Bruce Probert v. Rose Kalamarides

FILED
NOT FOR PUBLICATION JUN 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRUCE R. PROBERT, pro se, No. 12-35251
Plaintiff - Appellant, D.C. No. 4:11-cv-00012-RRB
v.
MEMORANDUM *
ROSE KALAMARIDES; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief Judge, Presiding
Submitted June 10, 2013 **
Before: HAWKINS, McKEOWN, and BERZON, Circuit Judges.
Bruce R. Probert appeals pro se from the district court’s judgment
dismissing his action alleging that defendants improperly withheld his pension
benefits and breached their fiduciary duties. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a district court’s dismissal for failure to state a claim
*
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).
under Fed. R. Civ. P. 12(b)(6), Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.
1999), and we affirm.
The district court properly dismissed Probert’s claim, properly brought
under the Employee Retirement Income Security Act (“ERISA”), that defendants
improperly withheld his pension benefits, because it is undisputed that Probert
failed to exhaust his administrative remedies. See Vaught v. Scottsdale Healthcare
Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008) (“[W]e have consistently
held that before bringing suit under § 502, an ERISA plaintiff claiming a denial of
benefits must avail himself . . . of a plan’s own internal review procedures before
bringing suit in federal court.” (citation and internal quotation marks omitted)).
The district court properly dismissed Probert’s breach of fiduciary duty
claim because Probert is not entitled to pursue a fiduciary duty claim under ERISA
without representation of counsel. See Simon v. Hartford Life, Inc., 546 F.3d 661,
666 (9th Cir. 2008) (“[A]n ERISA action brought pursuant to §§ 1109(a) and
1132(a)(2) is brought in a representative capacity and thus requires plaintiff to be
represented by counsel.”).
To the extent that Probert claims that defendants violated his privacy in
violation of 5 U.S.C. § 552a, the district court properly dismissed this claim, as
§ 552a does not provide a cause of action against private parties. See Unt v.
2 12-35251
Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir. 1985) (“The private right of civil
action created by the [Privacy] Act is specifically limited to actions against
agencies of the United States Government. The civil remedy provisions of the
statute do not apply against private individuals . . . [or] . . . private entities . . . .”).
The district court properly dismissed Probert’s remaining state law claims
for lost wages and related damages as preempted by ERISA. See Providence
Health Plan v. McDowell, 385 F.3d 1168, 1171-72 (9th Cir. 2004) (ERISA
preempts state law or common law claims which have a “connection with or
reference to” an employee benefit plan).
We do not address Probert’s claim of judicial bias raised for the first time in
his reply brief. See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per
curiam).
AFFIRMED.
3 12-35251