Stone Fan v. United States

516 F. App'x 636

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2013
• Docket: 12-35160
• Status: Unpublished

Opinion

MEMORANDUM **

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 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 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.