Tony Appleby v. Johnson & Johnson, official capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY APPLEBY,
Plaintiff-Appellant,
v.
JOHNSON & JOHNSON, official capacity;
JOHNSON AND JOHNSON
PHARMACEUTICAL, official capacity,
Defendants-Appellees.
No. 22-55800
D.C. No. 2:21-cv-07109-CJC-ADS
MEMORANDUM*
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).
FILED
SEP 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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