John Castle v. Kevin Speese

440 F. App'x 544

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2011
• Docket: 09-16379
• Status: Unpublished

Opinion

MEMORANDUM **

John David Castle appeals pro se from the district court’s judgment dismissing his action alleging claims under the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Brady v. United States, 211 F.3d 499, 502 (9th Cir.2000); Fink v. Shedler, 192 F.3d 911, 913-14 (9th Cir.1999). We affirm.

The district court properly dismissed Castle’s Bivens claim against defendant Speese for failure to state a claim because Castle filed this action after the applicable two-year statute of limitations expired. See Nev.Rev.Stat. § 11.190(4)(e); Van Strum v. Lawn, 940 F.2d 406, 408-10 (9th Cir.1991) (personal injury statute of limitations under state law applies to Bivens claims). Castle failed to allege facts to establish a basis for tolling of the limitations period. See Nev.Rev.Stat. § 11.250 (listing grounds for statutory tolling); Seino v. Employers Ins. Co. of Nevada, 121 Nev. 146, 111 P.3d 1107, 1112 (2005) (discussing equitable tolling); see also Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.2008) (tolling provisions under state law apply to Bivens claims).

The district court properly dismissed Castle’s FTCA claim for lack of subject matter jurisdiction because Castle failed to exhaust his administrative remedies before filing this action. See 28 U.S.C. § 2675(a); Brady, 211 F.3d at 502. Castle’s remaining contentions, including those concerning the Alien Tort Statute, are unpersuasive.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.