Opinion
No. 06-55445.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 10, 2007.
Chad Austin, Esq., San Diego, CA, for Plaintiff-Appellant.
Dan Zeidman, Esq., Law Offices of Dan Zeidman, El Cajon, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of California, John S. Rhoades, District Judge, Presiding. D.C. No. 06-cv-00353.
Before: SILVERMAN, WARDLAW, AND IKUTA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
James M. Kinder appeals the district court's order dismissing his 42 U.S.C. § 1983 claim against Dona Loshonkohl for lack of subject matter jurisdiction. Kinder's § 1983 claim asserts federal question jurisdiction based on his contention that California Civil Code § 47.5 is unconstitutional and seeks an injunction against enforcement of a judgment Loshonkohl won against him under § 47.5 in the state courts.
The district court correctly concluded that it lacked subject matter jurisdiction to adjudicate Kinder's claim. In Gritchen v. Collier, 254 F.3d 807 (9th Cir. 2001), we held that an officer's filing of a § 47.5 defamation action is not taken under color of state law, which is a "jurisdictional requisite for a § 1983 claim." Id. at 812 (citing West v. Atkins, 487 U.S. 42, 46, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)).