Joaquin Acosta v. United States ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       NOV 16 2020
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOAQUIN ANDRES ACOSTA,                          No. 19-55812
    Plaintiff-Appellant,            D.C. No. 5:18-cv-00369-CJC-ADS
    v.
    MEMORANDUM*
    UNITED STATES OF AMERICA; et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Cormac J. Carney, District Judge, Presiding
    Submitted November 9, 2020**
    Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.
    Joaquin Andres Acosta appeals pro se from the district court’s judgment
    dismissing his action alleging federal and state law claims. We have jurisdiction
    under 
    28 U.S.C. § 1291
    . We review de novo. Hebbe v. Pliler, 
    627 F.3d 338
    , 341
    (9th Cir. 2010) (dismissal under Federal Rule of Civil Procedure 12(b)(6)); Serra
    *
    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).
    v. Lappin, 
    600 F.3d 1191
    , 1195 (9th Cir. 2010) (dismissal for lack of subject matter
    jurisdiction under Federal Rule of Civil Procedure 12(b)(1)). We affirm.
    The district court properly dismissed Acosta’s Federal Tort Claims Act
    (“FTCA”) claims because Acosta failed to exhaust his administrative remedies
    against the United States, the only proper defendant for an FTCA claim. See
    McNeil v. United States, 
    508 U.S. 106
    , 113 (1993) (FTCA bars a claimant from
    bringing suit in federal court unless the claimant has first exhausted administrative
    remedies); Ward v. Gordon, 
    999 F.2d 1399
    , 1401 (9th Cir. 1993) (remedy against
    United States under FTCA for actions of federal employee within the scope of
    employment is exclusive of any other civil action).
    The district court properly dismissed Acosta’s 
    42 U.S.C. § 1983
     claims
    because defendants are not state actors. See West v. Atkins, 
    487 U.S. 42
    , 48 (1988)
    (“To state a claim under § 1983, a plaintiff must . . . show that the alleged
    deprivation was committed by a person acting under color of state law.”); Morse v.
    N. Coast Opportunities, 
    118 F.3d 1338
    , 1343 (9th Cir. 1997) (Ҥ 1983 precludes
    liability in federal government actors”).
    The district court properly dismissed Acosta’s claim under California Penal
    Code § 118.1 because Acosta failed to allege facts sufficient to state a plausible
    claim. See Ellis v. City of San Diego, 
    176 F.3d 1183
    , 1189 (9th Cir. 1999)
    (California Penal Code “sections do not create enforceable individual rights”).
    2                                   19-55812
    The district court did not abuse its discretion by dismissing Acosta’s claims
    against defendants Decker, Dier, Magistrate Judge Pym, and the named individual
    defendants’ domestic partners, spouses, or betrotheds because Acosta failed to
    effect proper service of the summons and complaint on these defendants after
    being given notice and an opportunity to do so. See Fed. R. Civ. P. 4(m) (outlining
    requirements for proper service, and explaining that a district court may dismiss for
    failure to serve after providing notice and absent a showing of good cause for
    failure to serve); Oyama v. Sheehan (In re Sheehan), 
    253 F.3d 507
    , 511-12 (9th
    Cir. 2001) (setting forth standard of review and discussing Rule 4(m)’s “good
    cause” standard).
    The district court did not abuse its discretion by denying Acosta’s motions
    for entry of default because defendants did not fail to plead or otherwise defend.
    See Fed. R. Civ. P. 55(a) (providing for entry of default when a defendant “has
    failed to plead or otherwise defend”); Speiser, Krause & Madole P.C. v. Ortiz,
    
    271 F.3d 884
    , 886 (9th Cir. 2001) (setting forth standard of review).
    We reject as without merit Acosta’s contentions that the individual
    defendants were improperly represented by the Department of Justice, the United
    States was required to file a motion for permissive intervention, and Acosta failed
    to receive proper notice of the motions to dismiss.
    AFFIRMED.
    3                                   19-55812