Joaquin Acosta v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 16, 2020
• Docket: 19-55812
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOAQUIN ANDRES ACOSTA, No. 19-55812

Plaintiff-Appellant, D.C. No. 5:18-cv-00369-CJC-ADS

v. MEMORANDUM* UNITED STATES OF AMERICA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted November 9, 2020**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Joaquin Andres Acosta appeals pro se from the district court’s judgment

dismissing his action alleging federal and state law claims. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341

(9th Cir. 2010) (dismissal under Federal Rule of Civil Procedure 12(b)(6)); Serra

* 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). v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010) (dismissal for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1)). We affirm.

The district court properly dismissed Acosta’s Federal Tort Claims Act

(“FTCA”) claims because Acosta failed to exhaust his administrative remedies

against the United States, the only proper defendant for an FTCA claim. See

McNeil v. United States, 508 U.S. 106, 113 (1993) (FTCA bars a claimant from

bringing suit in federal court unless the claimant has first exhausted administrative

remedies); Ward v. Gordon, 999 F.2d 1399, 1401 (9th Cir. 1993) (remedy against

United States under FTCA for actions of federal employee within the scope of

employment is exclusive of any other civil action).

The district court properly dismissed Acosta’s 42 U.S.C. § 1983 claims

because defendants are not state actors. See West v. Atkins, 487 U.S. 42, 48 (1988)

(“To state a claim under § 1983, a plaintiff must . . . show that the alleged

deprivation was committed by a person acting under color of state law.”); Morse v.

N. Coast Opportunities, 118 F.3d 1338, 1343 (9th Cir. 1997) (Ҥ 1983 precludes

liability in federal government actors”).

The district court properly dismissed Acosta’s claim under California Penal

Code § 118.1 because Acosta failed to allege facts sufficient to state a plausible

claim. See Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir. 1999)

(California Penal Code “sections do not create enforceable individual rights”).

2 19-55812 The district court did not abuse its discretion by dismissing Acosta’s claims

against defendants Decker, Dier, Magistrate Judge Pym, and the named individual

defendants’ domestic partners, spouses, or betrotheds because Acosta failed to

effect proper service of the summons and complaint on these defendants 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 after providing notice and absent a showing of good cause for

failure to serve); Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511-12 (9th

Cir. 2001) (setting forth standard of review and discussing Rule 4(m)’s “good

cause” standard).

The district court did not abuse its discretion by denying Acosta’s motions

for entry of default because defendants did not fail to plead or otherwise defend.

See Fed. R. Civ. P. 55(a) (providing for entry of default when a defendant “has

failed to plead or otherwise defend”); Speiser, Krause & Madole P.C. v. Ortiz,

271 F.3d 884, 886 (9th Cir. 2001) (setting forth standard of review).

We reject as without merit Acosta’s contentions that the individual

defendants were improperly represented by the Department of Justice, the United

States was required to file a motion for permissive intervention, and Acosta failed

to receive proper notice of the motions to dismiss.

AFFIRMED.

3 19-55812