John Webber, Jr. v. Jeremy Griffin

FILED
NOT FOR PUBLICATION OCT 29 2010

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

FOR THE NINTH CIRCUIT

JOHN CARL WEBBER, Jr., No. 09-35558

Plaintiff - Appellant, D.C. No. 3:07-cv-01675-KI

v.
MEMORANDUM *
JEREMY GRIFFIN, in his official and
individual capacity; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding

Submitted October 19, 2010 **

Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

John Carl Webber, Jr. appeals pro se from the district court’s order

dismissing with prejudice his state and federal law claims against certain

defendants and its summary judgment on these claims against the remaining

*
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).
defendants. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal of claims and its grant of summary judgment, Barnett v.

Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). We affirm.

The district court properly dismissed Webber’s 42 U.S.C. § 1983 claims

against certain private parties (the “Individual Defendants”) for alleged violations

of the Fourth, Fifth, Sixth, Seventh, and Fourteenth Amendments because they

were not acting under color of state law. See Price v. State of Hawaii, 939 F.2d

702, 707-08 (9th Cir. 1991) (private parties do not generally act under color of

state law for § 1983 purposes); Ivey v. Bd. of Regents of the Univ. of Alaska, 673

F.2d 266, 268 (9th Cir. 1982) (“Vague and conclusory allegations of official

participation in civil rights violations are not sufficient” to withstand dismissal).

The district court properly dismissed Webber’s claim for alleged violations

of the Racketeer Influenced and Corrupt Organizations Act against the Individual

Defendants because they were not alleged to participate in a pattern of racketeering

activity. See 18 U.S.C. § 1961(1) (defining racketeering activity).

The district court properly dismissed Webber’s remaining state law claims

against the Individual Defendants because it had discretion not to exercise

supplemental jurisdiction over them after dismissing all of Webber’s federal law

claims against the Individual Defendants. See 28 U.S.C. § 1367(c)(3); see also

2 09-35558
Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (per curiam)

(court may affirm on different ground than that relied upon by district court).

The district court also properly dismissed Webber’s state and federal law

claims against defendants affiliated with the Oregon Water Resources Department

(the “State Defendants”) on claim preclusion grounds because there was privity

between the State Defendants and the party against whom Webber previously

litigated—or could have joined—claims arising from the same factual transaction

in a prior administrative proceeding. See Miller v. County of Santa Cruz, 39 F.3d

1030, 1033 (9th Cir. 1994) (federal courts give preclusive effect to a state

administrative law proceeding that “meets the state’s own criteria necessary to

require a court of that state to give preclusive effect to the state agency’s

decisions”); see also D’Amico ex rel. Tracey v. Ellinwood, 149 P.3d 277, 281 (Or.

2006) (“Privity includes . . . those whose interests are represented by a party to the

action[.]”); Drews v. EBI Cos., 795 P.2d 531, 535 (Or. 1990) (setting forth

elements of Oregon claim preclusion law).

Webber’s remaining contentions are unpersuasive.

AFFIRMED.

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