Gelazela v. USA

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARK ALAN GELAZELA, No. 25-2277 D.C. No. Plaintiff - Appellant, 1:21-cv-01499-JLT-EPG v. MEMORANDUM* UNITED STATES OF AMERICA; THOMAS MOORE,

Defendants - Appellees,

and

DOUGLAS WHITE, Warden, D. BOLCHER, C. LEPE, K. LEHMAN, OGADEN, FEDERAL BUREAU OF PRISONS,

Defendants.

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding

Submitted July 31, 2026**

* 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). Before: WARDLAW, BADE, and JOHNSTONE, Circuit Judges.

Mark Gelazela appeals the district court’s grant of summary judgement for

the United States and Doctor Thomas Moore. We have jurisdiction under 28

U.S.C. § 1291. Reviewing de novo, Corales v. Bennett, 567 F.3d 554, 562 (9th

Cir. 2009), we affirm.

1. The district court properly granted summary judgment for the United

States because Gelazela’s Federal Torts Claim Act claim (“FTCA”) was untimely.

An FTCA “claim is timely only if it has been: (1) submitted to the appropriate

federal agency within two years of accrual and (2) filed in federal court within six

months of the agency’s final denial.” Redlin v. United States, 921 F.3d 1133, 1136

(9th Cir. 2019); see 28 U.S.C. § 2401(b). The Bureau of Prisons mailed Gelazela

notice that his claim was denied on March 8, 2021. Gelazela filed his complaint in

this action on October 8, 2021—exactly one month after the statute of limitations

ran on September 8, 2021. Gelazela’s FTCA claim was not tolled because the

tolling provision for legal disabilities in 28 U.S.C. § 2401(a) does not apply to tort

claims against the government under 28 U.S.C. § 2401(b). Booth v. United States,

914 F.3d 1199, 1206 (9th Cir. 2019) (“We therefore reject [the plaintiff’s]

argument that the tolling provision in subsection (a) should apply to claims

covered by subsection (b).”). Additionally, Gelazela is not entitled to equitable

tolling, see United States v. Wong, 575 U.S. 402, 420 (2015) (“[T]he FTCA’s time

2 25-2277 bars are nonjurisdictional and subject to equitable tolling.”); Redlin, 921 F.3d at

1140, because he did not pursue his claim with reasonable diligence, see Ramirez

v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (reasoning that the plaintiff did not

diligently pursue his claim and was not entitled to equitable tolling when he filed

other legal documents in the same period). Because Gelazela filed this complaint

one month past the statute of limitations, Gelazela’s claim was “forever barred”

under 28 U.S.C. § 2401(b).

2. The district court properly granted summary judgment for Dr. Moore

because Gelazela failed to produce sufficient evidence to support his Eighth

Amendment deliberate indifference claim.1 “[T]o maintain an Eighth Amendment

claim based on prison medical treatment, an inmate must show ‘deliberate

indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th

Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Deliberate

indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th

Cir. 2004). To satisfy this high standard, Gelazela must demonstrate that “(a) a

1 “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980) (holding that Bivens is available to prisoners in federal prisons when prison officials fail to provide adequate medical care in violation of the Eighth Amendment). The district court properly allowed Gelazela’s Bivens claim to proceed against Dr. Moore because Gelazela’s case is not meaningfully different from Carlson. See Stanard v. Dy, 88 F.4th 811, 816–17 (9th Cir. 2023).

3 25-2277 purposeful act or failure to respond to [his] pain or possible medical need and (b)

harm caused by the indifference.” Jett, 439 F.3d at 1096. Although it is

undisputed that Gelazela had serious medical needs, Gelazela failed to provide

evidence to show that Dr. Moore’s mental culpability exceeded mere negligence.

See Farmer v. Brennan, 511 U.S. 825, 835 (1994). Because negligence does not

amount to deliberate indifference, Gelazela did not establish a constitutional

violation.2

3. The district court did not abuse its discretion when it declined to consider

Gelazela’s surreplies. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d

1195, 1203 (9th Cir. 2009). Under the applicable local rules, “[a]fter a reply is

filed, no additional memoranda, papers, or other materials may be filed without

prior Court approval,” except for in limited circumstances not applicable here.

E.D. Cal. R. 230(m). Gelazela filed surreplies without leave of the court and did

not identify any valid reasons for filing surreplies. While the district court was

required to treat Gelazela with leniency as a pro se litigant, that lenience does not

2 Gelazela contends that Dr. Moore’s MRI order indicating the incorrect knee is evidence of Dr. Moore’s deliberate indifference to his serious medical needs. The district court correctly held that this error likely amounts to negligence or medical malpractice but does not rise to deliberate indifference. Gelazela also argues that Dr. Moore’s confusion over what medical accommodations were in place for Gelazela supports his claim of deliberate indifference. Again, this confusion does not constitute deliberate indifference.

4 25-2277 require a court to allow surreplies. And, in any event, the arguments in the

surreplies do not change our analysis of the underlying merits of Gelazela’s claims.

AFFIRMED.

5 25-2277