                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 03 2016

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



                            FOR THE NINTH CIRCUIT


TANYA GRACE McDANIEL,                            No. 15-16734

              Plaintiff-Appellant,               D.C. No. 2:15-cv-00828-GEB-
                                                 CKD
 v.

THE SECRETARIAT; et al.,                         MEMORANDUM*

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and CHRISTEN, Circuit Judges.

      Tanya Grace McDaniel appeals pro se from the district court’s judgment

dismissing her 42 U.S.C. § 1983 action alleging violations of her civil rights. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal under 28 U.S.C. § 1915(e)(2). Barren v. Harrington, 152 F.3d 1193,

      *
             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).
1194 (9th Cir. 1998) (order). We affirm.

       The district court properly dismissed McDaniel’s action because McDaniel

failed to allege facts sufficient to show that defendants were acting under color of

state law, as required to state a plausible claim for relief under § 1983. See

Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149-50 (9th Cir. 2011)

(setting forth elements of a § 1983 claim and describing instances in which a

private actor’s conduct constitutes state action); Caviness v. Horizon Cmty.

Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (“The state-action element

in § 1983 excludes from its reach merely private conduct, no matter how

discriminatory or wrongful.” (citation and internal quotation marks omitted)); see

also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se

pleadings are to be liberally construed, a plaintiff must present factual allegations

sufficient to state a plausible claim for relief).




                                             2                                   15-16734
       The district court did not abuse its discretion by dismissing McDaniel’s

action without providing a third opportunity to amend the complaint because

further amendment would be futile. See Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and

explaining that dismissal without leave to amend is proper when amendment would

be futile).

       AFFIRMED.




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