NOT FOR PUBLICATION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 APPEALS2 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) (dismissa l 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 statute s 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 e xplain 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, t he district court properl y 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 exhaustion3 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 discretio n 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 fo r 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
.