FILED
NOT FOR PUBLICATION SEP 19 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE LOUIE MENDOZA, No. 15-16351
Plaintiff-Appellant, D.C. No. 4:12-cv-00892-DCB-
PSOT
v.
UNITED STATES OF AMERICA; MEMORANDUM*
EDUARDO M. FERRIOL, Clinical
Director,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Joe Louie Mendoza, a former federal prisoner, appeals pro se from the
district court’s judgment dismissing his action under the Federal Tort Claims Act
(“FTCA”) and Bivens v. Six Unknown Named Agents of Federal Bureau of
*
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).
Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291.
We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213
F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Mendoza’s FTCA claim for lack of
subject matter jurisdiction because Mendoza failed to allege administrative
exhaustion under the FTCA. See Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.
1980) (“The timely filing of an administrative claim is a jurisdictional prerequisite
to the bringing of a suit under the FTCA, and, as such, should be affirmatively
alleged in the complaint.” (internal citation omitted)). We reject Mendoza’s
contention that exhaustion under the Prison Litigation Reform Act satisfies the
requirement to exhaust under the FTCA. Compare 28 C.F.R. §§ 542.13-15
(Bureau of Prisons administrative grievance procedures) with 28 C.F.R. §§ 543.30-
32 (administrative exhaustion procedures for the FTCA within the Bureau of
Prisons).
The district court properly dismissed Mendoza’s Bivens claims because
Mendoza failed to allege facts sufficient to state any plausible claims. See Hebbe
v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are
liberally construed, a plaintiff must still present factual allegations sufficient to
state a plausible claim for relief).
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The district court did not abuse its discretion by dismissing Mendoza’s
second amended complaint without leave to amend after concluding that further
amendment would be futile. See Chodos v. West Publ’g Co., 292 F.3d 992, 1003
(9th Cir. 2002) (“[W]hen a district court has already granted a plaintiff leave to
amend, its discretion in deciding subsequent motions to amend is particularly
broad.” (citation and internal quotation marks omitted)); Chappel v. Lab. Corp. of
Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that a district court acts within its discretion to deny leave to amend
when amendment would be futile).
The district court did not abuse its discretion by denying Mendoza’s motion
for reconsideration because Mendoza did not establish any basis for
reconsideration under either Federal Rule of Civil Procedure 59(e) or 60(b). See
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (setting forth standard of review and grounds warranting reconsideration
under Rules 59(e) and 60(b)).
AFFIRMED.
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