Unpublished Disposition, 936 F.2d 579 (9th Cir. 1991)

MEMORANDUM^** 

Elmer Seevers appeals an order of the district court dismissing with prejudice his Second Amended Complaint. Seevers contends the district court erred by dismissing his claim under the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a) (6) (C), for failure to exhaust administrative remedies and by dismissing his Second Amended Complaint with prejudice. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

* FOIA Claim

Seevers contends the district court erred by dismissing his FOIA claim for failure to exhaust administrative remedies. Seevers argues that a letter sent to him by the Department of the Navy, which stated that "you have exhausted your administrative remedies and may seek judicial review [of the failure to comply with the FOIA request]," equitably estops the government from arguing he failed to exhaust his administrative remedies before bringing the action in the district court. Seevers concedes that he did not raise this issue below.

In the absence of exceptional circumstances, we will not consider issues not raised below. United States v. State of Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985). In addition, " [p]apers not filed with the district court or admitted into evidence by that court are not part of the clerk's record and cannot be part of the record on appeal." Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir. 1988); see Fed. R. App. P. 10(a); 9th Cir.R. 10-2.

Here, Seevers' argument that the government should be equitably estopped from relying on his failure to exhaust his administrative remedies is raised for the first time on appeal and is based upon a letter which was never introduced into the district court record. There is no showing of exceptional circumstances here, nor does Seevers assert that the letter upon which he relies was filed in or submitted to the district court, and we therefore decline to address this claim. See Kirshner, 842 F.2d at 1018; State of Oregon, 769 F.2d at 1414.

II

Dismissal With Prejudice

Seevers contends the district court erred by dismissing his Second Amended Complaint with prejudice. Seevers' sole argument in support of this position is that he was clearly incompetent to represent himself pro se and that, therefore, the district court should have dismissed the complaint with leave to amend contingent upon his obtaining legal counsel. In making his argument, Seevers does not contend that the Second Amended Complaint was not defective.

We review for abuse of discretion the district court's denial of leave to amend a complaint after a responsive pleading has been filed. Thomas-Lazear v. FBI, 851 F.2d 1202, 1206 (9th Cir. 1988). "Dismissal of a pro se complaint without leave to amend is proper only if it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Schucker v. Rockwood, 846 F.2d 1202, 1203-1204 (9th Cir.) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)), cert. denied, 488 U.S. 995 (1988).

Here, the district court twice dismissed Seevers' complaint with leave to amend. Both district court orders granting the defense motions to dismiss Seevers' action identified the defects in his complaints and specified how he might cure those defects. Despite this, Seevers' Second Amended Complaint failed to cure the deficiencies of the first two complaints. Seevers presents no authority which supports his claim that a pro se litigant is entitled to conditional dismissal of a third defective complaint and we discern no basis upon which we could grant the requested relief.

AFFIRMED.