
    Rene MCINTYRE, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO; et al., Defendants-Appellees.
    No. 01-17325.
    D.C. No. CV-01-01244-CRB.
    United States Court of Appeals, Ninth Circuit.
    Submitted Aug. 12, 2002.
    
    Decided Aug. 16, 2002.
    Before SCHROEDER, Chief Judge, TASHIMA and RAWLINSON, Circuit Judges.
    
      
      
         The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Rene McIntyre appeals pro se the district court’s order dismissing his action alleging breach of contract and discrimination in connection with a delayed Southwest Airlines flight. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999), and affirm.

The district court properly concluded that McIntyre failed to state a 42 U.S.C. § 1983 claim because the facts he alleged do not set forth a constitutional deprivation under any cognizable theory. See Duffy v. Riveland, 98 F.3d 447, 456-57 (9th Cir.1996).

The district court properly concluded that McIntyre failed to state a claim pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12132, or the Rehabilitation Act, 29 U.S.C. § 794, because he failed to allege facts demonstrating that he suffered from a qualifying disability, or that defendants discriminated against him on that basis. See id. at 453-55.

The district court did not abuse its discretion by dismissing McIntyre’s complaint with prejudice because further amendment would have been futile. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). The district court properly dismissed McIntyre’s pendent state claims without prejudice. See Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir.1997).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     