Jeffrey Pataky v. City of Phoenix

FILED
NOT FOR PUBLICATION APR 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEFFREY MICHAEL PATAKY, an No. 09-17674
individual,
D.C. No. 2:09-cv-00534-HRH
Plaintiff - Appellant,
v. MEMORANDUM *
CITY OF PHOENIX, a political
subdivision of the State of Arizona;
PHILLIP B. GORDON and JANE DOE
GORDON, husband and wife; FRANK
FAIRBANKS and JANE DOE
FAIRBANKS, husband and wife; JACK
HARRIS and JANE DOE HARRIS,
husband and wife; ANTHONY BROKAW
and JANE DOE BROKAW, husband and
wife; GEORGE J. RICHARDS and JANE
DOE RICHARDS, husband and wife;
BRANDON HUNTLEY and JANE DOE
HUNTLEY, husband and wife; JOHN
DOE RENTERIA and SANDRA
RENTERIA, husband and wife; LOUIE
TOVAR and JANE DOE TOVAR,
husband and wife; GEORGE FULTON
and JANE DOE FULTON, husband and
wife,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
H. Russel Holland, Senior District Judge, Presiding
Submitted April 13, 2011 **
San Francisco, California
Before: FERNANDEZ and RAWLINSON, Circuit Judges, and WELLS, Senior
District Judge.***
Jeffrey Michael Pataky appeals the district court’s dismissal with prejudice
of his Section 1983 malicious prosecution and state law gross negligence claims
against defendant-appellee Detective Anthony Brokaw. Pataky contends that the
district court erred when it held that Det. Brokaw is entitled to absolute immunity.
The procedural posture of this case in the district court prevents us from
taking jurisdiction, because some of Pataky’s claims were dismissed without
prejudice and with leave to amend. No final judgment was entered. Pataky neither
amended nor noticed the district court of his intention not to amend. Nor did he
seek a Federal Rule of Civil Procedure 54(b) certification. Instead, he filed this
appeal.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lesley Wells, Senior District Judge for the Northern
District of Ohio, sitting by designation.
2
We have held that “a plaintiff, who has been given leave to amend, may not
file a notice of appeal simply because he does not choose to file an amended
complaint. A further district court determination must be obtained.” WMX
Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
“Unless a plaintiff files in writing a notice of intent not to file an amended
complaint, [a dismissal order with leave to amend] is not an appealable final
decision.” Lopez v. City of Needles, 95 F.3d 20, 22 (9th Cir. 1996). The fact that
some of Pataky’s claims were dismissed with prejudice and without leave to amend
is of no consequence, because “leave to amend was granted as to others, and there
was no Federal Rule of Civil Procedure 54(b) certification.” WMX Technologies,
104 F.3d at 1136 n. 1.
Therefore, the district court’s dismissal was not a final decision for purposes
of 28 U.S.C. § 1291, and we are without jurisdiction.
APPEAL DISMISSED.
3