Kuleana, LLC v. Diversified Wood Recycling, Inc. , 383 F. App'x 601 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KULEANA, LLC, a Washington limited No. 09-35811
liability company; HAROLD E.
JOHNSON, a single man, D.C. No. 2:09-cv-00114-EFS
Plaintiffs - Appellants,
MEMORANDUM *
v.
DIVERSIFIED WOOD RECYCLING,
INC., a Washington corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, United States District Judge, Presiding
Submitted June 8, 2010 **
Seattle, Washington
Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court did not err in dismissing Kuleana’s complaint for failure to
state a claim. Kuleana failed to show that Diversified’s use of the court system to
foreclose a lien constituted state action. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). The complaint did not allege that the state statute or the state
court procedures were unconstitutional or violated Kuleana’s rights. See
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620–21 (1991); Tulsa
Prof’l Collection Sers. v. Pope, 485 U.S. 478, 491 (1988). Nor are Diversified’s
actions fairly attributable to the state, because there was no joint action between
Diversified and the state court. See Collins v. Womancare, 878 F.2d 1145, 1154
(9th Cir. 1989). The complaint did not allege conspiracy or concerted action. See
Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983). The allegation that a
private party misused state procedures outlined in a state statute is not enough to
establish state action, “even though the procedures themselves required the
involvement of the county clerk” or other state official. Id. at 384 n.9. And,
“merely resorting to the courts and being on the winning side of a lawsuit does not
make a party a co-conspirator or a joint actor with the judge.” Dennis v. Sparks,
449 U.S. 24, 28 (1980).
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Because Kuleana failed to establish state action, the complaint failed to
allege a violation of the Fourteenth Amendment and also failed to satisfy the
under-color-of-law requirement of § 1983. See Collins, 878 F.2d at 1148.
Diversified’s request for attorneys’ fees is denied because Kuleana’s claims
are not “vexatious, frivolous, or brought to harass or embarrass the defendant.”
Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983).
AFFIRMED.
3