Duncan

ORDER

The memorandum disposition filed on March 27, 2007, 2007 WL 983301 , is amended as reflected in the amended disposition filed along with this order. The petitions for rehearing and rehearing en banc are otherwise DENIED. See Fed. R.App. P. 35; Fed. R.App. P. 40. No further petitions for rehearing or rehearing en banc will be entertained.

AMENDED MEMORANDUM **

1. The boys who did the videotaping did not do so based on power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 , 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988) (internal quotations omitted). Only two of the three boys were ever employed by the school, and their videotaping started long before they worked at several weekend tournaments. Because the boys did not commit these misdeeds “within [their] scope of employment or under color of state law, then [they] act[ed] as ... private citizen[s].” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir.1996).

2. “[A] State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago…