NOT FOR PUBLICATION FILED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