Gary Kendall v. Department of Veterans Affairs

MEMORANDUM

Gary Owen Kendall appeals pro se from the district court’s judgment dismissing pursuant to the screening provisions of 28 U.S.C. § 1915 (e) his action against the Department of Veterans Affairs (‘VA”) and VA officials alleging improper denial of benefits and infliction of emotional distress. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we affirm in part, and vacate and remand in part, with instructions to the district court to enter judgment of dismissal without prejudice.

The district court properly dismissed Kendall’s claims concerning the denials of benefits by the VA because the district court lacked subject matter jurisdiction as to those claims. See 38 U.S.C. § 511 (a); Tietjen v. U.S. Veterans Admin., 884 F.2d 514, 515 (9th Cir.1989) (order) (affirming dismissal for lack of subject matter jurisdiction where the district court “properly examined the substance of [the plaintiff’s] action to ascertain whether it challenge^] a decision ... concerning a benefit provided by a law administered by the Veterans Administration”) (internal quotation marks omitted); Rosen v.…