Brendan Kuklok v. U.s. Department of Veterans Affairs

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDAN KUKLOK,
Plaintiff-Appellant,
v.
U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant-Appellee.
No. 21-15105
D.C. No. 4:19-cv-02958-DMR
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding**
Submitted January 19, 2022***
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Brendan Kuklok appeals pro se from the district court’s judgment dismissing
his action alleging claims under the Federal Tort Claims Act (“FTCA”), Privacy
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Act (“PA”), and state law. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir.
2011) (dismissal on the basis of the statute of limitations); Brady v. United States,
211 F.3d 499, 502 (9th Cir. 2000) (dismissal on the basis of lack of jurisdiction due
to failure to exhaust). We affirm.
The district court properly dismissed Kuklok’s claims alleging wrongful
disclosure of his medical records because Kuklok failed to file his action within the
applicable statutes of limitations and failed to allege facts sufficient to show that he
was entitled to equitable tolling. See 5 U.S.C. § 552a(g)(5) (two-year statute of
limitations under the PA); 28 U.S.C. § 2401(b) (two-year statute of limitations
under the FTCA); Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (en banc)
(explaining elements necessary for equitable tolling); Johnson, 653 F.3d at 1010
(equitable tolling based on mental incompetence requires a plaintiff to show
diligence in pursuing claims and to explain how the impairment made it impossible
to meet a filing deadline).
To the extent Kuklok intended to allege a claim for breach of fiduciary duty
based on allegations other than defendant disclosing Kuklok’s medical records, the
district court properly dismissed such a claim without prejudice for lack of subject
matter jurisdiction because Kuklok failed to exhaust his administrative remedies.
See 28 U.S.C. § 2675(a) (setting forth FTCA’s administrative exhaustion

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requirement); Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982) (§ 2675(a)
requires “notice of the manner and general circumstances of injury and the harm
suffered”).
The district court did not abuse its discretion in denying Kuklok leave to file
a fourth amended complaint because amendment would have been futile. See
Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth standard of
review and factors for determining whether to grant leave to amend); Metzler Inv.
GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (“[T]he
district court’s discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.” (citation and internal quotation
marks omitted)).
The district court did not abuse its discretion in denying Kuklok’s motion for
reconsideration because Kuklok failed to demonstrate any basis for relief. See Sch.
Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (setting forth standard of review and grounds for reconsideration).
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).
AFFIRMED.

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