Azer

MEMORANDUM *

Doctor’s Medical Laboratory’s (“DML”) claim based on regulatory provisions alone is not cognizable under 42 U.S.C. § 1983 . Save Our Valley v. Sound Transit, 335 F.3d 932, 935-36 (9th Cir.2003); cf. Alexander v. Sandoval, 532 U.S. 275, 291 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (2001) (“Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”). Neither is its claim based on 42 U.S.C. § 1396a(a). See San Lazaro Ass’n v. Connell, 286 F.3d 1088, 1099 (9th Cir.2002). And because DML did not “specifically and distinctly argue[ ]” its Fourth Amendment claim on appeal, we do not address it. Miller v. Fairchild Indus., Inc., 797 F.2d 727 , 738 (9th Cir.1986).

As for DML’s due process claim, because no statute specifies the “precise action” the appellees “must take in each instance,” a qualified immunity inquiry is appropriate. Davis v. Scherer, 468 U.S. 183 , 196 n. 14, 104 S.Ct. 3012 , 82 L.Ed.2d 139 (1984). Even if the appellees’ initial action in 1997 were unconstitutional, precedent indicates that California courts then might have been “inclined to hold that the delay in…