Joaquin Acosta v. United States ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOAQUIN ANDRES ACOSTA, No. 19-55812
Plaintiff-Appellant, D.C. No. 5:18-cv-00369-CJC-ADS
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted November 9, 2020**
Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.
Joaquin Andres Acosta appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341
(9th Cir. 2010) (dismissal under Federal Rule of Civil Procedure 12(b)(6)); Serra
*
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).
v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010) (dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)). We affirm.
The district court properly dismissed Acosta’s Federal Tort Claims Act
(“FTCA”) claims because Acosta failed to exhaust his administrative remedies
against the United States, the only proper defendant for an FTCA claim. See
McNeil v. United States, 508 U.S. 106, 113 (1993) (FTCA bars a claimant from
bringing suit in federal court unless the claimant has first exhausted administrative
remedies); Ward v. Gordon, 999 F.2d 1399, 1401 (9th Cir. 1993) (remedy against
United States under FTCA for actions of federal employee within the scope of
employment is exclusive of any other civil action).
The district court properly dismissed Acosta’s 42 U.S.C. § 1983 claims
because defendants are not state actors. See West v. Atkins, 487 U.S. 42, 48 (1988)
(“To state a claim under § 1983, a plaintiff must . . . show that the alleged
deprivation was committed by a person acting under color of state law.”); Morse v.
N. Coast Opportunities, 118 F.3d 1338, 1343 (9th Cir. 1997) (Ҥ 1983 precludes
liability in federal government actors”).
The district court properly dismissed Acosta’s claim under California Penal
Code § 118.1 because Acosta failed to allege facts sufficient to state a plausible
claim. See Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir. 1999)
(California Penal Code “sections do not create enforceable individual rights”).
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The district court did not abuse its discretion by dismissing Acosta’s claims
against defendants Decker, Dier, Magistrate Judge Pym, and the named individual
defendants’ domestic partners, spouses, or betrotheds because Acosta failed to
effect proper service of the summons and complaint on these defendants after
being given notice and an opportunity to do so. See Fed. R. Civ. P. 4(m) (outlining
requirements for proper service, and explaining that a district court may dismiss for
failure to serve after providing notice and absent a showing of good cause for
failure to serve); Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511-12 (9th
Cir. 2001) (setting forth standard of review and discussing Rule 4(m)’s “good
cause” standard).
The district court did not abuse its discretion by denying Acosta’s motions
for entry of default because defendants did not fail to plead or otherwise defend.
See Fed. R. Civ. P. 55(a) (providing for entry of default when a defendant “has
failed to plead or otherwise defend”); Speiser, Krause & Madole P.C. v. Ortiz,
271 F.3d 884, 886 (9th Cir. 2001) (setting forth standard of review).
We reject as without merit Acosta’s contentions that the individual
defendants were improperly represented by the Department of Justice, the United
States was required to file a motion for permissive intervention, and Acosta failed
to receive proper notice of the motions to dismiss.
AFFIRMED.
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