NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENDAN KUKLOK, 

Plaintiff-Appellant, 

 v. 

U.S. DEPARTMENT OF VETERANS 

AFFAIRS, 

Defendant-Appellee.

No. 21-15105 

D.C. No. 4:19-cv-02958-DMR 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Donna M. Ryu, Magistrate Judge, Presiding**

Submitted January 19, 2022***

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Brendan Kuklok appeals pro se from the district court’s judgment dismissing 

his action alleging claims under the Federal Tort Claims Act (“FTCA”), Privacy 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate judge. See 28 

U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JAN 26 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-15105 

Act (“PA”), and state law. We have jurisdiction under 28 U.S.C. § 1291. We 

review de novo. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1005 (9th Cir. 

2011) (dismissal on the basis of the statute of limitations); Brady v. United States, 

211 F.3d 499, 502 (9th Cir. 2000) (dismissal on the basis of lack of jurisdiction due 

to failure to exhaust). We affirm.

The district court properly dismissed Kuklok’s claims alleging wrongful 

disclosure of his medical records because Kuklok failed to file his action within the 

applicable statutes of limitations and failed to allege facts sufficient to show that he 

was entitled to equitable tolling. See 5 U.S.C. § 552a(g)(5) (two-year statute of 

limitations under the PA); 28 U.S.C. § 2401(b) (two-year statute of limitations 

under the FTCA); Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (en banc) 

(explaining elements necessary for equitable tolling); Johnson, 653 F.3d at 1010 

(equitable tolling based on mental incompetence requires a plaintiff to show 

diligence in pursuing claims and to explain how the impairment made it impossible 

to meet a filing deadline).

To the extent Kuklok intended to allege a claim for breach of fiduciary duty 

based on allegations other than defendant disclosing Kuklok’s medical records, the 

district court properly dismissed such a claim without prejudice for lack of subject 

matter jurisdiction because Kuklok failed to exhaust his administrative remedies. 

See 28 U.S.C. § 2675(a) (setting forth FTCA’s administrative exhaustion 
3 21-15105 

requirement); Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982) (§ 2675(a) 

requires “notice of the manner and general circumstances of injury and the harm 

suffered”).

The district court did not abuse its discretion in denying Kuklok leave to file 

a fourth amended complaint because amendment would have been futile. See 

Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth standard of 

review and factors for determining whether to grant leave to amend); Metzler Inv. 

GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008) (“[T]he 

district court’s discretion to deny leave to amend is particularly broad where 

plaintiff has previously amended the complaint.” (citation and internal quotation 

marks omitted)).

The district court did not abuse its discretion in denying Kuklok’s motion for 

reconsideration because Kuklok failed to demonstrate any basis for relief. See Sch. 

Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th 

Cir. 1993) (setting forth standard of review and grounds for reconsideration).

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).

AFFIRMED.