Al Savin v. Gloria Savin ( 2018 )

FILED
NOT FOR PUBLICATION
APR 03 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AL SAVIN, an Individual and Partial No. 15-55993
Beneficiary of The Flora Peralta
Irrevocable Family Trust; et al., D.C. No.
5:14-cv-01180-SJO-E
Plaintiffs-Appellants,
v. MEMORANDUM*
GLORIA SAVIN, AKA Gloria De La
Cruz, an individual; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted March 30, 2018**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Al Savin, Lucia Savin, and William Peralta appeal pro se from the district
court’s judgment on the pleadings and summary judgment in their 42 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1983 action alleging federal and state law violations arising from marital
dissolution proceedings between Al Savin and Gloria Savin. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. MacDonald v. Grace Church
Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006) (judgment on the pleadings);
Morrison v. Hall, 261 F.3d 896, 900 (9th Cir. 2001) (summary judgment). We
affirm.
The district court properly granted judgment on the pleadings for Gloria
Savin and her attorney, Evan Ginsburg, because plaintiffs failed plausibly to allege
that either defendant acted under color of law for purposes of § 1983. See Naoko
Ohno v. Yuko Yasuma, 723 F.3d 984, 985 (9th Cir. 2013) (an action “between
private parties does not involve state action simply because the court in which the
case is pursued is an organ of the state or federal government”); Szijarto v.
Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (per curiam) (“[A]n attorney, whether
retained or appointed, does not act ‘under color of’ state law.”).
The district court properly granted summary judgment on plaintiffs’ claim
alleging municipal liability because plaintiffs failed to provide evidence that any
Riverside County employee’s actions “implement[ed] or execute[d] a policy
statement, ordinance, regulation, or decision officially adopted and promulgated”
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by the county, or that any deprivation was inflicted “pursuant to governmental
‘custom.’” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).
The district court properly granted summary judgment on plaintiffs’ due
process claim against Maichi Ngoc Nguyen because plaintiffs failed to provide
evidence of conduct by Nguyen that would “shock the conscience,” Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 846, 849 (1998) (requirements of substantive
due process), or that plaintiffs were denied adequate post-deprivation remedies for
any of the alleged property deprivations, see Hudson v. Palmer, 468 U.S. 517, 536,
539 (1984) (procedural due process claim requires that “the claimant must either
avail himself of the remedies guaranteed by state law or prove that the available
remedies are inadequate”).
The district court did not abuse its discretion in denying plaintiffs’ motion
for default judgment because plaintiffs did not seek entry of default and defendants
did not “fail to plead or otherwise defend.” Fed. R. Civ. P. 55(a); see Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (standard of review).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over the remaining state law claims. See Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which
all federal-law claims are eliminated before trial, the balance of factors to be
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considered . . . will point toward declining to exercise jurisdiction over the
remaining state-law claims.”); Tritchler v. County of Lake, 358 F.3d 1150, 1153
(9th Cir. 2004) (standard of review).
We reject plaintiffs’ contention that the magistrate judge’s role in the case
constitutes error. See 28 U.S.C. § 636(b)(1)(B).
Appellees’ motion to strike portions of the excerpts of record and reply brief
(Dkt. No. 26) is granted.
Appellees’ request for judicial notice (Dkt. No. 31) is denied.
Appellants’ request for judicial notice (Dkt. No. 35) is denied.
Appellants’ motion to strike a letter from Ginsburg (Dkt. No. 37) is denied.
AFFIRMED.
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