                                                                            FILED
                             NOT FOR PUBLICATION                            SEP 21 2016

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



                             FOR THE NINTH CIRCUIT


MAURICE SIMEON KING,                             No. 14-55647

               Plaintiff-Appellant,              D.C. No. 3:13-cv-02648-JAH-
                                                 WVG
HAZEL MARSHALL KING,

               Plaintiff,                        MEMORANDUM*

 v.

BANK OF AMERICA; et al.,

               Defendants-Appellees.


                     Appeal from the United States District Court
                        for the Southern District of California
                      John A. Houston, District Judge, Presiding

                            Submitted September 13, 2016**

Before:        HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

      Maurice Simeon King appeals pro se from the district court’s judgment

dismissing for lack of subject matter jurisdiction his 42 U.S.C. § 1983 action

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
alleging an unlawful taking in violation of the Fifth Amendment. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Crum v. Circus Circus

Enters., 231 F.3d 1129, 1130 (9th Cir. 2000). We affirm.

         The district court properly dismissed King’s action because King failed to

establish federal subject matter jurisdiction over his claim. See Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (party asserting

jurisdiction bears the burden of proving federal jurisdiction); Bingue v. Prunchak,

512 F.3d 1169, 1174 (9th Cir. 2008) (Fifth Amendment only applies to the federal

government); see also Bell v. Hood, 327 U.S. 678, 682-83 (1946) (explaining that

an action my be dismissed for lack of jurisdiction where the alleged federal claim

clearly appears to be “wholly insubstantial and frivolous”).

         The district court did not abuse its discretion in denying King’s motions for

appointment of counsel because King failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and exceptional circumstances requirement for

appointment of counsel).

         Because we affirm the district court’s dismissal for lack of subject matter

jurisdiction, we do not consider King’s contentions regarding the merits of his

claim.


                                             2                                   14-55647
      We do not have jurisdiction over the portion of the judgment as to Hazel

Marshall King because Hazel did not sign the notice of appeal. See Fed. R. App. P.

3(c)(2); Fed. R. App. P. 4(a); United States v. Sadler, 480 F.3d 932, 937 (9th Cir.

2007) (Rule 4(a) is both mandatory and jurisdictional); C.E. Pope Equity Trust v.

United States, 818 F.2d 696, 697 (9th Cir. 1987) (a non-attorney does not have

authority to appear as an attorney for others).

      We do not consider issues or arguments not specifically and distinctly raised

and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th

Cir. 2009).

      King’s request for judicial notice, filed on July 22, 2014, is denied.

      AFFIRMED.




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