                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                       JAN 5 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

MARTA DESOTO, Ph.D., a married                   No.    16-17358
woman,
                                                 D.C. No. 2:16-cv-00996-JAT
                  Plaintiff-Appellant,

 v.                                              MEMORANDUM*

GREGORY MCKAY, a married man,

                  Defendant-Appellee.

                     Appeal from the United States District Court
                              for the District of Arizona
                     James A. Teilborg, District Judge, Presiding

                       Argued and Submitted December 7, 2017
                              San Francisco, California

Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,** District
Judge.

          Marta DeSoto appeals the district court’s judgment dismissing her 42

U.S.C. § 1983 claim against Gregory McKay on grounds that McKay is entitled to

qualified immunity. We have jurisdiction under 28 U.S.C. § 1291, and review de


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Steven J. McAuliffe, United States District Judge for
the District of New Hampshire, sitting by designation.
novo the district court’s dismissal, Price v. State of Hawaii, 939 F.2d 702, 706

(9th Cir. 1991). We affirm the dismissal, albeit on different grounds than those

upon which the district court relied. See United States v. McClendon, 713 F.3d

1211, 1218 (9th Cir. 2013) (“Our reasoning is different from that of the district

court, but we may affirm on any basis supported by the record and do so here.”).

      DeSoto, a licensed psychologist, provided the Arizona Department of Child

Safety (“DCS”) with psychological consultation and evaluation services through a

contract between DCS and her company. She claims her constitutionally

protected right of intimate association was violated when, upon learning that she

had married a convicted murderer, the Director of DCS, Gregory McKay,

terminated her independent-contractor relationship. But, her first amended

complaint alleges insufficient facts related to McKay’s personal involvement in

the decision to terminate her employment to plausibly state a claim for relief. See,

e.g., Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff must

allege facts, not simply conclusions, that show that an individual was personally

involved in the deprivation of his civil rights. Liability under § 1983 must be

based on the personal involvement of the defendant”); see also Maxwell v. Cty. of

San Diego, 708 F.3d 1075, 1097 (9th Cir. 2013) (“[T]here is no respondeat

superior liability under § 1983. Rather, a government official may be held liable

only for the official’s own conduct.”).


                                          2                                   16-17358
      DeSoto’s first amended complaint does not, for example, allege that McKay

signed the notice of termination. Nor does it allege that anyone told DeSoto that

her marriage influenced the decision to terminate her contract, or that her marriage

was something McKay considered when he (allegedly) decided to fire her. Nor

does it allege that McKay was even aware that DeSoto was married; it certainly

does not allege that McKay was aware that DeSoto was married to a convicted

murderer.

      The first amended complaint merely alleges: (1) temporal proximity

between DeSoto’s firing and a local news report about her marriage to a convicted

murderer; (2) that someone other than McKay informed DeSoto that her

employment had been terminated and explained that it was done “in the best

interest of the State”; and (3) that DeSoto was “informed and believes” that

McKay participated in, directed, and endorsed her firing (an inference she draws

based upon his official-capacity status as director of DCS and the fact that his

name appears on the letterhead of the department’s formal notice of termination).

Those meager factual allegations are insufficient to “nudg[e]” DeSoto’s claims of

unconstitutional discrimination “across the line from conceivable to plausible.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has


                                         3                                     16-17358
acted unlawfully. Where a complaint pleads facts that are ‘merely consistent

with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’”) (quoting Twombly, 550 U.S. at 557)).

      Because we conclude that DeSoto’s first amended complaint fails to

adequately plead McKay’s personal involvement in the alleged deprivation of

DeSoto’s constitutional rights, we affirm the district court’s judgment of

dismissal. Accordingly, we need not address whether McKay would have been

entitled to qualified immunity had DeSoto pled a viable constitutional claim.

     AFFIRMED.




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