Vancois D'Amoun v. Gerald Villareal ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VANCOIS L. D’AMOUN, No. 15-16631
Plaintiff-Appellant, D.C. No. 3:15-cv-01008-MEJ
v.
MEMORANDUM*
GERALD VILLAREAL; ROBERT
MADDOCK,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding**
Submitted October 25, 2016***
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Vancois L. D’Amoun appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional violations in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
connection with his state court criminal trial. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), Naffe v. Frey, 789 F.3d 1030, 1035 (9th
Cir. 2015), and we affirm.
The district court properly dismissed D’Amoun’s claims against defendant
Maddock because D’Amoun failed to allege facts sufficient to show that Maddock
deprived him of a federal right. See id. at 1035-36 (“To state a claim under § 1983,
a plaintiff [1] must allege the violation of a right secured by the Constitution and
laws of the United States, and [2] must show that the alleged deprivation was
committed by a person acting under color of state law.” (citation and internal
quotation marks omitted)).
The district court properly dismissed D’Amoun’s claims against defendant
Villareal, who represented D’Amoun at his criminal trial, because D’Amoun failed
to allege facts sufficient to show that Villareal was acting under color of state law.
See id.; Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (“[A]n attorney,
whether retained or appointed, does not act ‘under color of’ state law.”).
D’Amoun’s contentions that the district court was biased against him, and
improperly granted Villareal’s motion to dismiss because D’Amoun was neither
sent nor served with the motion, are unpersuasive.
2 15-16631
Villareal’s motion for sanctions under Federal Rule of Appellate Procedure
38, filed on December 11, 2015, is denied.
AFFIRMED.
3 15-16631