Alton Bea Whatley, Jr., Plaintiff-appellant, v. Greyhound Buslines, Inc., Defendant-appellee, 967 F.2d 596 (9th Cir. 1992)

MEMORANDUM^** 

Alton Bea Whatley, Jr., a California state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 civil rights action as frivolous. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

An in forma pauperis complaint may be dismissed before service of process under 28 U.S.C. § 1915(d) if it is frivolous. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous if "it lacks an arguable basis in law or in fact." Id. at 325. We review a district court's dismissal of an action pursuant to section 1915(d) for an abuse of discretion. See Denton v. Hernandez, No. 90-1846, 60 U.S.L.W. 4346, 4348 (May 4, 1992).

To state a section 1983 claim, the plaintiff must allege facts showing a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the United States Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

In his complaint, Whatley named Greyhound Bus Lines, Inc. ("Greyhound") as the sole defendant. Neither Greyhound nor its ticket agent are persons acting under the color of state law. See id. Because there is no state action, Whatley's section 1983 suit lacks an arguable basis in law and was properly dismissed by the district court. See Neitzke, 490 U.S. at 324; Jackson v. Arizona, 885 F.2d 639, 640-41 (9th Cir. 1989).

AFFIRMED.