                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 30 2009

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




                            FOR THE NINTH CIRCUIT



 GARY OWEN KENDALL,                              No. 08-35560

              Plaintiff - Appellant,             D.C. No. 07-cv-00103-EJL-LMB

   v.
                                                 MEMORANDUM *
 DEPARTMENT OF VETERANS
 AFFAIRS; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                           Submitted December 15, 2009 **

        Before:     GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Gary Owen Kendall appeals pro se from the district court’s judgment

dismissing pursuant to the screening provisions of 28 U.S.C. 1915(e) his action



         *
             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).

GT/Research
against the Department of Veterans Affairs (“VA”) and VA officials alleging

improper denial of benefits and infliction of emotional distress. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order), and we affirm in part,

and vacate and remand in part, with instructions to the district court to enter

judgment of dismissal without prejudice.

       The district court properly dismissed Kendall’s claims concerning the

denials of benefits by the VA because the district court lacked subject matter

jurisdiction as to those claims. See 38 U.S.C. § 511(a); Tietjen v. U.S. Veterans

Admin., 884 F.2d 514, 515 (9th Cir. 1989) (order) (affirming dismissal for lack of

subject matter jurisdiction where the district court “properly examined the

substance of [the plaintiff’s] action to ascertain whether it challenge[d] a decision

. . . concerning a benefit provided by a law administered by the Veterans

Administration”) (internal quotation marks omitted); Rosen v. Walters, 719 F.2d

1422, 1424 (9th Cir. 1983) (“[W]e are aware of no cases which permit review,

collaterally or otherwise, of a VA decision to deny benefits.”).

       However, because the district court lacked subject matter jurisdiction,

Kendall’s claims concerning the denials of benefits should have been dismissed




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without prejudice. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th

Cir. 2004).

       The district court properly dismissed the medical malpractice claim without

prejudice for lack of subject matter jurisdiction because Kendall did not allege in

his complaint that he filed an administrative claim with the VA before filing suit.

See Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992) (“A tort claimant

may not commence proceedings in court against the United States without first

filing [a] claim with an appropriate federal agency. . . . We have repeatedly held

that this claim requirement . . . is jurisdictional in nature and may not be waived.”)

(citation and internal quotation marks omitted).

       Kendall’s remaining contentions are unpersuasive.

       We deny Kendall’s “motion for order summary judgment and motion for

order of remand to trial.”

       The parties shall bear their own costs on appeal.

       AFFIRMED in part, and VACATED and REMANDED in part, with

instructions to the district court to enter judgment of dismissal without

prejudice.




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