                                                                                FILED
                                NOT FOR PUBLICATION                              NOV 12 2010

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




                                 FOR THE NINTH CIRCUIT



     MARY C. KERNER,                                  No. 09-16970

                  Plaintiff-Appellant,                D.C. No. 3:08-cv-04528-EDL

       v.
                                                      MEMORANDUM *
     JORGE MENDEZ; PATRICK PHILLIPS;
     UNITED AIRLINES (UAL); KEN
     SMART; UNITED AIR LINES, INC.,

                  Defendants-Appellees.




                         Appeal from the United States District Court
                            for the Northern District of California
                      Elizabeth D. Laporte, Magistrate Judge, Presiding

                               Submitted November 2, 2010 **
                                 San Francisco, California

     Before: KOZINSKI, Chief Judge, RYMER, Circuit Judge, and TRAGER, ***



             *
29                This disposition is not appropriate for publication and is not precedent
30   except as provided by Ninth Circuit Rule 36-3.
            **
31               The panel unanimously finds this case suitable for decision without
32   oral argument. See Fed. R. App. P. 34(a)(2).
            ***
33                The Honorable David G. Trager, Senior United States District Judge
34   for the Eastern District of New York, sitting by designation.
District Judge.

      Plaintiff Mary C. Kerner ("plaintiff") appeals from an order issued by the

District Court for the Northern District of California dismissing her claim under 42

U.S.C. § 1983 ("Section 1983") against defendants United Airlines and three

United Airlines employees, including Jorge Mendez (collectively, "defendants").

Given the parties' familiarity with the facts, we do not recount them here. This

Court has jurisdiction under 28 U.S.C. § 1291. For the following reasons, the

decision of the district court is affirmed.

      A district court's decision to dismiss a Section 1983 action pursuant to Rule

12(b)(6) is reviewed de novo. Watson v. Weeks, 436 F.3d 1152, 1157 (9th Cir.

2006). A plaintiff asserting a Section 1983 claim must allege the deprivation of a

constitutional right by a defendant acting under color of state law. Franklin v. Fox,

312 F.3d 423, 444 (9th Cir. 2002).

      Mendez was not acting under color of state law. See Collins v. Womancare,

878 F.2d 1145, 1150–56 (9th Cir. 1989); Ibrahim v. Dep’t of Homeland Sec., 538

F.3d 1250, 1257–58 (9th Cir. 2008). Kerner has not alleged facts showing that the

state may "fairly be blamed" for the defendants' conduct. Lugar v. Edmondson Oil

Co., 457 U.S. 922, 936 (1982).

      Because the district court correctly concluded that the alleged deprivation


                                              2
underlying Plaintiff's Section 1983 claim was not under "color of state law," the

district court's decision is affirmed.

       AFFIRMED.




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