Stone Fan v. United States ( 2013 )

FILED
NOT FOR PUBLICATION APR 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STONE DONG FAN, No. 12-35160
Plaintiff - Appellant, D.C. No. 2:11-cv-00718-RSM
v.
MEMORANDUM *
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted April 16, 2013 **
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Stone Dong Fan appeals pro se from the district court’s judgement
dismissing for lack of subject matter jurisdiction his Federal Torts Claims Act
(“FTCA”) action arising from his 1983 criminal conviction in China. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
subject matter jurisdiction, Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir.
1995), and we affirm.
The district court lacked subject matter jurisdiction over Fan’s claims for
negligence and fraud because Fan failed to exhaust his administrative remedies as
required by the FTCA. See 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(a) (requiring
written notification of the incident accompanied by a claim for money damages in
a sum certain as a prerequisite for suit under the FTCA); see also Johnson v.
United States, 704 F.2d 1431, 1442 (9th Cir. 1983) (“Exhaustion of the claims
procedures established under the Act is a prerequisite to district court
jurisdiction.”).
The district court properly dismissed Fan’s due process claims related to his
1983 conviction on the ground that the claims are barred by the general six-year
statute of limitations applicable to claims against the United States. See 28 U.S.C.
§ 2401(a) (every civil action commenced against the United States shall be barred
unless the complaint is filed within six years after the right of action first accrues).
The district court did not abuse its discretion by denying Fan’s motions to
appoint counsel because Fan failed to demonstrate exceptional circumstances. See
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of
2 12-35160
review and requirement of “exceptional circumstances” for appointment of
counsel).
We decline to consider contentions raised for the first time on appeal,
including Fan’s claim that his due process rights continue to be violated as long as
the United States fails to provide the court in China with exculpatory evidence.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Fan’s motion for appointment of counsel, received on July 9, 2012, is
denied.
AFFIRMED.
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