                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 18 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


SIMON F. RANTEESI,                               No. 13-16966

               Plaintiff - Appellant,            D.C. No. 2:13-cv-01335-MCE-
                                                 CKD
  v.

MARK CONSTANCE, Dr.; et al.,                     MEMORANDUM*

               Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Morrison C. England, Jr., Chief Judge, Presiding

                            Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Simon F. Ranteesi, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his Federal Tort Claims Act (“FTCA”) action

alleging federal and state law claims arising out of his use of the drug Paxil. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal of an

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action as barred by the applicable statute of limitations. Lukovsky v. City & County

of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We may affirm on any

ground supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th

Cir. 2008), and we affirm.

      Dismissal of Ranteesi’s claims against the United States was proper because

Ranteesi failed to meet the FTCA’s claims presentation requirements, and thus the

district court lacked subject matter jurisdiction. See Blair v. IRS, 304 F.3d 861,

864-65 (9th Cir. 2002) (a district court has no jurisdiction over an FTCA action

unless the plaintiff first meets the claims presentation requirement; a claim is not

deemed presented unless the plaintiff files “a sum certain damages claim”).

      The district court properly dismissed Ranteesi’s claims against Raley’s

because, even with the benefit of the discovery rule and statutory tolling due to

incarceration, Ranteesi failed to file his action within the applicable statutes of

limitations. See Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for

personal injury or wrongful death actions); § 338 (three-year statute of limitations

for property damage actions); § 340.5 (three-year statute of limitations for

malpractice actions); § 352.1(a) (statutory tolling due to incarceration not to exceed

two years); Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005) (the

discovery rule “postpones accrual of a cause of action until the plaintiff discovers,


                                            2                                    13-16966
or has reason to discover, the cause of action,” which occurs when “the plaintiff[]

ha[s] reason to at least suspect that a type of wrongdoing has injured [him]”).

      Contrary to Ranteesi’s contentions, Ranteesi is not entitled to equitable

estoppel or medical malpractice statutory tolling. See Lukovsky, 535 F.3d at 1051-

52 (setting forth elements of equitable estoppel under California law and noting

that “[t]he plaintiff must point to some fraudulent concealment, some active

conduct by the defendant above and beyond the wrongdoing upon which the

plaintiff’s claim is filed, to prevent the plaintiff from suing in time” (citation and

internal quotation marks omitted)); Barber v. Superior Court, 285 Cal. Rptr. 668,

672-73 (Ct. App. 1991) (where the plaintiff is on notice of a potential malpractice

claim and the defendant makes no effort to conceal pertinent facts, the plaintiff is

not entitled to California Code of Civil Procedure section 340.5’s fraudulent

concealment tolling provision).

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      Ranteesi’s request for judicial notice, filed on October 1, 2014, is denied as

unnecessary.

      AFFIRMED.




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