Mary C. Kerner v. Jorge Mendez; Patrick Phillips; United Airlines (ual); Ken Smart; United Air Lines, Inc.

29 This disposition is not appropriate for publication and is not precedent*
30 except as provided by Ninth Circuit Rule 36-3.
31 The panel unanimously finds this case suitable for decision without**
32 oral argument. See Fed. R. App. P. 34(a)(2).
33 The Honorable David G. Trager, Senior United States District Judge***
34 for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY C. KERNER,
Plaintiff-Appellant,
v.
JORGE MENDEZ; PATRICK PHILLIPS;
UNITED AIRLINES (UAL); KEN
SMART; UNITED AIR LINES, INC.,
Defendants-Appellees.
No. 09-16970
D.C. No. 3:08-cv-04528-EDL
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Submitted November 2, 2010**
San Francisco, California
Before: KOZINSKI, Chief Judge, RYMER, Circuit Judge, and TRAGER, ***
FILED
NOV 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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District Judge.
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 (1982).
Because the district court correctly concluded that the alleged deprivation

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underlying Plaintiff's Section 1983 claim was not under "color of state law," the
district court's decision is affirmed.
AFFIRMED.

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