Robert Kulick v. Leisure Village Assn, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT J. KULICK, DBA Leisure Village No. 20-56059
News,
D.C. No. 2:20-cv-06079-DSF-PVC
Plaintiff-Appellant,
v. MEMORANDUM*
LEISURE VILLAGE ASSOCIATION,
INC., a Senior Retirement Community
Homeowner Association, official capacity;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
Robert J. Kulick appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging First Amendment violations. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012).
We affirm.
The district court properly dismissed Kulick’s action because Kulick failed
to allege facts sufficient to establish that any defendant was acting under color of
state law. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under
§ 1983, a plaintiff must . . . show that the alleged deprivation was committed by a
person acting under color of state law.”); Kirtley v. Rainey, 326 F.3d 1088, 1092
(9th Cir. 2003) (identifying circumstances under which a private party may be said
to be acting under color of state law); see also Polk County v. Dodson, 454 U.S.
312, 317-19, 325 (1981) (a private attorney or a public defender does not act under
color of state law within the meaning of § 1983)); Hudgens v. NLRB, 424 U.S. 507,
519 (1976) (requiring a private party to perform “the full spectrum of municipal
powers and [stand] in the shoes of the State” to be considered a state actor under
the public function test).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, 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).
Kulick’s motion for this court to review arguments he made in three prior
2 20-56059
cases (Docket Entry No. 7) is granted.
AFFIRMED.
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