Mike Yellen v. Boyd Gaming Corporation

FILED
NOT FOR PUBLICATION SEP 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MIKE YELLEN, No. 11-16949
Plaintiff - Appellant, D.C. No. 2:10-cv-01976-JCM-
GWF
v.
BOYD GAMING CORPORATION; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Mike Yellen appeals pro se from the district court’s judgment dismissing his
civil rights action alleging First and Fourteenth Amendment claims related to the
denial of entry into a private bowling tournament. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo a determination that a complaint fails to state a
claim, Trerice v. Pedersen, 769 F.2d 1398, 1400 (9th Cir. 1985), and for an abuse
of discretion a dismissal for failure to effect timely service, Puett v. Blandford, 912
F.2d 270, 273 (9th Cir. 1990). We may affirm on any ground supported by the
record, Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.
2008), and we affirm.
The district court did not abuse its discretion in dismissing Yellen’s action
for failure to effect timely service because Yellen did not seek an extension to
serve defendants and failed to provide the district court with a reason for his delay.
See Fed. R. Civ. P. 4(m); Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam) (arguments raised for the first time on appeal are deemed waived).
Moreover, the district court properly determined that Yellen failed to state a
viable § 1983 claim because Yellen failed to allege that defendants acted under
color of state law. See 42 U.S.C. § 1983; Jackson v. Metro. Edison Co., 419 U.S.
345, 350-51 (1974) (even a heavily regulated private party does not act under color
of state absent close nexus between the State and the challenged private conduct);
Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)
(vague allegations of official participation in civil rights violations cannot
withstand dismissal).
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Yellen’s claims under §§ 1985 and 1986 were not cognizable because Yellen
failed to allege a conspiracy to interfere with a federal officer’s duties, to obstruct
judicial proceedings, or to discriminate against him based on race or other class-
based grounds. See 42 U.S.C. §§ 1985, 1986; Bretz v. Kelman, 773 F.2d 1026,
1027-28 & n.3 (9th Cir. 1985) (en banc) (listing elements of § 1985 claim);
Trerice, 769 F.2d at 1403 (§ 1986 claim must be premised on valid § 1985 claim).
Yellen’s § 1988 claim failed because § 1988 does not create an independent
civil rights claim, but instructs courts on what laws to apply in claims arising under
federal civil rights acts. See 42 U.S.C. § 1988; see also Moor v. Cnty. of Alameda,
411 U.S. 693, 703-04 (1973).
The district court did not abuse its discretion in denying Yellen’s motion for
reconsideration because Yellen failed to establish grounds for such relief. See
School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting
forth standard of review and listing factors necessary for reconsideration under
both Fed. R. Civ. P. 59 and 60).
AFFIRMED.
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