Romulo Antonio Portillo v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMULO ANTONIO PORTILLO,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 18-15300
D.C. No. 2:17-cv-00394-JAD-
CWH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Romulo Antonio Portillo, a former federal prisoner, appeals pro se from the
district court’s judgment dismissing for lack of subject matter jurisdiction his
Federal Tort Claims Act (“FTCA”) action arising from an allegedly negligent
miscalculation of Portillo’s sentence. We have jurisdiction under 28 U.S.C.
* 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).
FILED
OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-15300
§ 1291. We review de novo. Snow-Erlin v. United States, 470 F.3d 804, 807 (9th
Cir. 2006). We affirm.
The district court properly dismissed Portillo’s action for lack of subject
matter jurisdiction because the FTCA bars claims against the United States arising
out of false imprisonment. See 28 U.S.C. § 2680(h) (FTCA waiver does not apply
to any claim arising out false imprisonment); Snow-Erlin, 470 F.3d at 808-09 (“If
the gravamen of [p]laintiff’s complaint is a claim for an excluded tort under
§ 2680(h), then the claim is barred. . . . Plaintiff cannot sidestep the FTCA’s
exclusion of false imprisonment claims by suing for the damage of false
imprisonment under the label of negligence.”).
Because we conclude the district court lacked jurisdiction, we do not
consider Portillo’s contentions regarding the merits of his claims.
AFFIRMED.

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