John Washington v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN T. WASHINGTON, No. 17-16031
Plaintiff-Appellant, D.C. No. 2:17-cv-00229-JCM-VCF
v.
MEMORANDUM*
UNITED STATES OF AMERICA;
EUGENE P. LIBBY, D.O. A Professional
Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
John T. Washington appeals pro se from the district court’s judgment
dismissing his medical malpractice action under the Federal Tort Claims Act
(“FTCA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
*
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).
district court’s dismissal under Fed. R. Civ. P. 12(b)(6). Ebner v. Fresh, Inc., 838
F.3d 958, 962 (9th Cir. 2016). We may affirm on any basis supported by the
record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.
Dismissal of Washington’s state law claims was proper because
Washington’s action was filed more than one year after he discovered his claim,
and Washington has failed to demonstrate that he is entitled to either statutory or
equitable tolling. See Nev. Rev. Stat. §41A.097(2)-(3) (setting forth one-year
limitation period after discovery of professional negligence claim and statutory
tolling for concealment of evidence); Copeland v. Desert Inn Hotel, 673 P.2d 490,
492 (Nev. 1983) (listing non-exhaustive factors considered for equitable tolling).
Contrary to Washington’s contention, the United States was not properly
served, and we do not consider the merits of Washington’s claims against the
United States.
We do not consider arguments and allegations raised for the first time on
appeal, see Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009), or documents
not presented to the district court, see United States v. Elias, 921 F.2d 870, 874
(9th Cir. 1990).
AFFIRMED.
2 17-16031