                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 26 2010

                                                                           MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



FRANCISCO JAVIER ESTRADA,                          No. 08-16154

               Plaintiff - Appellant,              D.C. No. 2:07-cv-00052-NVW-
                                                   LOA
   v.

JOE W. BOOKER, JR., Warden; et al.,                MEMORANDUM *

               Defendants - Appellees.



                     Appeal from the United States District Court
                              for the District of Arizona
                       Neil V. Wake, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Francisco Javier Estrada, a federal prisoner, appeals pro se from the district

court’s judgment in his action brought under Bivens v. Six Unknown Named Agents



          *
             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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of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims

Act (“FTCA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo the district court’s dismissal for failure to state a claim pursuant to 28 U.S.C.

§ 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and for failure to

exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and review for

clear error its factual determinations concerning exhaustion, id. We affirm in part,

vacate in part, and remand.

       The district court properly determined that Estrada failed to state a claim

under the FTCA because he alleged only violations of his federal constitutional

rights. See Pereira v. U.S. Postal Serv., 964 F.2d 873, 876-77 (9th Cir. 1992)

(explaining that constitutional torts are not cognizable under the FTCA).

       The district court concluded that, with regard to his Bivens claims, Estrada

failed to properly exhaust administrative remedies prior to filing his federal action.

It reasoned that Estrada had voluntarily withdrawn his administrative appeal.

However, Estrada stated in his verified complaint and sworn opposition that he

withdrew his appeal because a prison Health Services Administrator promised him

he would receive all the dental care he requested if he did so, and his subsequent

appeal was denied as a result of that withdrawal. The district court did not

consider Estrada’s reasons for withdrawing the appeal. Accordingly, we vacate


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and remand for further proceedings. See Brown v. Valoff, 422 F.3d 926, 935 (9th

Cir. 2005).

       The district court did not abuse its discretion by denying Estrada’s motions

for appointment of counsel because he failed to demonstrate exceptional

circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

       The district court properly denied Estrada’s motion for a temporary

restraining order because he did not certify his efforts to give notice of the motion

to defendants. See Fed. R. Civ. P. 65(b)(1)(B). The district court did not abuse its

discretion by denying the motion for a preliminary injunction because Estrada did

not demonstrate a likelihood of success on the merits or raise serious questions as

to the merits. See Harris v. Bd. of Supervisors, 366 F.3d 754, 759-60 (9th Cir.

2004) (setting forth abuse of discretion standard of review and requirements to

obtain a preliminary injunction).

       Appellees’ unopposed Motion to Strike Non-Record Exhibits Submitted

with Appellant’s Reply Brief is granted.

       Appellees shall bear the costs on appeal.

       AFFIRMED in part, VACATED in part, and REMANDED.




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