Keenan v. First California Bank

276 F. App'x 637

Opinion

MEMORANDUM

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Robert B. Keenan appeals the district court’s order dismissing his action alleging claims under 42 U.S.C. § 1983 for violations of 42 U.S.C. § 407(a), as well as state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), Arrington v. Wong, 237 F.3d 1066, 1069 (9th Cir.2001), and we reverse.

The district court erred in dismissing the complaint with regard to Keenan’s § 1983 claims because he sufficiently alleged that First California Bank deprived him of his rights under 42 U.S.C. § 407(a), and acted under the color of state law by surrendering Social Security funds in his bank account at the explicit direction of the California Franchise Tax Board. See Franklin v. Terr, 201 F.3d 1098, 1100 (9th Cir.2000) (explaining that a § 1983 plaintiff must allege deprivation of a right under federal law and that defendant acted under color or state authority); Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1295 (9th Cm.1987) (concluding that where the state commanded a phone company to take specific action with regard to a customer it “converted its otherwise private conduct into state action for purposes of § 1983”).

Contrary to First California Bank’s contentions, California Revenue and Taxation Code § 18674(a) does not provide immunity from Keenan’s § 1983 claims. See Rimes v. Stone, 84 F.3d 1121, 1126-27 (9th Cir.1996) (“the existence of § 1983 immunities is a matter of federal law” and “[cjonduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law”).

Because it is unclear whether the district court premised dismissal of the state law claims on dismissal of the § 1983 claims, we reinstate the state claims and remand to the district court for further proceedings.

REVERSED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.