Darden v. USA

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO ANTOINE DARDEN, No. 23-1775 D.C. No. 4:22-cv-00271-JGZ Plaintiff - Appellant, v. MEMORANDUM* UNITED STATES OF AMERICA, BARBARA VON BLANCKENSEE, named as Warden V. Von Blacnkensee - USP Tucson, M SEGAL, Assistant/Acting Warden - USP Tucson, SHANNON BASS, HSA - USP Tucson, HEIDI HAIGHT- BIEHLER, Dr. - USP Tucson, A ASH, Dr. - USP Tucson, DARRIN MCWHORTER, Captain - USP Tucson, K GARCIA, Trust Fund Supervisor - USP Tucson, UNKNOWN DIXON, Infectious Disease Expert - USP Tucson, UNKNOWN COLBERT, Warden - USP Tucson, UNKNOWN TUBB, Assistant Warden - USP Tucson, UNKNOWN REY, Captain - USP Tucson, J ALEXANDER, Assistant HSA- USP Tucson, UNKNOWN DYER, Assistant Warden - USP Tucson, Defendants-Appellees. Appeal from the United States District Court for the District of Arizona * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Jennifer G. Zipps, District Judge, Presiding Submitted September 17, 2025** Before: SILVERMAN, OWENS, and BRESS, Circuit Judges. Roberto Antoine Darden, a federal prisoner, appeals pro se from the district court’s judgment dismissing his Federal Tort Claims Act (“FTCA”) action alleging negligence in response to the COVID-19 pandemic. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter jurisdiction under the FTCA. Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). We affirm. The district court properly dismissed Darden’s action for lack of subject matter jurisdiction because the United States is immune from liability on Darden’s claims under the “discretionary function” exception to the FTCA. See 28 U.S.C. § 2680(a); United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (the discretionary function exception covers acts that are “discretionary in nature” and “based on considerations of public policy”). The district court did not abuse its discretion in denying Darden’s motion to alter or amend the judgment because Darden failed to demonstrate any basis for relief. See Sch. Dist. No. 1J, Multnomah County, Or., 5 F.3d 1255, 1262-63 (9th ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 23-1775 Cir. 1993) (setting forth standard of review and grounds for relief under Federal Rules of Civil Procedure 59). We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Darden’s motion (Docket Entry No. 36) for leave to amend his opening and reply briefs is granted to the extent that it seeks to correct typographical errors. The motion is otherwise denied. All other motions are denied. AFFIRMED. 3 23-1775