Michael Eggers v. United States Attorney General

FILED
NOT FOR PUBLICATION MAR 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL WAYNE EGGERS, No. 08-56257
Plaintiff - Appellant, D.C. No. 2:08-cv-00986-JSL-AGR
v.
MEMORANDUM *
UNITED STATES; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Michael Wayne Eggers, an Alabama state prisoner, appeals pro se from the
district court’s judgment dismissing his action alleging violations under 42 U.S.C.
§ 1983, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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U.S. 388 (1971), and the Federal Tort Claims Act. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a district court’s dismissal under 28 U.S.C.
§ 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Eggers’s section 1983 and Bivens
claims as time-barred. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (explaining
that the statute of limitations begins to run when the plaintiff has a complete and
present cause of action); Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th
Cir. 2007) (applying California’s former one-year personal injury statute of
limitations to section 1983 claims that were more than one-year old as of January
1, 2003); Van Strum v. Lawn, 940 F.2d 406, 409-10 (9th Cir. 1991) (holding that
the statutes of limitation for Bivens and section 1983 actions are the same); see also
Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (describing three conditions
required to equitably toll a statute of limitations under California law).
The district court properly determined that it lacked jurisdiction over the tort
claims because Eggers did not allege that he filed an administrative claim within
two years after his claims accrued. See 28 U.S.C. § 2401(b) (providing that “a tort
claim against the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim
accrues”); McGraw v. United States, 281 F.3d 997, 1001 (9th Cir. 2002) (stating
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that the two-year limitation in § 2401(b) is a “threshold jurisdictional
requirement”), amended on denial of reh’g, 298 F.3d 754 (9th Cir. 2002); see also
Marley v. United States, 567 F.3d 1030, 1037 (9th Cir. 2009) (explaining that the
timing requirement contained in § 2401(b) is subject neither to estoppel principles
nor to equitable considerations), cert. denied, 175 L. Ed. 2d 559 (2009).
The district court did not abuse its discretion by denying Eggers leave to
amend his complaint because further amendment would be futile. See Chappel v.
Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000).
The district court did not abuse its discretion by denying Eggers’s request
for appointment of counsel because the case did not present exceptional
circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004).
Eggers’s remaining contentions are unpersuasive.
Eggers’s “motion for briefing schedule/case disposition information” is
denied as moot.
AFFIRMED.
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