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United States Court of Appeals, Ninth Circuit.

Robert J. KULICK, dba Leisure Village News, Plaintiff-Appellant, v. LEISURE VILLAGE ASSOCIATION, INC., a Senior Retirement Community Homeowner Association, official capacity; et al., Defendants-Appellees.

No. 20-56059

Decided: June 29, 2021

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges. Robert J. Kulick, Pro Se


Robert J. Kulick appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging First Amendment violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012). We affirm.

The district court properly dismissed Kulick's action because Kulick failed to allege facts sufficient to establish that any defendant was acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (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.”); Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (identifying circumstances under which a private party may be said to be acting under color of state law); see also Polk County v. Dodson, 454 U.S. 312, 317-19, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (a private attorney or a public defender does not act under color of state law within the meaning of § 1983); Hudgens v. NLRB, 424 U.S. 507, 519, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (requiring a private party to perform “the full spectrum of municipal powers and [stand] in the shoes of the State” to be considered a state actor under the public function test).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Kulick's motion for this court to review arguments he made in three prior cases (Docket Entry No. 7) is granted.


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