William Kocol v. United States , 670 F. App'x 489 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM G. KOCOL; TIMOTHY A. No. 14-56149
GAJEWSKI,
D.C. No. 2:13-cv-03511-ABC-
Plaintiffs-Appellants, PJW
v.
MEMORANDUM*
THE UNITED STATES OF AMERICA;
FRANK BURNETT, CBP Officer, in his
individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
William G. Kocol and Timothy A. Gajewski appeal pro se from the district
court’s judgment dismissing their action brought under Bivens v. Six Unknown
*
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).
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the
Federal Tort Claims Act (“FTCA”). We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010) (subject
matter jurisdiction); Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998)
(qualified immunity); Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 875
(9th Cir. 1992) (substitution of the United States as a defendant). We affirm.
The district court properly dismissed the first cause of action on the basis of
qualified immunity because plaintiffs failed to allege that defendant Burnett
violated a constitutional right that was clearly established at the time of the conduct
in question. See Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (an official
violates clearly established law only if, at the time of the challenged conduct, the
right’s contours were sufficiently clear that every reasonable official would have
understood that he was violating it); see also Grossman v. City of Portland, 33
F.3d 1200, 1209 (9th Cir. 1994) (“[A]n officer who acts in reliance on a duly-
enacted statute or ordinance is ordinarily entitled to qualified immunity.”).
The district court properly ordered substitution of the United States as the
defendant in the second through fifth causes of action because those causes of
action alleged California common law torts and did not allege constitutional
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violations. See 28 U.S.C. § 2679(b) (FTCA provides exclusive remedy against the
United States for injury resulting from wrongful act of a government employee
acting within the scope of his office or employment); Lance v. United States, 70
F.3d 1093, 1095 (9th Cir. 1995) (“The United States is the only proper defendant
in an FTCA action.”).
The district court properly dismissed the second through fifth causes of
action for lack of subject matter jurisdiction because plaintiffs failed to exhaust
their administrative remedies. See Cadwalder v. United States, 45 F.3d 297, 300
(9th Cir. 1995) (presenting an administrative claim is a jurisdictional prerequisite
to filing an action under the FTCA).
The district court did not abuse its discretion in denying plaintiffs’ motion
for default judgment because defendants filed a motion to dismiss and a motion for
reconsideration, sufficiently indicating their intent to defend this action. See Eitel
v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard of
review and factors district courts should consider before entering a default
judgment); see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1255 (9th
Cir. 2010) (describing district courts’ wide discretion in case management and
obligation “to secure the just, speedy, and inexpensive determination of every
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action” (citation and internal quotation marks omitted)).
AFFIRMED.
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