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United States Court of Appeals, Ninth Circuit.

David LOCKMILLER, Plaintiff-Appellant, v. UNITED STATES of America; Bryan's Market, Inc., Defendants-Appellees.

No. 19-16999

Decided: February 23, 2021

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. David Lockmiller, Pro Se


David Lockmiller appeals pro se from the district court's judgment dismissing his action alleging Federal Tort Claims Act (“FTCA”) and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm.

The district court properly dismissed Lockmiller's negligence claim against the United States because Lockmiller failed to allege facts sufficient to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged.”); Lam v. United States, 979 F.3d 665, 672 (9th Cir. 2020) (setting forth elements of a FTCA claim).

The district court properly dismissed Lockmiller's negligence claim against Bryan's Market, Inc. because Lockmiller failed to demonstrate diversity jurisdiction. See 28 U.S.C. § 1332(a); Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001) (requirements for diversity jurisdiction).

We reject as without merit Lockmiller's contention that the FTCA's limitations on attorney's fees violated his First Amendment rights.

All pending motions are denied.


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