Felipe Lugo v. Mike Carter , 362 F. App'x 639 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 12 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FELIPE LUGO, No. 08-17297
Plaintiff - Appellant, D.C. No. 4:08-CV-00431-FRZ-
PSOT
v.
MIKE CARTER, S.E. Arizona M.C.; et MEMORANDUM *
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Felipe Lugo, an Arizona state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action without leave to amend.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
IL/RESEARCH
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district
court’s dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915A,
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and we review for an abuse of
discretion the denial of leave to amend, Halet v. Wend Inv. Co., 672 F.2d 1305,
1310 (9th Cir. 1982). We affirm.
The district court correctly dismissed Lugo’s complaint because he failed to
allege that the defendants were acting under color of state law. See O’Guinn v.
Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (recognizing that
allegation of state action is a “necessary element of a § 1983 claim”). Because
Lugo has failed to explain how the defendants acted under color of state law, the
district court acted within its discretion by dismissing his complaint without leave
to amend. See Bowen v. Olstead, 125 F.3d 800, 806 (9th Cir. 1997) (affirming
dismissal in part because appellant failed to explain how he could have amended
complaint to state a claim).
AFFIRMED.
IL/RESEARCH 2