Brendan Kuklok v. U.S. Dept. of Veterans Affairs

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2022
• Docket: 21-15105
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRENDAN KUKLOK, No. 21-15105

Plaintiff-Appellant, D.C. No. 4:19-cv-02958-DMR

v. MEMORANDUM* U.S. DEPARTMENT OF VETERANS AFFAIRS,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Donna M. Ryu, Magistrate Judge, Presiding**

Submitted January 19, 2022***

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Brendan Kuklok appeals pro se from the district court’s judgment dismissing

his action alleging claims under the Federal Tort Claims Act (“FTCA”), Privacy

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Act (“PA”), and state law. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir.

2011) (dismissal on the basis of the statute of limitations); Brady v. United States,

211 F.3d 499, 502 (9th Cir. 2000) (dismissal on the basis of lack of jurisdiction due

to failure to exhaust). We affirm.

The district court properly dismissed Kuklok’s claims alleging wrongful

disclosure of his medical records because Kuklok failed to file his action within the

applicable statutes of limitations and failed to allege facts sufficient to show that he

was entitled to equitable tolling. See 5 U.S.C. § 552a(g)(5) (two-year statute of

limitations under the PA); 28 U.S.C. § 2401(b) (two-year statute of limitations

under the FTCA); Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (en banc)

(explaining elements necessary for equitable tolling); Johnson, 653 F.3d at 1010

(equitable tolling based on mental incompetence requires a plaintiff to show

diligence in pursuing claims and to explain how the impairment made it impossible

to meet a filing deadline).

To the extent Kuklok intended to allege a claim for breach of fiduciary duty

based on allegations other than defendant disclosing Kuklok’s medical records, the

district court properly dismissed such a claim without prejudice for lack of subject

matter jurisdiction because Kuklok failed to exhaust his administrative remedies.

See 28 U.S.C. § 2675(a) (setting forth FTCA’s administrative exhaustion

2 21-15105 requirement); Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982) (§ 2675(a)

requires “notice of the manner and general circumstances of injury and the harm

suffered”).

The district court did not abuse its discretion in denying Kuklok leave to file

a fourth amended complaint because amendment would have been futile. See

Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth standard of

review and factors for determining whether to grant leave to amend); Metzler Inv.

GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (“[T]he

district court’s discretion to deny leave to amend is particularly broad where

plaintiff has previously amended the complaint.” (citation and internal quotation

marks omitted)).

The district court did not abuse its discretion in denying Kuklok’s motion for

reconsideration because Kuklok failed to demonstrate any basis for relief. See Sch.

Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th

Cir. 1993) (setting forth standard of review and grounds for reconsideration).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 21-15105