                                                                                       FILED
                               NOT FOR PUBLICATION                                      JUL 09 2013

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



                                FOR THE NINTH CIRCUIT

 PATRICK VINATIERI,                                     No. 11-16922

                 Plaintiff - Appellant,                 D.C. No. 3:10-cv-03854-RS

   v.
                                                        MEMORANDUM*
 AARON MOSLEY; et al.,

                 Defendants - Appellees.


                       Appeal from the United States District Court
                          for the Northern District of California
                        Richard Seeborg, District Judge, Presiding

                          Argued and Submitted April 16, 2013
                               San Francisco, California

Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,** District
Judge.




             *
          This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
        The Honorable John R. Tunheim, United States District Judge for the District of
Minnesota, sitting by designation.
      Plaintiff Patrick Vinatieri appeals from the district court’s order dismissing,

without leave to amend, Vinatieri’s claims brought under 42 U.S.C. § 1983. We

have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      We review de novo dismissals for failure to state a claim. Johnson v. Lucent

Techs. Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). "Dismissal with prejudice and

without leave to amend is not appropriate unless it is clear on de novo review that

the complaint could not be saved by amendment." Eminence Capital, LLC v.

Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

      Plaintiff failed to allege sufficiently "the existence of an agreement or

meeting of the minds to violate constitutional rights" to survive the motion to

dismiss his § 1983 conspiracy claims against Defendant Aaron Mosley. See

Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (internal quotation

marks omitted). At most, Plaintiff’s second amended complaint demonstrates that

Mosley was friendly with the Vallergas family and was frequently involved in the

parties’ disputes in a law enforcement capacity. The pleadings do not support a

claim for a § 1983 conspiracy because they do not establish that Mosley conspired

with the Vallergas to engage in the August 30 beating or that any connection

between the Defendants stemmed from an agreement to deprive Plaintiff of his

constitutional rights. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929-30


                                          2
(9th Cir. 2004) (dismissing a complaint where it was "devoid of any discussion of

an agreement amongst the appellees to violate [appellant’s] constitutional rights").

       Plaintiff’s equal protection claim against Mosley also fails because Plaintiff

did not establish that he was "intentionally treated differently from others similarly

situated." See SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th

Cir. 2002). Plaintiff’s second amended complaint contains no facts showing that

Mosley’s failure to arrest the Vallergas was an improper exercise of Mosley’s

discretion or otherwise constituted unconstitutional, differential treatment. See

Elliot-Park v. Manglona, 592 F.3d 1003, 1006-08 (9th Cir. 2010).

       Because Plaintiff failed to allege a § 1983 conspiracy adequately, his claims

against Defendant Arnold Vallerga, a private party, must be dismissed. See

Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783 (9th Cir. 2001) ("Because

§ 1983 creates liability for deprivations of federal rights 'under color of state law,'

[private] defendants cannot be liable unless they conspired or acted jointly with

state actors to deprive the plaintiffs of their constitutional rights.").

       Finally, the dismissal of Plaintiff’s § 1983 claims without leave to amend is

proper because the district court had previously provided Plaintiff with the

opportunity to amend, and Plaintiff failed to allege facts that, if true, would entitle

him to relief. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.


                                             3
2010) ("A district court may deny a plaintiff leave to amend . . . if the plaintiff had

several opportunities to amend its complaint and repeatedly failed to cure

deficiencies." (citations omitted)).

      AFFIRMED.




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