Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 792 (9th Cir. 1988)

Julie KIENAST, Plaintiff-Appellant,v.Lana TURNER, Cheryl Crane, Joyce Leroy, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 4, 1987.* Decided March 31, 1988.

Appeal from the United States District Court for the Central District of California; A. Wallace Tashima, District Judge, Presiding.

Before KILKENNY, CANBY and LEAVY, Circuit Judges.


MEMORANDUM** 

Julie Kienast appeals pro se the district court's dismissal of her 42 U.S.C. § 1983 action for lack of subject matter jurisdiction and for failure to comply with the federal rules by filing unintelligible pleadings. We affirm.

Kienast first argues that federal subject matter jurisdiction is established in this case of diversity of citizenship. This court reviews de novo a district court's dismissal for lack of subject matter jurisdiction. Peter Starr Production Co. v. Twin Continental Films, Inc. 783 F.2d 1440, 1442 (9th Cir. 1986). 28 U.S.C. § 1332 confers subject matter jurisdiction on federal courts when each defendant is a citizen of a different state from each plaintiff. Dolch v. United California Bank, 702 F.2d 178, 181 (9th Cir. 1983); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978). Kienast, a resident of California, alleges that the defendants are residents of California and Hawaii. In determining whether diversity jurisdiction applies, citizenship or domicile of the parties, not residency, is the applicable test. Mantin v. Broadcast Music, 244 F.2d 204, 207 (9th Cir. 1957). Even if diverse residency among the parties would be sufficient to invoke Sec. 1332 jurisdiction, the fact that some of the defendants in this case reside in the same state as Kienast defeats the complete diversity requirement of Sec. 1332. Kroger, 437 U.S. at 373-74. The district court correctly found that the appellant has not met her burden of establishing that the district court has jurisdiction under Sec. 1332. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).

Kienast next argues that federal jurisdiction is established under 42 U.S.C. § 1983. She claims that the defendants deprived her of a variety of federally protected rights by invading her privacy, obstructing justice, and subjecting her to political and religious persecution. To make a successful Sec. 1983 claim, however, a plaintiff must establish two essential elements. First plaintiff must allege the deprivation of a federally protected right. Second, the conduct complained of must have been committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). The defendants in this case appear to be private individuals. Kienast has not shown any special circumstances or exceptions suggesting that any of the defendants acted under color of state law. See, e.g., Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 931 & n. 14 (1982) (private citizen liable under Sec. 1983 if alleged deprivation of rights by that individual is fairly attributable to the state); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (private citizen liable under Sec. 1983 if she exercises delegated powers traditionally reserved to the state). The district court correctly dismissed appellant's Sec. 1983 claim.

Finally, appellant contends that the district court erred in dismissing the amended complaint for failure to state a claim because the pleadings were vague, conclusory, and unintelligible. The district court was justified in so characterizing the complaint. The primary reason that the district court dismissed the action, however, was that the court lacked jurisdiction. We have affirmed that ruling, and that is sufficient to support the judgment of dismissal.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3