Simon Ranteesi v. Mark Constance , 588 F. App'x 686 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIMON F. RANTEESI, No. 13-16966
Plaintiff - Appellant, D.C. No. 2:13-cv-01335-MCE-
CKD
v.
MARK CONSTANCE, Dr.; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief Judge, Presiding
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Simon F. Ranteesi, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his Federal Tort Claims Act (“FTCA”) action
alleging federal and state law claims arising out of his use of the drug Paxil. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action as barred by the applicable statute of limitations. Lukovsky v. City & County
of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We may affirm on any
ground supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th
Cir. 2008), and we affirm.
Dismissal of Ranteesi’s claims against the United States was proper because
Ranteesi failed to meet the FTCA’s claims presentation requirements, and thus the
district court lacked subject matter jurisdiction. See Blair v. IRS, 304 F.3d 861,
864-65 (9th Cir. 2002) (a district court has no jurisdiction over an FTCA action
unless the plaintiff first meets the claims presentation requirement; a claim is not
deemed presented unless the plaintiff files “a sum certain damages claim”).
The district court properly dismissed Ranteesi’s claims against Raley’s
because, even with the benefit of the discovery rule and statutory tolling due to
incarceration, Ranteesi failed to file his action within the applicable statutes of
limitations. See Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for
personal injury or wrongful death actions); § 338 (three-year statute of limitations
for property damage actions); § 340.5 (three-year statute of limitations for
malpractice actions); § 352.1(a) (statutory tolling due to incarceration not to exceed
two years); Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005) (the
discovery rule “postpones accrual of a cause of action until the plaintiff discovers,
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or has reason to discover, the cause of action,” which occurs when “the plaintiff[]
ha[s] reason to at least suspect that a type of wrongdoing has injured [him]”).
Contrary to Ranteesi’s contentions, Ranteesi is not entitled to equitable
estoppel or medical malpractice statutory tolling. See Lukovsky, 535 F.3d at 1051-
52 (setting forth elements of equitable estoppel under California law and noting
that “[t]he plaintiff must point to some fraudulent concealment, some active
conduct by the defendant above and beyond the wrongdoing upon which the
plaintiff’s claim is filed, to prevent the plaintiff from suing in time” (citation and
internal quotation marks omitted)); Barber v. Superior Court, 285 Cal. Rptr. 668,
672-73 (Ct. App. 1991) (where the plaintiff is on notice of a potential malpractice
claim and the defendant makes no effort to conceal pertinent facts, the plaintiff is
not entitled to California Code of Civil Procedure section 340.5’s fraudulent
concealment tolling provision).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Ranteesi’s request for judicial notice, filed on October 1, 2014, is denied as
unnecessary.
AFFIRMED.
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