NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORETTA TAYLOR; ATLANTICA

KAHAUNANI TANUVASA,

Plaintiffs

- Appellants,

v.

HIROMICHI KOBAYASHI, individually

and in his official capacity; et al.,

Defendants

- Appellees,

and

MIKAEL RIVERA, individually and in his

official capacity; et al.,

Defendants. No. 22

- 16017

D.C. No.

1:20

- cv

- 00224

- DKW

- KJM

ME MORANDUM *

Appeal from the United States District Court

for the District of Hawaii

Derrick Kahala Watson, Chief District Judge, Presiding

Submitted February 14, 2023 * *

Honolulu, Hawaii

Before: BEA, COLLINS, and LEE, Circuit Judges.

* 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

MAR 8 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

Appellants L oretta Taylor and Atlantica Kahaunani Tanu vasa allege d that

they were sexually assaulted by correctional officer Mikael Rivera while serving

sentences at the Federal Detention Center in Honolulu. While the United States

Department of Justice i nvestigated these allegations, Appellants sued Rivera for

damages and ultimately settled with him. Appellants also pursued (1) Biv e ns claims

against warden Hiromichi Kobayashi and correctional officer Edward Balacua for

failing to train and supervise Rive ra and for not adequately responding to

Appellants ’ complaints, and (2) a Federal Tort Claims Act (FTCA) claim against the

United States. They now appeal the district court’s dismissal with prejudice of both

claims. We have jurisdiction under 28 U.S.C. § 1291

, and we affirm.

1. The district court did not err in dismissing Appellants ’ Biv e ns claim s

.

The district court correctly dismissed Appellants’ claims as “not cognizable ”

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

U.S. 388 (1971)

, because the claims arose in a “ new context ” and “ special factors ”

counsel hesitation in extending Biv e ns to that context. See Ziglar v. Abbasi , 137 S.

Ct. 1843, 1859

– 60 (2017)

. There are “altern ative remedies for aggrieved parties in

[Appellants’] position that independently foreclose a Biv e ns action here

. ” Egbert v.

Boule , 142 S. Ct. 1793 , 1806 (2022) . This includ es the Bureau of Prisons’ formal

review process for inmate complaints

. 28 C.F.R. § 542.10(a)

. “ S o long as Congress

or the Executive has created a remedial process that it finds sufficient to secure an3

adequate level of deterrence, the courts cannot second

- guess that calibration by

superimposing a Bivens remedy.” Egbert , 142 S. Ct

. at 1807.

2. The district court did not err in dismissing Appellants’ FTCA claim s

.

T he district court correctly dismissed Appellants ’ FTCA claims for lack of subject

matter jurisdiction because Appellants failed to present a sum certain damages claim

in writing to an appropriate agency before filing their FTCA claim s

. See 28 U.S.C.

§§ 2401(b), 2675(a) ; Blair v. I.R.S. , 304 F.3d 861, 864 (9th Cir. 2002)

. This

exhaustion requirement “is jurisdictional and may not be waived.” D.L. by &

through Junio v. Vassilev , 858 F.3d 1242, 1244 (9th Cir. 2017). We review de novo

the district court ’ s dismissal for lack of subject matter jurisdiction. In re Dynamic

Random Access Memory Antitrust Litig. , 546 F.3d 981, 984 (9th Cir. 2008)

.

Appellants concede that they did not compl y with the FTCA’s exhaustion

requirement. Instead, they argue that th ey “attempted to exhaust administrative

remedies but were thwarted and threatened and retaliated against.” Even accepting

these allegations as true, Appellants have cited no case in which we (or any other

court) have overlooked the requirement that a n FTC A claim be filed with the

appropriate agency before filing suit in federal court

. A t most

, Appellants’

allegations might be read to suggest that, if they now complied with that exhaustion

requirement, they could be entitled to some measure of equitable to lling of the time

frame in which they were required to file their claim s with the Bureau of Prisons.4

See United States v. Kwai Fun Wong , 575 U.S. 402 (2015) (holding that the two

year statute of limitation s in 28 U.S.C. § 2401(b) may be equitably tolled). But

Appellants bear the burden of proving entitlement to equitable tolling, see Redlin v.

United States , 921 F.3d 1133, 1140 (9th Cir. 2019)

, and have presented no

allegations, proof

, or argument on this f

ront. The district court did not err.

3. The district court did not abuse its discretion by dismissing Appellants’

claims without leave to amend. Although “[t]he standard for granting leave to

amend is generous,” United States v. Corinthian Colls.

, 655 F.3d 984, 995 (9th Cir.

2011) , “leave to amend is not to be granted automatically,” Jackson v. Bank of

Hawaii

, 902 F.2d 1385, 1387 (9th Cir. 1990)

. “We review the denial of leave to

amend for an abuse of discretion, but we review the question of futil ity of

amendment de novo.” United States v. United Healthcare Ins. Co.

, 848 F.3d 1161,

1172 (9th Cir. 2016) (cleaned up). “ Under a futility analysis, dismissal without leave

to amend is improper unless it is clear, upon de novo review, that the complaint

could not be saved by any amendment.” Corinthian Colls

., 655 F.3d at 995 (cleaned

up).

Here, Appellants “ failed to set forth any facts ”

— before either the district court

or this c ourt

— which they “ could add to save [ their ] complaint. ” Janas v.

McCracken (

In re Silicon Graphics Inc. Secs. Litig. ), 183 F.3d 970, 991 (9th Cir.

1999)

, superseded by statute on other grounds

. S ee also Halkin v. VeriFone Inc.5

(VeriFone Secs. Litig.)

, 11 F.3d 865, 872 (9th Cir. 1993) (plaintiffs failed to “point

to facts whic h might be added to save their complaint”) ; Gardner v. Martino , 563

F.3d 981, 991 (9th Cir. 2009) ( plaintiffs failed to propose any “ new facts or legal

theories ” for an amended complaint). Instead, Appellants argue again that the

district court erred by not finding their previous pleadings “presented a colorable

claim.” Thus, the district court did not abuse its discretion when it dismissed

Appellants’ second amended complaint without leave to amend

.

AFFIRMED.