DEROME MCELROY V. AGENCY, No. 22-35072 (9th Cir. 2023)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FEB 24 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DEROME McELROY, U.S. COURT OF APPEALS No. 22-35072 Plaintiff-Appellant, v. D.C. No. 3:21-cv-05891-DGE MEMORANDUM* AGENCY, Unknown, Defendant-Appellee. 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). 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. 2 22-35072

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