Barbara Fournier v. Terry Cuddeford

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                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 19 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


BARBARA FOURNIER and BRUCE                       No. 12-36062
JENKINS,
                                                 D.C. No. 3:11-cv-00343-AC
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

TERRY CUDDEFORD,

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                              Submitted May 13, 2014**
                                  Portland, Oregon

Before:        GOODWIN, IKUTA, and N.R. SMITH, Circuit Judges.

       Barbara Fournier and Bruce Jenkins (collectively, “Plaintiffs”) appeal the

district court’s summary judgment in their 42 U.S.C. § 1983 action. Plaintiffs

allege that Clackamas County Sheriff’s Deputy Terry Cuddeford violated their

          *
             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).
Fourth and Fourteenth Amendment rights when he responded to their 911 call

reporting that they were being subjected to an unlawful eviction. We have

jurisdiction under 28 U.S.C. § 1291. On de novo review, Morrison v. Hall, 261

F.3d 896, 900 (9th Cir. 2001), we affirm.

      Plaintiffs failed to raise a genuine dispute of material fact as to whether

Cuddeford’s conduct constituted state action because Cuddeford was summoned to

a scene not of his making after the confrontation had already occurred. See Meyers

v. Redwood City, 400 F.3d 765, 771-72 (9th Cir. 2005) (holding that police officers

who were summoned to a scene not of their making, where the confrontation was

not conducted under their purview, “were not so enmeshed in effectuating the

repossession that the deprivation and seizure . . . is attributable to the state”); see

also Howerton v. Gabica, 708 F.2d 380, 383-84 (9th Cir. 1983) (relying on

repossession cases to set out the legal framework for state action in a case alleging

unlawful eviction).

      AFFIRMED.




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