D'Agostino

MEMORANDUM **

Lea Purwin D’Agostino appeals the district court’s Rule 12(b)(6) dismissal of her 42 U.S.C. § 1983 action arising out of the April 10, 2001 primary election for the position of Los Angeles City Attorney. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo a district court’s Rule 12(b)(6) dismissal for failure to state a claim upon which relief can be granted. Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir.2003). We agree with the district court that D’Agostino cannot state a procedural due process claim because: (1) she has no property interest as a candidate in the primary in a city election; (2) she has an available California procedure to challenge Delgadillo’s qualifications for city attorney; (3) Delgadillo was not acting under color of law; and (4) the city defendants are entitled to qualified immunity. Because the parties are familiar with the facts, we recite them only as necessary for this decision.

To state a § 1983 claim for procedural due process, D’Agostino must assert: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process.” Portman v.…