Melchor Limpin v. Robert McSeveney

NOT FOR PUBLICATION FILED
OCT 20 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELCHOR KARL T. LIMPIN, No. 20-55866
Plaintiff-Appellant, D.C. No. 3:16-cv-02351-AJB-BLM
v.
MEMORANDUM*
ROBERT McSEVENEY, Immigration
Judge; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Melchor Karl T. Limpin appeals pro se from the district court’s order
dismissing his action brought under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), arising from his arrest and
detention by Immigration and Customs Enforcement. We have jurisdiction under
*
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).
28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(1). Colony Cove Props., LLC v. City of Carson, 640 F.3d 948,
955 (9th Cir. 2011). We affirm.
The district court properly dismissed Limpin’s claims against defendants in
their official capacities because Limpin failed to establish any statutory waiver of
sovereign immunity. See Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257
(9th Cir. 2008) (holding that Bivens claims are not available against federal
agencies or agents sued in their official capacity); Dunn & Black, P.S. v. United
States, 492 F.3d 1084, 1088 (9th Cir. 2007) (dismissal for lack of jurisdiction is
proper where plaintiff fails to establish an “unequivocally expressed waiver of
sovereign immunity”).
The district court did not abuse its discretion by dismissing Limpin’s claims
against defendants in their individual capacities because Limpin failed to effect
proper service of the summons and amended complaint 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
absent a showing of good cause for failure to serve); Cal. Civ. Proc. Code § 415.30(outlining the requirements for service under California law); Oyama v. Sheehan
(In re Sheehan), 253 F.3d 507, 511-13 (9th Cir. 2001) (setting forth standard of
review and discussing Rule 4(m)’s good cause notice standard and the district
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court’s broad discretion to dismiss an action).
We reject as meritless Limpin’s contention that he should have been granted
leave to amend.
AFFIRMED.
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