                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          JAN 12 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

FELIPE LUGO,                                     No. 08-17297

               Plaintiff - Appellant,            D.C. No. 4:08-CV-00431-FRZ-
                                                 PSOT
  v.

MIKE CARTER, S.E. Arizona M.C.; et               MEMORANDUM *
al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                              for the District of Arizona
                      Frank R. Zapata, District Judge, Presiding

                            Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       Felipe Lugo, an Arizona state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action without leave to amend.



          *
             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).

IL/RESEARCH
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district

court’s dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915A,

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and we review for an abuse of

discretion the denial of leave to amend, Halet v. Wend Inv. Co., 672 F.2d 1305,

1310 (9th Cir. 1982). We affirm.

      The district court correctly dismissed Lugo’s complaint because he failed to

allege that the defendants were acting under color of state law. See O’Guinn v.

Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (recognizing that

allegation of state action is a “necessary element of a § 1983 claim”). Because

Lugo has failed to explain how the defendants acted under color of state law, the

district court acted within its discretion by dismissing his complaint without leave

to amend. See Bowen v. Olstead, 125 F.3d 800, 806 (9th Cir. 1997) (affirming

dismissal in part because appellant failed to explain how he could have amended

complaint to state a claim).

      AFFIRMED.




IL/RESEARCH                               2
