                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 27 2010

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




                            FOR THE NINTH CIRCUIT



CHADERICK A. INGRAM,                             No. 09-17527

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01712-KJM

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY and VAN NGUYEN,

              Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Kimberly J. Mueller, Magistrate Judge, Presiding **

                           Submitted October 19, 2010 ***

Before:       O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Chaderick A. Ingram appeals pro se from the district court’s judgment

dismissing his action against the Commissioner of Social Security and a Social

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).

       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Security Administration employee alleging improper supplemental security income

withholding and improper assignment of a representative payee. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo dismissals for lack of

subject matter jurisdiction and for failure to state a claim. Kildare v. Saenz, 325

F.3d 1078, 1082, 1085 (9th Cir. 2003). We affirm.

      The district court properly dismissed Ingram’s constitutional claims because

the United States has not expressly waived its sovereign immunity. See Gilbert v.

DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Moreover, Ingram cannot pursue

a Bivens action related to a social security benefits determination. See Schweiker v.

Chillicky, 487 U.S. 412, 414 (1988) (damages unavailable in action challenging

Social Security determination); Butler v. Apfel, 144 F.3d 622, 624 (9th Cir. 1998)

(per curiam).

      The district court properly dismissed the claims arising under the Social

Security Act for lack of subject matter jurisdiction because Ingram failed to

exhaust his administrative remedies before seeking judicial review. See 42 U.S.C.

§ 405(g) (judicial review only available after “any final decision of the

Commissioner of Social Security made after a hearing”); see also Bass v. Soc. Sec.

Admin., 872 F.2d 832, 833 (9th Cir. 1989) (per curiam) (a claimant’s failure to




                                           2                                    09-17527
exhaust administrative remedies under § 405(g) deprives a district court of

jurisdiction).

       The district court properly dismissed Ingram’s state-law tort claims because

Ingram failed to sue the proper party. See Allen v. Veterans Admin., 749 F.2d

1386, 1388 (9th Cir. 1984) (“[T]he United States is the sole party which may be

sued for personal injuries arising out of the negligence of its employees.”). Even if

Ingram had properly asserted these claims against the United States, the district

court would have no jurisdiction to consider them because Ingram failed to exhaust

administrative remedies under the Federal Tort Claims Act. See Brady v. United

States, 211 F.3d 499, 502 (9th Cir. 2000).

       We construe the dismissal for failure to exhaust administrative remedies as

without prejudice. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 (9th

Cir. 2007) (concluding that dismissal without prejudice is proper where plaintiff

failed to exhaust administrative remedies).

       Ingram’s remaining contentions are unpersuasive.

       AFFIRMED.




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