U.S.C.
§§ 2401(b), 2675(a); Blair v. I.R.S., 304 F.3d 861, 864 (9th Cir. 2002). This
exhaustion requirement “is jurisdictional and may not be waived.” D.L. by &
through Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017). We review de novo
the district court’s dismissal for lack of subject matter jurisdiction. In re Dynamic
Random Access Memory Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008).
Appellants concede that they did not comply with the FTCA’s exhaustion
requirement. Instead, they argue that they “attempted to exhaust administrative
remedies but were thwarted and threatened and retaliated against.” Even accepting
these allegations as true, Appellants have cited no case in which we (or any other
court) have overlooked the requirement that an FTCA claim be filed with the
appropriate agency before filing suit in federal court. At most, Appellants’
allegations might be read to suggest that, if they now complied with that exhaustion
requirement, they could be entitled to some measure of equitable tolling of the time
frame in which they were required to file their claims with the Bureau of Prisons.
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See United States v. Kwai Fun Wong, 575 U.S. 402 (2015) (holding that the two-
year statute of limitations in 28 U.S.C. § 2401(b) may be equitably tolled). But
Appellants bear the burden of proving entitlement to equitable tolling, see Redlin v.
United States, 921 F.3d 1133, 1140 (9th Cir. 2019), and have presented no
allegations, proof, or argument on this front. The district court did not err.
3. The district court did not abuse its discretion by dismissing Appellants’
claims without leave to amend. Although “[t]he standard for granting leave to
amend is generous,” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir.
2011), “leave to amend is not to be granted automatically,” Jackson v. Bank of
Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). “We review the denial of leave to
amend for an abuse of discretion, but we review the question of futility of
amendment de novo.” United States v. United Healthcare Ins. Co., 848 F.3d 1161,
1172 (9th Cir. 2016) (cleaned up). “Under a futility analysis, dismissal without leave
to amend is improper unless it is clear, upon de novo review, that the complaint
could not be saved by any amendment.” Corinthian Colls., 655 F.3d at 995 (cleaned
up).
Here, Appellants “failed to set forth any facts”—before either the district court
or this court—which they “could add to save [their] complaint.” Janas v.
McCracken (In re Silicon Graphics Inc. Secs. Litig.), 183 F.3d 970, 991 (9th Cir.
1999), superseded by statute on other grounds. See also Halkin v. VeriFone Inc.
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(VeriFone Secs. Litig.), 11 F.3d 865, 872 (9th Cir. 1993) (plaintiffs failed to “point
to facts which might be added to save their complaint”); Gardner v. Martino, 563
F.3d 981, 991 (9th Cir. 2009) (plaintiffs failed to propose any “new facts or legal
theories” for an amended complaint). Instead, Appellants argue again that the
district court erred by not finding their previous pleadings “presented a colorable
claim.” Thus, the district court did not abuse its discretion when it dismissed
Appellants’ second amended complaint without leave to amend.
AFFIRMED.
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