Hawk v. California Department of Corrections & Rehabilitation

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SHAWN HAWK,                                     No. 16-16885

                Plaintiff-Appellant,            D.C. No. 2:15-cv-02529-KJM-CKD

 v.
                                                MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      California state prisoner Shawn Hawk appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action challenging the

circumstances under which he was denied parole. We have jurisdiction under 28


      *
             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).
U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A.

Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011). We affirm.

       The district court properly dismissed Hawk’s action because Hawk failed to

allege facts sufficient to state a plausible due process claim, and failed to allege

that he was otherwise “deprived . . . of rights secured by the Constitution or federal

statutes” by “defendants act[ing] under color of state law.” Krainski v. Nev. ex. rel.

Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010)

(elements of procedural due process claim); WMX Techs., Inc. v. Miller, 197 F.3d

367, 372 (9th Cir. 1999) (elements of § 1983 action); see also Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (factual allegations must “state a claim to

relief that is plausible on its face”).

       Contrary to Hawk’s contentions, the magistrate judge has the authority to

dismiss Hawk’s original complaint with leave to amend. See McKeever v. Block,

932 F.2d 795, 798 (9th Cir. 1991) (“[A] magistrate can . . . dismiss a complaint

with leave to amend without approval by the court.”).

       We reject as meritless Hawk’s contention that the district court violated his

rights to equal protection and access to the courts.

       AFFIRMED.

                                           2                                     16-16885