DEROME McELROY v. AGENCY, Unknown

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEROME McELROY,
Plaintiff-Appellant,
v.
AGENCY, Unknown,
Defendant-Appellee.
No. 22-35072
D.C. No. 3:21-cv-05891-DGE
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
David G. Estudillo, District Judge, Presiding
Submitted February 14, 2023**
Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.
Derome McElroy appeals pro se from the district court’s judgment
dismissing his action for lack of subject matter jurisdiction. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
In his opening brief, McElroy fails to address the grounds for dismissal and
* 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).
FILED
FEB 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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has therefore waived his challenge to the district court’s judgment. See Indep.
Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not
consider any claims that were not actually argued in appellant’s opening brief.”);
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by
argument in pro se appellant’s opening brief are waived).
The district court did not abuse its discretion in denying McElroy’s request
for appointment of counsel because McElroy did not demonstrate that appointment
of counsel was justified. See Harrington v. Scribner, 785 F.3d 1299, 1309 (9th
Cir. 2015) (setting forth standard of review and requirements for appointment of
counsel in a civil action).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
McElroy’s motion to appoint counsel (Docket Entry No. 3) is denied.
AFFIRMED.

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