                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KULEANA, LLC, a Washington limited               No. 09-35811
liability company; HAROLD E.
JOHNSON, a single man,                           D.C. No. 2:09-cv-00114-EFS

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

DIVERSIFIED WOOD RECYCLING,
INC., a Washington corporation,

              Defendant - Appellee.



                  Appeal from the United States District Court
                     for the Eastern District of Washington
              Edward F. Shea, United States District Judge, Presiding

                              Submitted June 8, 2010 **
                                Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The district court did not err in dismissing Kuleana’s complaint for failure to

state a claim. Kuleana failed to show that Diversified’s use of the court system to

foreclose a lien constituted state action. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). The complaint did not allege that the state statute or the state

court procedures were unconstitutional or violated Kuleana’s rights. See

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620–21 (1991); Tulsa

Prof’l Collection Sers. v. Pope, 485 U.S. 478, 491 (1988). Nor are Diversified’s

actions fairly attributable to the state, because there was no joint action between

Diversified and the state court. See Collins v. Womancare, 878 F.2d 1145, 1154

(9th Cir. 1989). The complaint did not allege conspiracy or concerted action. See

Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983). The allegation that a

private party misused state procedures outlined in a state statute is not enough to

establish state action, “even though the procedures themselves required the

involvement of the county clerk” or other state official. Id. at 384 n.9. And,

“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.” Dennis v. Sparks,

449 U.S. 24, 28 (1980).




                                           2
      Because Kuleana failed to establish state action, the complaint failed to

allege a violation of the Fourteenth Amendment and also failed to satisfy the

under-color-of-law requirement of § 1983. See Collins, 878 F.2d at 1148.

      Diversified’s request for attorneys’ fees is denied because Kuleana’s claims

are not “vexatious, frivolous, or brought to harass or embarrass the defendant.”

Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983).

      AFFIRMED.




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