ROMULO PORTILLO V. USA, No. 18-15300 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION OCT 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ROMULO ANTONIO PORTILLO, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 18-15300 D.C. No. 2:17-cv-00394-JADCWH v. UNITED STATES OF AMERICA, MEMORANDUM* Defendant-Appellee. Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding Submitted October 22, 2018** Before: SILVERMAN, GRABER, and GOULD, Circuit Judges. Romulo Antonio Portillo, a former federal prisoner, appeals pro se from the district court’s judgment dismissing for lack of subject matter jurisdiction his Federal Tort Claims Act (“FTCA”) action arising from an allegedly negligent miscalculation of Portillo’s sentence. We have jurisdiction under 28 U.S.C. * 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). § 1291. We review de novo. Snow-Erlin v. United States, 470 F.3d 804, 807 (9th Cir. 2006). We affirm. The district court properly dismissed Portillo’s action for lack of subject matter jurisdiction because the FTCA bars claims against the United States arising out of false imprisonment. See 28 U.S.C. § 2680(h) (FTCA waiver does not apply to any claim arising out false imprisonment); Snow-Erlin, 470 F.3d at 808-09 (“If the gravamen of [p]laintiff’s complaint is a claim for an excluded tort under § 2680(h), then the claim is barred. . . . Plaintiff cannot sidestep the FTCA’s exclusion of false imprisonment claims by suing for the damage of false imprisonment under the label of negligence.”). Because we conclude the district court lacked jurisdiction, we do not consider Portillo’s contentions regarding the merits of his claims. AFFIRMED. 2 18-15300

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