FILED
NOT FOR PUBLICATION JUL 09 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK VINATIERI, No. 11-16922
Plaintiff - Appellant, D.C. No. 3:10-cv-03854-RS
v.
MEMORANDUM*
AARON MOSLEY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted April 16, 2013
San Francisco, California
Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the District of
Minnesota, sitting by designation.
Plaintiff Patrick Vinatieri appeals from the district court’s order dismissing,
without leave to amend, Vinatieri’s claims brought under 42 U.S.C. § 1983. We
have jurisdiction under 28 U.S.C. § 1291 and we affirm.
We review de novo dismissals for failure to state a claim. Johnson v. Lucent
Techs. Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). "Dismissal with prejudice and
without leave to amend is not appropriate unless it is clear on de novo review that
the complaint could not be saved by amendment." Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Plaintiff failed to allege sufficiently "the existence of an agreement or
meeting of the minds to violate constitutional rights" to survive the motion to
dismiss his § 1983 conspiracy claims against Defendant Aaron Mosley. See
Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (internal quotation
marks omitted). At most, Plaintiff’s second amended complaint demonstrates that
Mosley was friendly with the Vallergas family and was frequently involved in the
parties’ disputes in a law enforcement capacity. The pleadings do not support a
claim for a § 1983 conspiracy because they do not establish that Mosley conspired
with the Vallergas to engage in the August 30 beating or that any connection
between the Defendants stemmed from an agreement to deprive Plaintiff of his
constitutional rights. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929-30
2
(9th Cir. 2004) (dismissing a complaint where it was "devoid of any discussion of
an agreement amongst the appellees to violate [appellant’s] constitutional rights").
Plaintiff’s equal protection claim against Mosley also fails because Plaintiff
did not establish that he was "intentionally treated differently from others similarly
situated." See SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th
Cir. 2002). Plaintiff’s second amended complaint contains no facts showing that
Mosley’s failure to arrest the Vallergas was an improper exercise of Mosley’s
discretion or otherwise constituted unconstitutional, differential treatment. See
Elliot-Park v. Manglona, 592 F.3d 1003, 1006-08 (9th Cir. 2010).
Because Plaintiff failed to allege a § 1983 conspiracy adequately, his claims
against Defendant Arnold Vallerga, a private party, must be dismissed. See
Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783 (9th Cir. 2001) ("Because
§ 1983 creates liability for deprivations of federal rights 'under color of state law,'
[private] defendants cannot be liable unless they conspired or acted jointly with
state actors to deprive the plaintiffs of their constitutional rights.").
Finally, the dismissal of Plaintiff’s § 1983 claims without leave to amend is
proper because the district court had previously provided Plaintiff with the
opportunity to amend, and Plaintiff failed to allege facts that, if true, would entitle
him to relief. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.
3
2010) ("A district court may deny a plaintiff leave to amend . . . if the plaintiff had
several opportunities to amend its complaint and repeatedly failed to cure
deficiencies." (citations omitted)).
AFFIRMED.
4