William White v. United States ( 2019 )

NOT FOR PUBLICATION FILED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.
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