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United States Court of Appeals, Ninth Circuit.

Dale E. PHILLIPS, Plaintiff-Appellant, v. SOUTH COAST PLAZA; et al., Defendants-Appellees.

No. 18-56070

Decided: November 25, 2019

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges. Dale E. Phillips, Pro Se Mhare O. Mouradian, Esquire, Attorney, Fox Rothschild LLP, Los Angeles, CA, Terry Anastassiou, Ropers, Majeski, Kohn & Bentley, San Francisco, CA, for Defendant - Appellee South Coast Plaza Brian W. Brokate, Esquire, Gibney, Anthony & Flaherty LLP, New York, NY, Colin Calvert, Esquire, Attorney, Fisher & Phillips, LLP, Irvine, CA, for Defendant - Appellee Rolex Watch USA, Inc.


Dale E. Phillips appeals pro se from the district court's order dismissing his 42 U.S.C. § 1983 action arising out of a trespass warning he received from South Coast Plaza mall. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court's dismissal of a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002), and we affirm.

The district court properly dismissed Phillips's § 1983 action because Phillips failed to allege facts sufficient to show the violation of a constitutional right, or the presence of state action. See Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015) (“Dismissal of a § 1983 claim following a Rule 12(b)(6) motion is proper if the complaint is devoid of factual allegations that give rise to a plausible inference of either element.”); id. at 1035-36 (setting forth elements of § 1983 claim); Brewster v. Board of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 981 (9th Cir. 1998) (setting forth elements of procedural due process claim).

The district court did not abuse its discretion in denying leave to amend because amendment would have been futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile).


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