William Kocol v. United States

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 2 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM G. KOCOL; TIMOTHY A. No. 14-56149

GAJEWSKI,

D.C. No. 2:13-cv-03511-ABC-

Plaintiffs-Appellants, PJW

v.

MEMORANDUM*

THE UNITED STATES OF AMERICA;

FRANK BURNETT, CBP Officer, in his

individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Submitted October 25, 2016**

Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.

William G. Kocol and Timothy A. Gajewski appeal pro se from the district

court’s judgment dismissing their action brought under Bivens v. Six Unknown

*

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).

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the

Federal Tort Claims Act (“FTCA”). We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010) (subject

matter jurisdiction); Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998)

(qualified immunity); Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 875

(9th Cir. 1992) (substitution of the United States as a defendant). We affirm.

The district court properly dismissed the first cause of action on the basis of

qualified immunity because plaintiffs failed to allege that defendant Burnett

violated a constitutional right that was clearly established at the time of the conduct

in question. See Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (an official

violates clearly established law only if, at the time of the challenged conduct, the

right’s contours were sufficiently clear that every reasonable official would have

understood that he was violating it); see also Grossman v. City of Portland, 33

F.3d 1200, 1209 (9th Cir. 1994) (“[A]n officer who acts in reliance on a duly-

enacted statute or ordinance is ordinarily entitled to qualified immunity.”).

The district court properly ordered substitution of the United States as the

defendant in the second through fifth causes of action because those causes of

action alleged California common law torts and did not allege constitutional

2 14-56149

violations. See 28 U.S.C. § 2679(b) (FTCA provides exclusive remedy against the

United States for injury resulting from wrongful act of a government employee

acting within the scope of his office or employment); Lance v. United States, 70

F.3d 1093, 1095 (9th Cir. 1995) (“The United States is the only proper defendant

in an FTCA action.”).

The district court properly dismissed the second through fifth causes of

action for lack of subject matter jurisdiction because plaintiffs failed to exhaust

their administrative remedies. See Cadwalder v. United States, 45 F.3d 297, 300

(9th Cir. 1995) (presenting an administrative claim is a jurisdictional prerequisite

to filing an action under the FTCA).

The district court did not abuse its discretion in denying plaintiffs’ motion

for default judgment because defendants filed a motion to dismiss and a motion for

reconsideration, sufficiently indicating their intent to defend this action. See Eitel

v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard of

review and factors district courts should consider before entering a default

judgment); see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1255 (9th

Cir. 2010) (describing district courts’ wide discretion in case management and

obligation “to secure the just, speedy, and inexpensive determination of every

3 14-56149

action” (citation and internal quotation marks omitted)).

AFFIRMED.

4 14-56149