NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA BAUERLE,

Plaintiff

- Appellant,

v.

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; et al.,

Defendants

- Appellees. No. 14

- 16872

D.C. No. 4:12

- cv

- 00532

- CKJ

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted April 11, 2017 **

Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.

Patricia Bauerle appeals pro se from the district court’s judgment dismissing

her action brought under the Americans with Disabilities Act and 42 U.S.C.

§ 1983. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal under Fe deral Rule of Civil Procedure 12(b)(6), Hebbe v.

* 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). 

# FILED

APR 21 2017

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 14

- 16872

Pliler , 627 F.3d 338, 341 (9th Cir. 2010), and we affirm.
The district court properly dismissed Bauerle’s § 1983 claims against the

private defendants because Bauerle failed to allege facts sufficient to es tablish that
these defendants’ actions were fairly attributable to the state. See Briley v.

California , 564 F.2d 849, 855

- 56 (9th Cir. 1977) (“[P]rivate hospitals and

physicians have consistently been dismissed from [section] 1983 actions for failing

to c ome within the color of state law requirement

. . . .”) ; s ee also Sparling v.

Hoffman Constr. Co. , 864 F.2d 635, 638 (9th Cir. 1988) ( “[T] he plaintiffs could

not possibly win relief and [therefore] the dismissal was appropriate even though it

was on the court’ s own motion .” )

. In light of this determination, we do not

consider Bauerle’s contention regarding the timeliness of her First Amendment

claims against private defendants

. The district court did not abuse its discretion in dismissing Bauerle’s § 1983

claim s against the private defendants without leave to amend because amendment

would be futile. See United States v. Corinthian Colls

. , 655 F.3d 984, 995 ( 9th

Cir. 2011) (setting forth standard of review and explaining that leave to amend

may be deni ed if amendment would be futile).

The district court properly dismissed Bauerle’s claims against the Arizona

Department of Health Services as barred by the Eleventh Amendment. See

S outhern Pac. Transp. Co. v. City of Los Angeles , 922 F.2d 498, 508 (9th Cir.3 14

- 16872

1990) (claims seeking prospective relief against a state agency a re barred by the

Eleventh A mendment where the plaintiff fail s to name any state officials).
The district court properly dismissed Bauerle’s claims against t he United

States Department of Health and Human Services because Bauerle did not allege

facts sufficient to establish that a federal agent acted under the color of state law.

See Scott v. Rosenberg , 702 F.2d 1263, 1269 (9th Cir. 1983) ( discussing

requirement s under § 1983 to determine whether a federal agency acted under the

color of state law).

The district court did not err in failing to sua sponte recuse itself because

Bauerle did not demonstrate extrajudicial bias or prejudice. See 28 U.S.C. § 455;

Noli v. C omm’r. , 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to

the judge . . . a party will bear a greater burden on appeal in demonstrating that the
judge . . . [erred] in failing to grant recusal under section 455.” (alteration in

original) (citation and internal quotation marks omitted)).

The district court properly determined that obstruction of justice was not a

cognizable civil cause of action.

We do not consider matters not specifically and distinctly raised and argued

in the opening bri ef, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright , 587 F. 3d 983, 985 n.2 (9th Cir. 2009).

AFFRIMED.