Pamela Owen v. Chuck Atkins

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAMELA S. OWEN, No. 16-35398

Plaintiff-Appellant, D.C. No. 3:15-cv-05375-BHS

v. MEMORANDUM* CHUCK E. ATKINS, in his official capacity as Clark County Sheriff; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Pamela S. Owen appeals pro se from the district court’s judgment in her 42

U.S.C. § 1983 action alleging federal and state law claims arising out of

foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012)

* 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). (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 dismissed Owen’s § 1983 claims against Federal

Home Loan Mortgage Corporation and MTC Financial, Inc. because Owen failed

to allege facts sufficient to show that these defendants acted under color of state

law. See West v. Atkins, 487 U.S. 42, 48 (1988) (to state a claim under § 1983 a

plaintiff must show that the alleged deprivation was committed by a person acting

under color of state law); see also Apao v. Bank of N.Y., 324 F.3d 1091, 1094-

95 (9th Cir. 2003) (non-judicial foreclosure was not state action and therefore did

not implicate due process); Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002)

(a private individual acts under color of state law only when there is significant

state involvement in the action).

The district court properly granted summary judgment on Owen’s § 1983

due process claim against Atkins because Owen failed to raise a genuine dispute of

material fact as to whether Atkins violated her constitutional or statutory rights.

See West, 487 U.S. at 48 (“To state a claim under § 1983, a plaintiff must allege

the violation of a right secured by the Constitution and laws of the United States,

and must show that the alleged deprivation was committed by a person acting

under color of state law.”).

2 16-35398  The district court did not abuse its discretion by dismissing Owen’s

Washington Consumer Protection Act (“CPA”) claim with prejudice after Owen

failed to comply with the district court’s order to file an amended complaint

despite being warned of the consequence for failing to file it and receiving an

extension to do so. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

1992) (setting forth standard of review and listing factors to be considered in

dismissing a case as a sanction for failure to comply with a court order requiring

submission of an amended complaint). Because we affirm the district court’s

dismissal of Owen’s CPA claim as a sanction for failure to comply with a court

order, we do not consider the district court’s interlocutory orders regarding Owen’s

CPA claim. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996)

(“[I]nterlocutory orders, generally appealable after a final judgment, are not

appealable after a dismissal for failure to prosecute[.]”).

We reject as meritless Owen’s contention that the district court was required

to determine whether qualified immunity applied.

We do not consider arguments or facts that were not presented to the district

court, or matters not specifically and distinctly raised and argued in the opening

brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

AFFIRMED.

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