NOT FOR PUBLICATION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 

MEMORANDUM*

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 APPEALS
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Appellants Loretta Taylor and Atlantica Kahaunani Tanuvasa alleged 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 investigated these allegations, Appellants sued Rivera for 

damages and ultimately settled with him. Appellants also pursued (1) Bivens claims 

against warden Hiromichi Kobayashi and correctional officer Edward Balacua for 

failing to train and supervise Rivera 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’ Bivens claims.

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 Bivens to that context. See Ziglar v. Abbasi, 137 S. 

Ct. 1843, 1859–60 (2017). There are “alternative remedies for aggrieved parties in 

[Appellants’] position that independently foreclose a Bivens action here.” Egbert v. 

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

review process for inmate complaints. 28 C.F.R. § 542.10(a). “So long as Congress 

or the Executive has created a remedial process that it finds sufficient to secure an 
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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 claims. 

The 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 claims. 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 comply with the FTCA’s exhaustion 

requirement. Instead, they argue that they “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 an FTCA claim be filed with the 

appropriate agency before filing suit in federal court. At 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 tolling of the time 

frame in which they were required to file their claims with the Bureau of Prisons.
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See United States v. Kwai Fun Wong, 575 U.S. 402 (2015) (holding that the twoyear statute of limitations 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 front. 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 futility 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 court—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. See also Halkin v. VeriFone Inc.
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(VeriFone Secs. Litig.), 11 F.3d 865, 872 (9th Cir. 1993) (plaintiffs failed to “point 

to facts which 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.