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Kerner v. Mendez

United States Court of Appeals, Ninth Circuit
Nov 12, 2010
403 F. App'x 225 (9th Cir. 2010)

Opinion

No. 09-16970.

Submitted November 2, 2010.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed November 12, 2010.

Carl B. Shapiro, Esquire, Shapiro Shapiro, San Anselmo, CA, for Plaintiff-Appellant.

Richard G. Grotch, Coddington, Hicks Danforth, Redwood City, CA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California, Elizabeth D. Laporte, Magistrate Judge, Presiding. D.C. No. 3:08-cv-04528-EDL.

Before: KOZINSKI, Chief Judge, RYMER, Circuit Judge, and TRAGER, District Judge.

The Honorable David G. Trager, Senior United States District Judge for the Eastern District of New York, sitting by designation.



MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Plaintiff Mary C. Kerner ("plaintiff) appeals from an order issued by the District Court for the Northern District of California dismissing her claim under 42 U.S.C. § 1983 ("Section 1983") against defendants United Airlines and three United Airlines employees, including Jorge Mendez (collectively, "defendants"). Given the parties' familiarity with the facts, we do not recount them here. This Court has jurisdiction under 28 U.S.C. § 1291. For the following reasons, the decision of the district court is affirmed.

A district court's decision to dismiss a Section 1983 action pursuant to Rule 12(b)(6) is reviewed de novo. Watson v. Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006). A plaintiff asserting a Section 1983 claim must allege the deprivation of a constitutional right by a defendant acting under color of state law. Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002).

Mendez was not acting under color of state law. See Collins v. Womancare, 878 F.2d 1145, 1150-56 (9th Cir. 1989); Ibrahim v. Dep't of Homeland Sec, 538 F.3d 1250, 1257-58 (9th Cir. 2008). Kerner has not alleged facts showing that the state may "fairly be blamed" for the defendants' conduct. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

Because the district court correctly concluded that the alleged deprivation underlying Plaintiffs Section 1983 claim was not under "color of state law," the district court's decision is affirmed.

AFFIRMED.


Summaries of

Kerner v. Mendez

United States Court of Appeals, Ninth Circuit
Nov 12, 2010
403 F. App'x 225 (9th Cir. 2010)
Case details for

Kerner v. Mendez

Case Details

Full title:Mary C. KERNER, Plaintiff-Appellant, v. Jorge MENDEZ; Patrick Phillips…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 12, 2010

Citations

403 F. App'x 225 (9th Cir. 2010)