                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 12 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

MARY GONZALES SMITH,                             No. 14-55988

              Plaintiff - Appellant,             D.C. No. 2:09-cv-05198-CW

 v.
                                                 MEMORANDUM*
HERITAGE RANCH OWNERS
ASSOCIATION; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                  Carla M. Woehrle, Magistrate Judge, Presiding

                        Argued and Submitted May 4, 2016
                              Pasadena, California

Before: W. FLETCHER, and GOULD, Circuit Judges, and LEMELLE,** District
Judge.

      Smith appeals the district court’s grant of summary judgment to defendants

on her claim under 42 U.S.C. § 1983. Smith also appeals the jury verdict for

defendants on her claim under 42 U.S.C. § 1982. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
      1.     The district court properly granted summary judgment on Smith’s

claim under 42 U.S.C. § 1983. The record does not show that the defendants were

performing a public function that is “traditionally the exclusive prerogative of the

state,” Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (quoting Jackson v.

Metro. Edison Co., 419 U.S. 345, 353 (1974)), or that there exists “such a ‘close

nexus between the State and the challenged action’ that seemingly private behavior

‘may be fairly treated as that of the State itself,’” Brentwood Academy v. Tenn.

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson , 419

U.S. at 351). The conduct of Heritage Ranch Owners Association and its security

guards was private and not state action.

      2.     The district court did not err by instructing the jury that § 1982

protected against interference with the right to “use” property rather than the right

to “enjoy the benefits” of property. See City of Memphis v. Greene, 451 U.S. 100,

120 (1981) (explaining that § 1982 protects the “right to acquire and use

property”); United States v. Brown, 49 F.3d 1162, 1166 (6th Cir. 1995) (explaining

that § 1982 protects the right “to hold and use real property”); United States v.

Greer, 939 F.2d 1076, 1091 (5th Cir. 1991) (defining “to hold” property as “to

use” property), reinstated in relevant part, 968 F.2d 433 (5th Cir. 1992) (en banc).

There were disputed facts presented at trial that a jury might have credited one way


                                           2
or the other. But proper respect for the role of a jury in our system of law requires

us to defer to the jury’s judgment on the facts once it is properly instructed.

Because we conclude there was no jury instruction error as to the “use” of

property, we must affirm.

      AFFIRMED.




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