NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID LOCKMILLER, No. 19-16999

Plaintiff-Appellant, D.C. No. 3:19-cv-04554-WHA

v.

MEMORANDUM*

UNITED STATES OF AMERICA;

BRYAN’S MARKET, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

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,

* 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). 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 (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.

AFFIRMED.

2 19-16999