                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 MICHAEL WAYNE EGGERS,                           No. 08-56257

               Plaintiff - Appellant,            D.C. No. 2:08-cv-00986-JSL-AGR

   v.
                                                 MEMORANDUM *
 UNITED STATES; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Central District of California
                      J. Spencer Letts, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Michael Wayne Eggers, an Alabama state prisoner, appeals pro se from the

district court’s judgment dismissing his action alleging violations under 42 U.S.C.

§ 1983, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

          *
             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).

tk/Research
U.S. 388 (1971), and the Federal Tort Claims Act. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a district court’s dismissal under 28 U.S.C.

§ 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

        The district court properly dismissed Eggers’s section 1983 and Bivens

claims as time-barred. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (explaining

that the statute of limitations begins to run when the plaintiff has a complete and

present cause of action); Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th

Cir. 2007) (applying California’s former one-year personal injury statute of

limitations to section 1983 claims that were more than one-year old as of January

1, 2003); Van Strum v. Lawn, 940 F.2d 406, 409-10 (9th Cir. 1991) (holding that

the statutes of limitation for Bivens and section 1983 actions are the same); see also

Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (describing three conditions

required to equitably toll a statute of limitations under California law).

        The district court properly determined that it lacked jurisdiction over the tort

claims because Eggers did not allege that he filed an administrative claim within

two years after his claims accrued. See 28 U.S.C. § 2401(b) (providing that “a tort

claim against the United States shall be forever barred unless it is presented in

writing to the appropriate Federal agency within two years after such claim

accrues”); McGraw v. United States, 281 F.3d 997, 1001 (9th Cir. 2002) (stating


tk/Research                                 2                                     08-56257
that the two-year limitation in § 2401(b) is a “threshold jurisdictional

requirement”), amended on denial of reh’g, 298 F.3d 754 (9th Cir. 2002); see also

Marley v. United States, 567 F.3d 1030, 1037 (9th Cir. 2009) (explaining that the

timing requirement contained in § 2401(b) is subject neither to estoppel principles

nor to equitable considerations), cert. denied, 175 L. Ed. 2d 559 (2009).

         The district court did not abuse its discretion by denying Eggers leave to

amend his complaint because further amendment would be futile. See Chappel v.

Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000).

         The district court did not abuse its discretion by denying Eggers’s request

for appointment of counsel because the case did not present exceptional

circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.

2004).

         Eggers’s remaining contentions are unpersuasive.

         Eggers’s “motion for briefing schedule/case disposition information” is

denied as moot.

         AFFIRMED.




tk/Research                                 3                                    08-56257
