                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 21 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


GHOLAMREZA MALEKPOUR,                            No. 12-35999

               Plaintiff - Appellant,            D.C. No. 2:11-cv-02143-MJP

  v.
                                                 MEMORANDUM*
U.S. ENVIRONMENTAL PROTECTION
AGENCY; NAPCA,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Marsha J. Pechman, Chief Judge, Presiding

                            Submitted October 14, 2014**

Before:        LEAVY, GOULD, and BERZON, Circuit Judges.

       Gholamreza Malekpour appeals pro se from the district court’s judgment in

his action alleging federal and state law claims in connection with his participation

in the Senior Environmental Employment program. We have jurisdiction under 28


          *
             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).
U.S.C. § 1291. We review de novo. Vasquez v. County of Los Angeles, 349 F.3d

634, 646 (9th Cir. 2004) (summary judgment); Arrington v. Wong, 237 F.3d 1066,

1069 (9th Cir. 2001) (a district court’s decision regarding a motion to dismiss

under Fed. R. Civ. P. 12(b)(1) or 12(b)(6)). We affirm.

      The district court properly concluded that it lacked subject matter

jurisdiction over Malekpour’s claim under the Federal Tort Claims Act (“FTCA”)

because Malekpour failed to exhaust his administrative remedies before filing this

action. See 28 U.S.C. § 2675(a) (requiring that a federal agency first deny an

administrative claim in writing or fail to make a final disposition of the claim

within six months after it is filed); Brady v. United States, 211 F.3d 499, 502 (9th

Cir. 2000) (the filing of an administrative claim before filing an action under the

FTCA is jurisdictional).

      The district court properly dismissed Malekpour’s Title VII claim because

Malekpour did not allege facts sufficient to show that defendants took action

against him on account of race or national origin or his involvement in protected

activities. See Vasquez, 349 F.3d at 640 n.5, 646 (setting forth elements of

discrimination and retaliation under Title VII).

      The district court properly granted summary judgment to defendant NAPCA

on Malekpour’s state law negligence claim because Malekpour failed to raise a


                                           2                                       12-35999
genuine dispute of material fact as to whether NAPCA, a non-profit organization

that neither employed Malekpour nor controlled his work, owed a duty of care to

him. See Kamla v. Space Needle Corp., 52 P.3d 472, 475-76 (Wash. 2002) (en

banc) (stating that negligence requires that the defendant owe a duty of care to the

plaintiff, and endorsing common law duty of care arising from a defendant’s

retention of some degree of control over the manner in which work is performed).

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

motion to appoint counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

2009) (setting forth the standard of review and discussing the “exceptional

circumstances” requirement for appointment of counsel).

      We reject Malekpour’s contentions concerning judicial bias, defendants’

alleged joint and several liability, and defendants’ alleged retaliation against

Malekpour on the basis of his whistleblowing.

      AFFIRMED.




                                           3                                       12-35999
