William Snow Hume, Plaintiff-appellant, v. Michael C. Maynard; Guy N. Ormes, Defendants-appellees, 108 F.3d 1385 (9th Cir. 1997)

MEMORANDUM^** 

William Snow Hume appeals pro se the district court's Fed. R. Civ. P. 12(b) (6) dismissal without prejudice of his 42 U.S.C. § 1983 action alleging that defendants threatened to arrest him for removing political campaign signs from private property. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, see Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987), and we affirm.

Hume contends that the district court erred by dismissing his action because he alleged facts sufficient to state a cognizable claim under section 1983. This contention lacks merit.

To state a section 1983 claim, a plaintiff must allege that defendant, while acting under color of state law, deprived him of a federally protected right. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988); Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam).

Here, Hume's allegation that defendants had threatened to arrest him did not implicate a protected federal right because a mere "threat to do an act prohibited by the Constitution is [not the] equivalent to doing the act itself." Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam). Moreover, we note that Hume's purported section 1983 action was based primarily upon defendants' alleged violation of state law, an inadequate basis to support a section 1983 action. See Karim-Panahi, 839 F.2d at 624; Gomez, 757 F.2d at 1006. Accordingly, the district court did not err by dismissing Hume's action without first allowing Hume an opportunity to amend his complaint. See Noll, 809 F.2d at 1448; see also Newland v. Dalton, 81 F.3d 904, 906-07 (9th Cir. 1996) (stating that a district court may deny leave to amend a complaint if the court has already dismissed the action without prejudice, and amendment would be futile).

AFFIRMED.¹