Edmund M. Abordo v. Mobi Pcs;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDMUND M. ABORDO,
Plaintiff-Appellant,
v.
MOBI PCS; et al.,
Defendants-Appellees.
No. 16-15466
D.C. No. 1:15-cv-00279-ACK-
BMK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Edmund M. Abordo appeals pro se from the district court’s judgment in his
42 U.S.C. § 1983 action alleging unlawful surveillance and disclosure of his
electronic communications. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Doe v. United States, 419 F.3d 1058, 1063 (9th Cir. 2005)
* 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).
FILED
MAR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(motion for judgment on the pleadings); Lacey v. Maricopa County, 693 F.3d 896,
911 (9th Cir. 2012) (dismissal for failure to state a claim); Guatay Christian
Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011) (cross-
motions for summary judgment). We affirm.
The district court properly denied Abordo’s motion for judgment on the
pleadings, denied Abordo’s motion for summary judgment, and granted
defendants’ cross-motion for summary judgment with respect to Abordo’s claims
under 42 U.S.C. § 1983 because Abordo failed to raise a genuine dispute of
material fact as to whether any defendant was acting under the color of state law in
responding to subpoenas issued by the State of Hawaii’s Department of Commerce
and Consumer Affairs. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991)
(private parties do not generally act under color of state law for § 1983 purposes);
see also Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36, 841 (9th
Cir. 1999) (setting forth four factor test for determining when private conduct
amounts to governmental action and explaining that “governmental compulsion in
the form of a generally applicable law, without more” is insufficient to deem a
private entity a state actor).
The district court properly determined that Abordo lacks standing to bring a
claim under Hawaii Revised Statute § 711-1111. See Linda R.S. v. Richard D.,
410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest

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in the prosecution or nonprosecution of another.”).
The district court properly dismissed Abordo’s claim under 18 U.S.C.
§ 2511 (“Wiretap Act”) because Abordo failed to allege facts sufficient to state a
plausible claim for relief under the Wiretap Act. See Konop v. Hawaiian Airlines,
Inc., 302 F.3d 868, 876-79 (9th Cir. 2002) (the Wiretap Act applies only to
acquisition of electronic communications contemporaneous with transmission); see
also Theofel v. Farey-Jones, 359 F.3d 1066, 1077-78 (9th Cir. 2004) (the Wiretap
Act does not apply to disclosure of electronic communications held in electronic
storage).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Abordo’s requests for judicial notice, set forth in his reply brief, are denied.
AFFIRMED.

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