NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ADALBERTO ZALDIVAR, Sr., No. 17-15582
Plaintiff-Appellant, D.C. No. 4:14-cv-02234-CKJ
v.
MEMORANDUM*
UNITED STATES DEPARTMENT OF
THE AIR FORCE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Jose Adalberto Zaldivar, Sr., an Arizona state prisoner, appeals pro se from
the district court’s summary judgment and dismissal orders in his Freedom of
Information Act (“FOIA”) and Privacy Act (“PA”) action. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Animal Legal Def. Fund v. U.S.
*
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).
Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en banc) (summary
judgment in FOIA cases); Louis v. Dep’t of Labor, 419 F.3d 970, 973 (9th Cir.
2005) (summary judgment in PA cases). We may affirm on any basis supported by
the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th
Cir. 2008). We affirm.
The district court properly granted summary judgment on Zaldivar’s claims
related to his FOIA requests to the United States Department of the Air Force, Air
Force Safety Center, Air Force Military Justice Division, National Personnel
Records Center, and Department of Veterans Affairs because defendants submitted
declarations that were reasonably detailed, and showed that defendants conducted
an adequate search for documents. See Hamdan v. U.S. Dep’t of Justice, 797 F.3d
759, 770-71 (9th Cir. 2015) (setting forth requirements for demonstrating adequacy
of search for documents under FOIA).
Summary judgment was proper on Zaldivar’s claims related to his PA
requests to the United States Department of the Air Force, Air Force Safety Center,
Air Force Military Justice Division, National Personnel Records Center, and
Department of Veterans Affairs because defendants submitted declarations that
were reasonably detailed, and showed that defendants conducted an adequate
search for documents. See Lane v. Dep’t of Interior, 523 F.3d 1128, 1139 (9th Cir.
2008) (setting forth requirements for demonstrating adequacy of search for
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documents under PA), overruled in part on other grounds by Animal Legal Def.
Fund, 836 F.3d at 990.
The district court properly dismissed as time-barred Zaldivar’s claims
related to his PA request to the Southern Arizona Veterans Affairs Health Care
System. See 5 U.S.C. § 552a (g)(5) (two-year statute of limitations under the PA);
Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010) (standard of review).
Contrary to Zaldivar’s contention, the continuing violation doctrine does not save
his claims from being time-barred.
The district court properly dismissed Zaldivar’s claims related to his FOIA
request to the FBI because Zaldivar failed to exhaust administrative remedies. See
In re Steele, 799 F.2d 461, 465 (9th Cir. 1986) (“Exhaustion of a parties’
administrative remedies is required under the FOIA before that party can seek
judicial review.”). Zaldivar fails to identify any error in the district court’s
dismissal of his claims related to his PA request to the FBI.
The district court properly dismissed Zaldivar’s claims brought under 42
U.S.C. §§ 1981, 1982, 1983, 1985, and 1986, as well as any claims under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
because Zaldivar failed to allege facts sufficient to state any plausible claim for
relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se
pleadings are to be liberally construed, a plaintiff must still present factual
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allegations sufficient to state a plausible claim for relief); Resnick v. Hayes, 213
F.3d 443, 447 (9th Cir. 2000) (standard of review).
The district court properly denied Zaldivar’s motion for appointment of
counsel because Zaldivar did not demonstrate exceptional circumstances. See
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of
review and requirement of “exceptional circumstances” for appointment of
counsel).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Zaldivar’s motion for an extension of time to file his reply brief (Docket No.
27) is denied as unnecessary because Zaldivar’s reply brief was timely filed.
AFFIRMED.
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