                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2011

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


                            FOR THE NINTH CIRCUIT

ROGELIO HECHAVARRIA,                             No. 10-17242

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00525-CRB

  v.
                                                 MEMORANDUM *
CITY AND COUNTY OF SAN
FRANCISCO; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                     Argued and Submitted November 30, 2011
                             San Francisco, California

Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**

       Rogelio Hechavarria appeals the summary judgment entered by the district

court against him. We affirm. Because the parties are familiar with the history of

the case, we need not recount it here.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
                                            I

      The district court properly granted summary judgment on Hechavarria’s 42

U.S.C. § 1983 claim against the City and County of San Francisco (the City). As

an initial inquiry to any § 1983 claim, we ensure that “two essential elements . . .

are present: (1) whether the conduct complained of was committed by a person

acting under color of state law; and (2) whether this conduct deprived a person of

rights, privileges, or immunities secured by the Constitution or laws of the United

States.” Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds

by Daniels v. Williams, 474 U.S. 327 (1986). In this case, summary judgment was

appropriate because Hechavarria did not show that City Parking Control Officer

Elias Georgopoulos’s assault constituted either an action under color of state law,

or a deprivation of his constitutional rights.

      An individual acts under color of law when he exercises power “possessed

by virtue of state law and made possible only because the wrongdoer is clothed

with the authority of state law.” United States v. Classic, 313 U.S. 299, 326

(1941). Here, Georgopoulos’s physical altercation with Hechavarria over an

alleged extramarital affair does not rise to this level. At the time of the incident,

Georgopoulos did not represent himself as a City employee; rather, he was off-

duty, wearing street clothes, and driving in his own personal vehicle. Indeed



                                            2
Hechavarria failed to produce evidence to refute Georgopoulos’s claims that he did

not use City resources to initiate or carry out the assault. While each of these

factors alone is not dispositive, in sum, they demonstrate that Georgopoulos was

not acting under color of state law.

                                           II

      The district court did not err in denying Hechavarria’s motion to disqualify

the City Attorney from jointly representing the City and Georgopoulos. “As a

general rule, courts do not disqualify an attorney on the grounds of conflict of

interest unless the former client moves for disqualification.” Kasza v. Browner,

133 F.3d 1159, 1171 (9th Cir. 1998). Because Hechavarria was never in an

attorney-client relationship with the City Attorney, the district court properly

concluded that he lacked standing to assert a motion to disqualify.

                                          III

      The district court erred in granting the City’s motion for leave to file certain

material under seal without making findings justifying the sealing order. There is a

strong presumption in favor of access when deciding whether to seal records.

Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). Such a presumption

may be overcome only after a district court considers “the public interest in

understanding the judicial process and whether disclosure of the material could



                                           3
result in improper use of the material for scandalous or libelous purposes . . . .” Id.

(quoting EEOC v. Erection Co., Inc., 900 F.2d 168, 170 (9th Cir. 1990)). Where a

district court conducts such a balancing test, but fails to articulate the rationale

underlying its decision to seal, this court has determined that “meaningful appellate

review is impossible.” Id.; see also Apple Inc. v. Psystar Corp., 658 F.3d 1150,

1162 (9th Cir. 2011).

      The district court did not make findings in support of its determination that

the records be sealed. Ordinarily, we would vacate the order and remand for

reconsideration by the district court. However, based on a review of the entire

record, we conclude that the error was harmless in this case because (1) the court

was implementing a sealing order entered in a separate case pertaining to the

documents by a different judge; (2) there remains an appropriate and available

remedy to unseal the documents in the antecedent district court proceeding; and (3)

none of the material would have altered the outcome of this case.

      As to the briefs and documents filed under seal in this Court, we refer the

issue to the Appellate Commissioner for his determination as to what should

remain sealed pursuant to the original antecedent sealing order and what should be

unsealed (or ordered filed in redacted form) because it pertains solely to issues

involved in this appeal.

      AFFIRMED.

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