               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 02-1954

                         ROBERT D. SPICKLER,

                        Plaintiff, Appellant,

                                     v.

                      CARROLL R. LEE, ET AL.,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                                  Before

                   Cyr, Senior Circuit Judge,
                Lynch and Lipez, Circuit Judges.




     Robert D. Spickler on brief pro se.
     Paul W. Chaiken, Timothy A. Pease and Rudman & Winchell, LLC
on brief for appellees.



                             March 31, 2003
       Per Curiam.     Plaintiff Robert Spickler, a retired real-estate

developer in Maine, filed this action against three managers of a

private electric-utility company, alleging breach of an agreement

to install power lines free of charge once certain conditions were

met.     Brought under 42 U.S.C. § 1983, the complaint set forth

claims      under    both    federal    and    state   law.      Upon    motion   of

defendants, the district court dismissed the federal claims under

Fed. R. Civ. P. 12(b)(6) for failure to state a claim, concluding

that the requisite state action had not been established.                  See 208

F. Supp. 2d 68 (D. Me. 2002).           In turn, it dismissed the state-law

claims without prejudice pursuant to 28 U.S.C. § 1367(c). Spickler

has appealed, and we now affirm.

       We   agree,    substantially      for    the    reasons   recited    by    the

district court, that the complaint did not make a sufficient

allegation     of    state    action.     Such    a    conclusion   is   virtually

dictated by Jackson v. Metropolitan Edison Co., 419 U.S. 345

(1974), a case which Spickler has failed to distinguish in any

meaningful sense.       As there, the regulatory commission here cannot

be said to have placed its "imprimatur" on the challenged practice

(the alleged rescission of all pre-1990 contracts) simply by having

assented thereto.       Id. at 357; accord, e.g., Blum v. Yaretsky, 457

U.S. 991, 1004-05 (1982) ("[m]ere approval of or acquiescence in

the initiatives of a private party is not sufficient to justify

holding the State responsible for those initiatives"); see also


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Destek Group, Inc. v. New Hampshire Public Utilities Comm'n, 318

F.3d   32,   39-40   &   n.17   (1st   Cir.   2003)   (holding   that   state

commission's approval of agreement between telephone company and

university did not convert company into state actor); Logiodice v.

Trustees of Maine Central Inst., 296 F.3d 22, 30-31 (1st Cir. 2002)

(discussing Jackson), cert. denied, 123 S. Ct. 882 (2003); Jemzura

v. Public Service Comm'n, 971 F. Supp. 702, 706-07 (N.D.N.Y. 1997)

(dismissing for lack of state action under similar circumstances).

The other factors upon which Spickler relies do not change this

result.

       Spickler also advances a pair of procedural objections--

protesting that the complaint was dismissed without the opportunity

to conduct discovery or to amend.             Under the circumstances, we

perceive no error.        The state-action inquiry, to be sure, is

"necessarily fact-bound."        Brentwood Acad. v. Tennessee Secondary

School Athletic Ass'n, 531 U.S. 288, 298 (2001) (quoting Lugar v.

Edmondson Oil Co., 457 U.S. 922, 939 (1982)).              Yet disposition

thereof at the Rule 12(b)(6) stage prior to discovery is not always

unwarranted.    See, e.g., Gonzalez-Morales v. Hernandez-Arencibia,

221 F.3d 45, 47-51 (1st Cir. 2000); accord, e.g., Hack v. President

and Fellows of Yale College, 237 F.3d 81, 84-85 (2d Cir. 2000),

cert. denied, 534 U.S. 888 (2001); DeBauche v. Trani, 191 F.3d 499,

506-09 (4th Cir. 1999).         Here, we see no hint that Spickler's

requested discovery would have yielded anything of pertinence to


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the state-action issue.      Indeed, we note that the complaint in

Jackson itself was dismissed on the pleadings.           See 348 F. Supp.

954, 955, 958 (M.D. Pa. 1972), aff'd, 483 F.2d 754 (3d Cir. 1973),

aff'd, 419 U.S. 345 (1974).

     In turn, Spickler's district court pleadings and appellate

submissions make it clear that, with respect to the three named

defendants,    any   amendment   of    his   complaint   would   have   been

"futile."     Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59

(1st Cir. 1990).     Indeed, Spickler focuses on a separate matter on

appeal, expressing the wish to add a member of the regulatory

commission as a defendant. Yet contrary to his assertion, see Blue

Brief at 14-15, such a possibility was never mentioned below.           The

district court cannot be faulted for failing to anticipate such a

request, and under the circumstances we see no reason to pursue it

further.

     Affirmed.




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