FILED
NOT FOR PUBLICATION JUN 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN DAVID CASTLE, No. 09-16379
Plaintiff - Appellant, D.C. No. 2:08-cv-01325-JCM-
LRL
v.
KEVIN A. SPEESE; ATTORNEY MEMORANDUM *
GENERAL OF THE UNITED STATES,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
John David Castle appeals pro se from the district court’s judgment
dismissing his action alleging claims under the Federal Tort Claims Act (“FTCA”)
and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
*
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). Accordingly, appellant’s
request for oral argument is denied.
U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000); Fink v. Shedler, 192
F.3d 911, 913-14 (9th Cir. 1999). We affirm.
The district court properly dismissed Castle’s Bivens claim against defendant
Speese for failure to state a claim because Castle filed this action after the
applicable two-year statute of limitations expired. See Nev. Rev. Stat.
§ 11.190(4)(e); Van Strum v. Lawn, 940 F.2d 406, 408-10 (9th Cir. 1991) (personal
injury statute of limitations under state law applies to Bivens claims). Castle failed
to allege facts to establish a basis for tolling of the limitations period. See Nev.
Rev. Stat. § 11.250 (listing grounds for statutory tolling); Seino v. Employers Ins.
Co. of Nevada, 111 P.3d 1107, 1112 (Nev. 2005) (discussing equitable tolling); see
also Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (tolling provisions
under state law apply to Bivens claims).
The district court properly dismissed Castle’s FTCA claim for lack of
subject matter jurisdiction because Castle failed to exhaust his administrative
remedies before filing this action. See 28 U.S.C. § 2675(a); Brady, 211 F.3d at
502.
2 09-16379
Castle’s remaining contentions, including those concerning the Alien Tort
Statute, are unpersuasive.
AFFIRMED.
3 09-16379