NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 13 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIBERIU S. KISS, No. 23-35004

Plaintiff-Appellant, D.C. No. 3:22-cv-00281-SB

v.

MEMORANDUM*

BEST BUY STORES, Limited Partnership;

JOHN DOE,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Stacie F. Beckerman, Magistrate Judge, Presiding

Argued and Submitted December 5, 2023 Portland, Oregon

Before: NGUYEN and MILLER, Circuit Judges, and MONTALVO,** District Judge.

Tiberiu Kiss appeals from the district court’s dismissal of his complaint

alleging that Defendants Best Buy and John Doe violated his constitutional rights by

requiring him to wear a mask before entering a Best Buy store. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frank Montalvo, United States District Judge for the Western District of Texas, sitting by designation. under 28 U.S.C. § 1291. We review de novo dismissals for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). Steckman v. Hart Brewing, Inc.,

143 F.3d 1293, 1295 (9th Cir. 1998). We affirm.

1. Kiss’s two claims brought pursuant to 42 U.S.C. § 1983 fail because

Defendants are private actors and Kiss does not allege any facts that establish state

action. A private actor may be subject to § 1983 liability if the plaintiff can show

that the actor’s conduct was “fairly attributable to the State.” Lugar v. Edmondson

Oil Co., 457 U.S. 922, 937 (1982). Fair attribution has two components: “First, the

deprivation must be caused by the exercise of some right or privilege created by the

State or by a rule of conduct imposed by the state or by a person for whom the State

is responsible. . . . Second, the party charged with the deprivation must be a person

who may fairly be said to be a state actor.” Id. Kiss’s claims fail on the second

prong because Defendants cannot be fairly characterized as state actors.

There are four tests for determining whether a private individual’s actions

amount to state action: (1) the public function test; (2) the joint action test; (3) the

state compulsion test; and (4) the governmental nexus test. Franklin v. Fox, 312

F.3d 423, 445 (9th Cir. 2002). 1 On appeal, Kiss relies on the state compulsion test,

1 The district court applied each of the four tests and found that none establish state action here. On appeal, Kiss only argues the state compulsion theory. He has therefore waived any arguments that the other three tests apply. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments not raised by a party in its opening brief are deemed waived.”).

2 which “considers whether the coercive influence or significant encouragement of

the state effectively converts a private action into a government action.” Kirtley v.

Rainey, 326 F.3d 1088, 1094 (9th Cir. 2003) (quotation marks omitted). According

to Kiss, there is state action here because the state of Oregon made Best Buy the

“enforcer of the [mask mandate]” in Best Buy stores and imposed a civil penalty that

effectively coerces Defendants to require face masks. But “compliance with

generally applicable laws” is not “sufficient to convert private conduct into state

action.” Heineke v. Santa Clara Univ., 965 F.3d 1009, 1013 (9th Cir. 2020). And

the fact that Best Buy is subject to penalties “is also insufficient to convert private

action into that of the state.” Id. at 1014 (citing Blum v. Yaretsky, 457 U.S. 991,

1010 (1982) (“[P]enalties imposed for violating the regulations add nothing to

respondents’ claim of state action.”)).

Kiss’s reliance on Mathis v. Pacific Gas & Electric Co. to support his theory

of state action is misplaced. In Mathis, a nuclear power plant subject to regulation

by the Nuclear Regulatory Commission (NRC) denied an employee access to its

facilities because it suspected the employee of drug use. 891 F.2d 1429 (9th Cir.

1989). We recognized that a Bivens action could lie against the private power plant

if the employee proved the existence of an informal NRC policy governing the

plant’s conduct. Id. at 1433–34. We allowed the claims to proceed past the pleading

stage because according to the allegations, “the NRC and the private defendant had

3 agreed to a division of labor in which the private defendant would take responsibility

for preventing drug use at its facilities, in exchange for the NRC’s not implementing

formal regulations on the subject.” Sutton v. Providence St. Joseph Med. Ctr., 192

F.3d 826, 842 (9th Cir. 1999) (citing Mathis, 891 F.2d at 1433–34). There are no

equivalent allegations here. Kiss does not allege the existence of any “conspiratorial

agreement,” “official cooperation with the private entity to achieve the private

entity’s goal,” or “enforcement and ratification of the private entity’s chosen action.”

Id. at 842. The district court therefore properly dismissed Kiss’s § 1983 claims for

lack of state action.

2. Kiss’s claim brought pursuant to the Americans with Disabilities Act is

moot. Kiss’s complaint seeks an injunction prohibiting Best Buy “from abiding by

any future activation of an indoor mask mandate.” But the Oregon mask mandated

was rescinded in March 2022, after Kiss filed suit. At that point, there was nothing

left for the district court to enjoin.

Kiss argues that his ADA claim is not moot because although the mask

mandate is currently suspended, the rule is “still on the books” and “[s]tate officials

have the ability to revoke the suspension.” But we recently rejected a similar

argument concerning a rescinded COVID-related order, finding that the “actual

controversy ha[d] evaporated.” Brach v. Newsom, 38 F.4th 6, 11 (9th Cir. 2022). In

Brach, the plaintiff’s speculative claim that “an unexpected reversal in the public

4 health situation could lead the Governor to once again close schools” was

insufficient to show the existence of a live controversy. Id. at 14. That Brach

involved an executive order whereas this case involves “promulgated rule that is still

on the books” is a distinction without a difference—in Brach, we “acknowledge[d]

that the Governor’s continuing authority to close schools [was] a consideration in

our analysis . . . but it [was] by no means dispositive.” Id. Here, Kiss offers nothing

more than the speculative possibility that the mask mandate could be reimplemented

at some point in the future. And as we previously recognized, the “mere power to

reenact a challenged [policy] is not a sufficient basis on which a court can conclude

that a reasonable expectation of recurrence exists.” Id. (quoting Larsen v. U.S. Navy,

525 F.3d 1, 4 (D.C. Cir. 2008)). Accordingly, Kiss’s ADA claim was properly

dismissed as moot.

3. Kiss also asserts three state law claims, including a violation of the

Oregon disability discrimination statute, assault, and battery. The district court,

having properly dismissed each of Kiss’s federal claims, was within its discretion to

decline to exercise supplemental jurisdiction over these claims. 28 U.S.C.

§ 1367(c)(3).

AFFIRMED.

5