Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1990)

Jayson T. CONTWAY, a minor child, By and Through Phyllis R.CONTWAY, his mother and legal custodian; PhyllisR. Contway, personally, Plaintiffs-Appellants,v.Jay Joseph CONTWAY; Dennis M. Harrison; Richard L. Ducote,Defendants-Appellees.

No. 89-35446.

United States Court of Appeals, Ninth Circuit.

Submitted May 7, 1990.* Decided May 14, 1990.

Before FARRIS, PREGERSON and BOOCHEVER, Circuit Judges.


Phyllis Contway, for herself and her minor son, appeal from the district court's granting of defendants' motions to dismiss and motion for summary judgment. We affirm.

Plaintiffs recognize the two essential elements of an action brought under 42 U.S.C. § 1983: 1) that the defendants conduct was under color of state law or constituted state action; and 2) that the defendants deprived the plaintiffs of a right secured by the Constitution or laws of the United States. See Lugar v. Edmondson Oil Co., 457 U.S. 992, 930 (1982); Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983). We do not reach the second element as plaintiffs fail on the first.

While a private party may face liability under section 1983, the circumstances under which this can occur are rather limited. The Supreme Court has said

Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State. These cases reflect a two-part approach to this question of "fair attribution." First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.

Lugar, 457 U.S. 922, 937 (1982).

The determination of whether the private conduct rises to the level of state action is a factual question, to be determined with each case. See Lugar, 457 U.S. at 939. However, there is some guidance to be found in other cases. For instance, in Dennis v. Sparks, 449 U.S. 24 (1980), a state court had enjoined the respondent from producing minerals from oil leases. The injunction was later dissolved by the state appellate court as having been illegally issued. The respondent had brought a section 1983 action against the corporation that had obtained the injunction. The Supreme Court stated that " [o]f course, 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." 449 U.S. at 28. See also Melara v. Kennedy, 541 F.2d 802, 806 (9th Cir. 1976) ("exercise of the choice allowed by state law where the initiative comes from [the party] and not from the State, does not make [the party's] actions in doing so 'state action' for the purposes of the Fourteenth Amendment," quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974)).

In Dennis v. Sparks, there were apparently allegations of bribery, see 449 U.S. at 28, and in Adickes v. Kress & Co., 398 U.S. 144 (1970) (allowing section 1983 claim against private conduct to go forward), there was at least some circumstantial evidence which might allow a jury to find some form of "meeting of the minds" or joint action between the private party and the state official. Plaintiff Contway offers no potential ties between the defendants and a state actor sufficient to cause the private conduct to become state action or action under color of state law. Taken in the light most favorable to the plaintiff, the evidence does not support her claim. Her circumstantial evidence consists of: the acts of the lawyer-psychologist team; their modus operandi in other cases; alleged tampering with Dr. Krajcich's testimony by trying to intimidate him with libel suits; brainwashing the child to falsely accuse the mother of sexual abuse; presentation of testimony to the state court allegedly known to be false; failure of Ducote to withdraw when the father persisted in violating the state court's decrees and orders; the defendants' frivolous attempt to relitigate prior custody issues by improperly trying to impeach the father's original psychologist, expert witness; and the kidnapping of the child, during which time there was admittedly communication between the alleged conspirators. None of this even suggests state action or any ties to the state. Even plaintiff's own description of the conspiracy betrays the weakness of the case: She alleges the conspiracy to be between the three respondents, none of whom are state actors. Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985), upon which plaintiffs rely is distinguishable. Although it, too, involved a custody dispute, the claim that survived summary judgment actually went against county officials, thus making state action a reasonable possibility.

To find state action or color of law in this case would go directly against the Supreme Court's warning issued in Lugar.



The Panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 Circuit Rule 36-3