Jose Zaldivar, Sr. v. Usaf

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2018
• Docket: 17-15582
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ADALBERTO ZALDIVAR, Sr., No. 17-15582

Plaintiff-Appellant, D.C. No. 4:14-cv-02234-CKJ

v. MEMORANDUM* UNITED STATES DEPARTMENT OF THE AIR FORCE; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Jose Adalberto Zaldivar, Sr., an Arizona state prisoner, appeals pro se from

the district court’s summary judgment and dismissal orders in his Freedom of

Information Act (“FOIA”) and Privacy Act (“PA”) action. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Animal Legal Def. Fund v. U.S.

* 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). Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en banc) (summary

judgment in FOIA cases); Louis v. Dep’t of Labor, 419 F.3d 970, 973 (9th Cir.

2005) (summary judgment in PA cases). We may affirm on any basis supported by

the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th

Cir. 2008). We affirm.

The district court properly granted summary judgment on Zaldivar’s claims

related to his FOIA requests to the United States Department of the Air Force, Air

Force Safety Center, Air Force Military Justice Division, National Personnel

Records Center, and Department of Veterans Affairs because defendants submitted

declarations that were reasonably detailed, and showed that defendants conducted

an adequate search for documents. See Hamdan v. U.S. Dep’t of Justice, 797 F.3d

759, 770-71 (9th Cir. 2015) (setting forth requirements for demonstrating adequacy

of search for documents under FOIA).

Summary judgment was proper on Zaldivar’s claims related to his PA

requests to the United States Department of the Air Force, Air Force Safety Center,

Air Force Military Justice Division, National Personnel Records Center, and

Department of Veterans Affairs because defendants submitted declarations that

were reasonably detailed, and showed that defendants conducted an adequate

search for documents. See Lane v. Dep’t of Interior, 523 F.3d 1128, 1139 (9th Cir.

2008) (setting forth requirements for demonstrating adequacy of search for

2 17-15582 documents under PA), overruled in part on other grounds by Animal Legal Def.

Fund, 836 F.3d at 990.

The district court properly dismissed as time-barred Zaldivar’s claims

related to his PA request to the Southern Arizona Veterans Affairs Health Care

System. See 5 U.S.C. § 552a (g)(5) (two-year statute of limitations under the PA);

Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010) (standard of review).

Contrary to Zaldivar’s contention, the continuing violation doctrine does not save

his claims from being time-barred.

The district court properly dismissed Zaldivar’s claims related to his FOIA

request to the FBI because Zaldivar failed to exhaust administrative remedies. See

In re Steele, 799 F.2d 461, 465 (9th Cir. 1986) (“Exhaustion of a parties’

administrative remedies is required under the FOIA before that party can seek

judicial review.”). Zaldivar fails to identify any error in the district court’s

dismissal of his claims related to his PA request to the FBI.

The district court properly dismissed Zaldivar’s claims brought under 42

U.S.C. §§ 1981, 1982, 1983, 1985, and 1986, as well as any claims under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

because Zaldivar failed to allege facts sufficient to state any plausible claim for

relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se

pleadings are to be liberally construed, a plaintiff must still present factual

3 17-15582 allegations sufficient to state a plausible claim for relief); Resnick v. Hayes, 213

F.3d 443, 447 (9th Cir. 2000) (standard of review).

The district court properly denied Zaldivar’s motion for appointment of

counsel because Zaldivar did not demonstrate exceptional circumstances. See

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of

review and requirement of “exceptional circumstances” for appointment of

counsel).

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).

Zaldivar’s motion for an extension of time to file his reply brief (Docket No.

27) is denied as unnecessary because Zaldivar’s reply brief was timely filed.

AFFIRMED.

4 17-15582