United States v. 2020-07-20 | 19-15318 | JAMES BRISCOE, III V. RICHARD MADRID | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES ROBERT BRISCOE III,

Plaintiff-Appellant,

v.

RICHARD MADRID; et al.,

Defendants-Appellees.

No. 19-15318

D.C. No. 1:17-cv-00716-DAD-
SKO

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding

Submitted July 14, 2020
**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

James Robert Briscoe III appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28
U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

*
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).
FILED

JUL 20 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-15318
The district court properly dismissed Briscoe’s § 1983 claims against
Madrid because Briscoe failed to allege facts sufficient to show that Madrid was a
state actor. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although
pro se pleadings are construed liberally, plaintiff must present factual allegations
sufficient to state a plausible claim for relief); George v. Pac.–CSC Work
Furlough, 91 F.3d 1227, 1230-32 (9th Cir. 1996) (plaintiff alleging infringement of
constitutional rights by private parties must show that the infringement constitutes
state action; explaining approaches for determining state action). Any claims
arising from Madrid’s conduct described in Briscoe’s complaint arise under state
law and, absent a cognizable federal claim, are not properly before the federal
courts.
The district court properly dismissed Briscoe’s § 1983 claims against the
Doe defendants because Briscoe failed to allege facts sufficient to state a claim.
See Patel v. Kent Sch. Dist., 648 F.3d 965, 971-72, 974 (9th Cir. 2011) (explaining
“special-relationship” and “state-created danger” exceptions to the general rule that
a state actor is not liable for an omission or failure to protect); Hebbe, 627 F.3d at
341-42.
The district court did not abuse its discretion by denying Briscoe further
leave to amend his complaint because amendment would have been futile. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

3 19-15318
(setting forth standard of review and explaining that dismissal without leave to
amend is appropriate where amendment would be futile).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Briscoe’s request to correct the case caption (Docket Entry No. 9) is granted.
AFFIRMED.