                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 25 2013

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




                            FOR THE NINTH CIRCUIT



FRANK C. CARSON,                                 No. 11-17392

              Plaintiff - Appellant,             D.C. No. 1:10-cv-02133-OWW-
                                                 SMS
  v.

COUNTY OF STANISLAUS; STEVE                      MEMORANDUM *
JACOBSEN,

              Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Oliver W. Wanger, Senior District Judge, Presiding

                        Argued and Submitted June 14, 2013
                             San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and SINGLETON,
District Judge.**

      We have jurisdiction to review Carson’s First Amendment claim, which was

dismissed with prejudice and without leave to amend, even though Carson did not

reallege that claim in his first amended complaint. See Lacey v. Maricopa County,

693 F.3d 896, 928 (9th Cir. 2012). The district court did not err in dismissing the

federal claims set forth in Carson’s original and first amended complaint because

neither complaint satisfied the pleading standards set forth in Bell Atlantic

Corporation v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Carson alleged insufficient facts to support the inference

that Jacobsen acted under color of state law. See Anderson v. Warner, 451 F.3d

1063, 1068-69 (9th Cir. 2006). Jacobsen’s status as a peace officer at the time of

the alleged incident does not automatically render his conduct state action. See

Gritchen v. Collier, 254 F.3d 807, 812-13 (9th. Cir. 2001). The district court did

not abuse its discretion in dismissing Carson’s federal claims without further leave

to amend because amendment would have been futile. See Kendall v. Visa U.S.A.,

Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). After two attempts, Carson failed to




      **     The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.

                                           2
allege facts supporting the inference that Jacobsen acted under color of law. See

id. at 1051-52.

AFFIRMED.




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