David Linder v. Robert Cully, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2019
• Docket: 19-15094
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID WILLIAM LINDER, No. 19-15094

Plaintiff-Appellant, D.C. No. 3:18-cv-08030-DGC- DMF v.

ROBERT D. CULLY, Jr., NCIS; et al., MEMORANDUM*

Defendants-Appellees,

and

DRUG ENFORCEMENT ADMINISTRATION,

Defendant.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted July 15, 2019**

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

Federal prisoner David William Linder appeals pro se from the district

* 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). court’s judgment dismissing his Federal Tort Claims Act (“FTCA”) claims. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal on the basis of the applicable statute of limitations. Lukovsky v. City &

County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We affirm.

The district court properly dismissed Linder’s action because Linder failed

to file it within the applicable two-year statute of limitations. See Winter v. United

States, 244 F.3d 1088, 1090 (9th Cir. 2001) (FTCA claims are subject to a two-

year statute of limitations); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th

Cir. 1980) (a complaint may be dismissed as time-barred if the running of the

statute of limitations is apparent on the face of the complaint, and the allegations of

the complaint would not permit the plaintiff to prove that the statute was tolled.).

The district court properly concluded that Linder was not entitled to

equitable tolling. See Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (en

banc) (explaining elements necessary for equitable tolling).

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.

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