                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MARLON JOHNSON PRYOR,                            No. 09-55730

               Plaintiff - Appellant,            D.C. No. 3:07-cv-00424-MMA-
                                                 JMA
  v.

HEART N SOUL TAX SERVICES OF                     MEMORANDUM *
VALLEJO, INC., DBA Jackson Hewitt
Tax Service; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.

       Marlon Johnson Pryor appeals pro se from the district court’s judgment

dismissing his Title VII action. We have jurisdiction under 28 U.S.C. § 1291. We




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir.

2004). We affirm.

      The district court properly dismissed Pryor’s hostile work environment

claim because he did not allege facts suggesting that his co-workers’ conduct was

based on his race or gender, or that it was sufficiently severe or pervasive to alter

the conditions of his employment. See Surrell v. Cal. Water Serv. Co., 518 F.3d

1097, 1108-09 (9th Cir. 2008).

      The district court properly dismissed Pryor’s retaliation claim because he did

not sufficiently allege facts suggesting that he complained about conduct

prohibited by Title VII before being terminated or otherwise subjected to an

adverse action. See Learned v. City of Bellevue, 860 F.2d 928, 932-33 (9th Cir.

1988) (Title VII retaliation claim fails where plaintiff did not complain about

conduct prohibited by Title VII); see also Entm’t Research Grp., Inc. v. Genesis

Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (judges are not obliged to

dig through the record to find support for a party’s claims).

      The district court did not abuse its discretion by dismissing the first amended

complaint without leave to amend after concluding that further amendment would

be futile. See Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1087-88 (9th Cir. 2002)

(dismissal without leave to amend is not an abuse of discretion where further


                                           2                                      09-55730
amendment would be futile); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051-52

(9th Cir. 2008) (amendment futile where plaintiffs filed an amended complaint

containing the same defects as their original complaint).

       To the extent Pryor sought default judgments against any defendants, the

district court did not abuse its discretion by refusing to grant this relief after

concluding Pryor’s claims lacked merit. See Aldabe v. Aldabe, 616 F.2d 1089,

1092-93 (9th Cir. 1980) (per curiam). Moreover, contrary to Pryor’s contention,

the record does not indicate that Heart N Soul Tax Services of Vallejo, Inc. and

Pacific Capital Bancorp were properly served. See Fed. R. Civ. P. 4(h)(1); Barlow

v. Ground, 39 F.3d 231, 234 (9th Cir. 1994) (service by mail in California is valid

only if a signed acknowledgment is returned).

       Pryor’s remaining contentions are unpersuasive.

       We lift the stay as to appellee Heart N Soul Tax Services of Vallejo, Inc.

       AFFIRMED.




                                             3                                       09-55730
