David Lockmiller v. United States ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LOCKMILLER, No. 19-16999
Plaintiff-Appellant, D.C. No. 3:19-cv-04554-WHA
v.
MEMORANDUM*
UNITED STATES OF AMERICA;
BRYAN’S MARKET, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
David Lockmiller appeals pro se from the district court’s judgment
dismissing his action alleging Federal Tort Claims Act (“FTCA”) and state law
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. § 1915(e)(2)(B). Barren v. Harrington, 152 F.3d 1193,
*
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).
1194 (9th Cir. 1998) (order). We affirm.
The district court properly dismissed Lockmiller’s negligence claim against
the United States because Lockmiller failed to allege facts sufficient to state a
plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for misconduct
alleged.”); Lam v. United States, 979 F.3d 665, 672 (9th Cir. 2020) (setting forth
elements of a FTCA claim).
The district court properly dismissed Lockmiller’s negligence claim against
Bryan’s Market, Inc. because Lockmiller failed to demonstrate diversity
jurisdiction. See 28 U.S.C. § 1332(a); Kanter v. Warner-Lambert Co., 265 F.3d
853, 857-58 (9th Cir. 2001) (requirements for diversity jurisdiction).
We reject as without merit Lockmiller’s contention that the FTCA’s
limitations on attorney’s fees violated his First Amendment rights.
All pending motions are denied.
AFFIRMED.
2 19-16999