NOT FOR PUBLICATION FILED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