Tony Appleby v. Johnson and Johnson Corporation

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TONY APPLEBY, No. 22-55800 Plaintiff-Appellant, D.C. No. 2:21-cv-07109-CJC-ADS v. MEMORANDUM* JOHNSON & JOHNSON, official capacity; JOHNSON AND JOHNSON PHARMACEUTICAL, official capacity, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted September 12, 2023** Before: CANBY, CALLAHAN, and OWENS, Circuit Judges. California state prisoner Tony Appleby appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a * 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). district court’s dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm. The district court properly dismissed Appleby’s action because Appleby failed to allege facts in his amended complaint sufficient to show that defendants were acting under color of state law when they allegedly violated Appleby’s constitutional rights. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must . . . show that the alleged deprivation was committed by a person acting under color of state law.”); Simmons v. Sacramento County Super. Ct., 318 F.3d 1156, 1161 (9th Cir. 2003) (conclusory allegations are insufficient to establish a party was a state actor for purposes of § 1983). AFFIRMED. 2 22-55800