William White v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 25, 2019
• Docket: 19-35220
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM A. WHITE, No. 19-35220

Plaintiff-Appellant, D.C. No. 3:18-cv-02150-MC

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

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Federal prisoner William A. White appeals pro se from the district court’s

judgment dismissing his action alleging federal and state law claims, including

claims brought under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291.

* 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). We review de novo. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004) (dismissal

under the applicable statute of limitations); Resnick v. Hayes, 213 F.3d 443, 447

(9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.

The district court properly dismissed White’s action because, even if a

Bivens remedy is available for his constitutional claims, White’s claims are

untimely, and White failed to allege facts sufficient to establish tolling or equitable

estoppel. See Jones, 393 F.3d at 927 (court applies the statute of limitations for

personal injury actions and forum state’s law regarding tolling except to the extent

inconsistent with federal law); W. Ctr. for Journalism v. Cederquist, 235 F.3d

1153, 1156 (9th Cir. 2000) (Bivens claim accrues when the plaintiff knows or has

reason to know of the injury which is the basis of the action); see also Johnson v.

Henderson, 314 F.3d 409, 414 (9th Cir. 2002) (application of equitable estoppel

requires active conduct by a defendant to prevent plaintiff from suing in time,

above and beyond the alleged wrongdoing underlying the claim); Day v. Advanced

M & D Sales, Inc., 86 P.3d 678, 682 (Or. 2004) (en banc) (elements of equitable

estoppel under Oregon law).

The district court did not abuse its discretion by dismissing White’s

complaint without leave to amend because amendment would have been futile.

See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.

2011) (setting forth standard of review and explaining that dismissal without leave

2 19-35220 to amend is proper when amendment would be futile).

We do not consider documents not filed with the district court. See United

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

AFFIRMED.

3 19-35220