Metko v. Social Security Administration

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 22 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
MARIA METKO, No. 08-17285
Plaintiff - Appellant, D.C. No. 3:07-cv-00226-BES-
RAM
v.
SOCIAL SECURITY MEMORANDUM *
ADMINISTRATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Maria Metko appeals pro se from the district court’s judgment dismissing
her action for failure to exhaust administrative remedies under the Social Security
*
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).
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Act (“SSA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de
novo, Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003), and we affirm.
The district court properly concluded that it lacked subject matter
jurisdiction because Metko failed to exhaust her administrative remedies before
filing this action. See id. at 1082-86 (affirming dismissal for lack of subject matter
jurisdiction where plaintiffs failed to exhaust administrative remedies under the
SSA). We construe the dismissal as without prejudice. See O’Guinn v. Lovelock
Corr. Ctr., 502 F.3d 1056, 1063 (9th Cir. 2007) (concluding that dismissal without
prejudice is proper where plaintiff failed to exhaust administrative remedies).
Metko’s remaining contentions are unavailing.
AFFIRMED.
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