FILED
NOT FOR PUBLICATION NOV 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANYA GRACE McDANIEL, No. 15-16734
Plaintiff-Appellant, D.C. No. 2:15-cv-00828-GEB-
CKD
v.
THE SECRETARIAT; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Tanya Grace McDaniel appeals pro se from the district court’s judgment
dismissing her 42 U.S.C. § 1983 action alleging violations of her civil rights. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal under 28 U.S.C. § 1915(e)(2). Barren v. Harrington, 152 F.3d 1193,
*
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).
1194 (9th Cir. 1998) (order). We affirm.
The district court properly dismissed McDaniel’s action because McDaniel
failed to allege facts sufficient to show that defendants were acting under color of
state law, as required to state a plausible claim for relief under § 1983. See
Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149-50 (9th Cir. 2011)
(setting forth elements of a § 1983 claim and describing instances in which a
private actor’s conduct constitutes state action); Caviness v. Horizon Cmty.
Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (“The state-action element
in § 1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrongful.” (citation and internal quotation marks omitted)); see
also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se
pleadings are to be liberally construed, a plaintiff must present factual allegations
sufficient to state a plausible claim for relief).
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The district court did not abuse its discretion by dismissing McDaniel’s
action without providing a third opportunity to amend the complaint because
further amendment would be futile. See Cervantes v. Countrywide Home Loans,
Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and
explaining that dismissal without leave to amend is proper when amendment would
be futile).
AFFIRMED.
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