NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ADALBERTO ZALDIVAR, Sr., 

Plaintiff-Appellant, 

 v. 

SOUTHERN ARIZONA VETERANS 

AFFAIRS HEALTH CARE SYSTEM; et 

al., 

Defendants-Appellees.

No. 16-17237 

D.C. No. 4:14-cv-02219-CKJ 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Jose Adalberto Zaldivar, Sr., appeals pro se from the district court’s 

summary judgment and dismissal orders in his Freedom of Information Act 

(“FOIA”) and Privacy Act (“PA”) action arising out of his request for documents 

 

* 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

AUG 16 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-17237 

related to his medical records. We have jurisdiction under 28 U.S.C. § 1291. We 

review de novo. Lane v. Dep’t of Interior, 523 F.3d 1128, 1135, 1138 (9th Cir. 

2008) (FOIA and PA summary judgment); Serra v. Lappin, 600 F.3d 1191, 1195 

(9th Cir. 2010) (dismissal for failure to state a claim); Resnick v. Hayes, 213 F.3d 

443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We may affirm on 

any basis supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 

F.3d 1116, 1121 (9th Cir. 2008). We affirm.

The district court properly granted summary judgment on Zaldivar’s claims 

related to his July 14, 2009 FOIA request because Zaldivar failed to raise a genuine 

dispute of material fact as to whether he exhausted administrative remedies. See In 

re Steele, 799 F.2d 461, 465 (9th Cir. 1986) (“Exhaustion of a parties’ 

administrative remedies is required under the FOIA before that party can seek 

judicial review.”).

The district court properly granted summary judgment on Zaldivar’s claims 

related to his November 22, 2011 FOIA and PA requests because Zaldivar failed to 

raise a genuine dispute of material fact as to whether appellees had not conducted a 

reasonable search for responsive documents. See Hamdan v. U.S. Dep’t of Justice, 

797 F.3d 759, 770-71 (9th Cir. 2015) (setting forth requirements for demonstrating 

adequacy of search for documents under FOIA); Lane, 523 F.3d at 1139 (search 

for documents under PA). 
3 16-17237 

The district court properly dismissed as time-barred Zaldivar’s claims 

related to his April 11, 2008 FOIA request, and his December 31, 2008, July 14, 

2009, and October 6, 2010 PA requests. See 5 U.S.C. § 552a(g)(5) (two-year 

statute of limitations under the PA); Nesovic v. United States, 71 F.3d 776, 778 

(9th Cir. 1995) (where a statute is silent on the statute of limitations, the six-year 

catchall statute of limitations provision under 28 U.S.C. § 2401(a) for actions 

against the United States applies). Contrary to Zaldivar’s contention, the 

continuing violation does not save his claims from being time-barred. 

The district court properly dismissed Zaldivar’s claims brought under 42 

U.S.C. §§ 1981, 1982, 1985, and 1986 because Zaldivar failed to allege facts 

sufficient to show racial discrimination or conspiracy. See Hebbe v. Pliler, 627 

F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be liberally 

construed, a plaintiff must still present factual allegations sufficient to state a 

plausible claim for relief).

Dismissal was proper as to Zaldivar’s claim brought under Health Insurance 

Portability and Accountability Act (“HIPAA”) regulations because there is no

private right of action under HIPAA. See Webb v. Smart Document Solutions, 

LLC, 499 F.3d 1078, 1081 (9th Cir. 2007) (“HIPAA itself provides no private right 

of action.”).

The district court properly denied Zaldivar’s motion for appointment of 
4 16-17237 

counsel because Zaldivar did not demonstrate exceptional circumstances. See 

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of 

review and requirement of “exceptional circumstances” for appointment of 

counsel).

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).

Zaldivar’s requests for injunctive relief, set forth in the reply brief, are 

denied.

AFFIRMED.