Frank C. Carson v. County of Stanislaus; Steve Jacobsen

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK C. CARSON,
Plaintiff - Appellant,
v.
COUNTY OF STANISLAUS; STEVE
JACOBSEN,
Defendants - Appellees.
No. 11-17392
D.C. No. 1:10-cv-02133-OWW-
SMS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted June 14, 2013
San Francisco, California
FILED
JUN 25 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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** The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
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Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and SINGLETON,
District Judge.**
We have jurisdiction to review Carson’s First Amendment claim, which was
dismissed with prejudice and without leave to amend, even though Carson did not
reallege that claim in his first amended complaint. See Lacey v. Maricopa County,
693 F.3d 896, 928 (9th Cir. 2012). The district court did not err in dismissing the
federal claims set forth in Carson’s original and first amended complaint because
neither complaint satisfied the pleading standards set forth in Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Carson alleged insufficient facts to support the inference
that Jacobsen acted under color of state law. See Anderson v. Warner, 451 F.3d
1063, 1068-69 (9th Cir. 2006). Jacobsen’s status as a peace officer at the time of
the alleged incident does not automatically render his conduct state action. See
Gritchen v. Collier, 254 F.3d 807, 812-13 (9th. Cir. 2001). The district court did
not abuse its discretion in dismissing Carson’s federal claims without further leave
to amend because amendment would have been futile. See Kendall v. Visa U.S.A.,
Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). After two attempts, Carson failed to

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allege facts supporting the inference that Jacobsen acted under color of law. See
id. at 1051-52.
AFFIRMED.

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