Peng v. Mei Chin Penghu
| Decision Date | 10 July 2003 |
| Docket Number | No. 02-55852.,02-55852. |
| Citation | 335 F.3d 970 |
| Parties | Hsien I. PENG, Plaintiff-Appellant, v. MEI CHIN PENGHU; Jonathan Hu; S. Gage, Los Angeles County Deputy, Badge No. 406857, sued individually, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank A. Weiser, Law Offices of Frank A. Weiser, Los Angeles, CA, for the plaintiff-appellant.
Max C. Chiang, Law Offices of Max C. Chiang, Cerritos, CA, and Toni Rae Bruno, Dwyer, Daly, Brotzen & Bruno, Los Angeles, CA, for the defendants-appellees.
Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding. D.C. No. CV-00-08871-GAF.
Before: MARY M. SCHROEDER, Chief Judge, SUSAN P. GRABER, Circuit Judge, and JAMES K. SINGLETON, District Judge.*
SINGLETON District Judge:
Hsien I. Peng appeals the district court's dismissal of his civil rights action brought pursuant to 42 U.S.C. § 1983.1
Peng was arrested for robbery by Los Angeles County Deputy Scott Gage, based on allegations that Peng forcibly took land title documents from his sister, Mei Chin Peng Hu ("Mei Hu"). Peng was released when the district attorney's office determined that there was insufficient evidence to press charges. Peng claims that his Fourth Amendment right to be free from an unlawful seizure was violated because Gage lacked probable cause to arrest him.2 Peng alleges that his sister, Mei Hu, and her son, Jonathan Hu, also violated his Fourth Amendment right to be free of unlawful seizure because their allegedly false statements to Gage caused Peng's arrest. Thus, argues Peng, they were essentially state actors for the purposes of § 1983. Peng appeals the two district court orders that dismissed his claims. The first order granted Deputy Gage qualified immunity from suit. The second order held that the court did not have subject matter jurisdiction over the remaining claims against Mei Hu and Jonathan Hu because they were not state actors within the meaning of § 1983. The district court also declined to exercise supplemental jurisdiction over the state law claim against Mei Hu and Jonathan Hu alleging false arrest and imprisonment. Thus, the district court dismissed all of Peng's claims. We affirm.
The order granting Gage qualified immunity was a summary judgment made pursuant to Federal Rule of Civil Procedure 56. The court dismissed the claims against Mei Hu and Jonathan Hu for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). A grant of summary judgment is reviewed de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002). Dismissal for lack of subject matter jurisdiction is also reviewed de novo. McGraw v. United States, 281 F.3d 997, 1001 (9th Cir.) amended by 298 F.3d 754 (9th Cir.2002).
During the evening of May 2, 2000, Deputy Gage responded to a "family disturbance" dispatch. It appears that the disturbance arose out of a family meeting held to resolve a dispute over land title documents that Mei Hu possessed, but which her father, Chieh Tsai Peng ("C. Peng"), asserted the right to possess. Mei Hu's brother Peng was present at the meeting to mediate, and the meeting took place at the house of Mei Hu and Peng's sister. At some point, Peng obtained the documents from Mei Hu. Whether he used force to obtain them is disputed.
Peng asserts in his complaint that Mei Hu gave him the documents, and when the dispute could not be resolved, Mei Hu demanded their return but Peng refused.3 It is undisputed that, after obtaining the documents, Peng left the house and came back twenty minutes later without the documents and refused to return them to Mei Hu. Mei Hu's son, Jonathan Hu, was called and told that his uncle Peng had become violent. Consequently, Jonathan Hu went to the house where the altercation had occurred and instructed his sister to call the police.
Deputy Gage responded to the call. While on the scene, Gage interviewed Mei Hu regarding the incident. Because Mei Hu only speaks Mandarin Chinese, Jonathan Hu translated for Gage. It is undisputed, as noted by the district court, that Mei Hu, via Jonathan Hu, told Gage the following:
• Mei Hu came to the location to meet Peng about a land dispute.
• Peng approached Mei Hu and asked if he could have the documents she possessed so he could photocopy them.
• When Mei Hu refused to hand Peng the documents, he reached out and grabbed the documents from Mei Hu's right hand and refused to let go, engaging in a tug of war with Mei Hu over the documents.
• Peng then raised his right fist as though he was going to strike Mei Hu in the face.
• Fearing for her safety, Mei Hu released the documents.
• After taking the documents from Mei Hu, Peng left the residence and returned approximately twenty minutes later.
• Once he returned, Peng refused to give the documents back to Mei Hu.
• Shortly thereafter, the police were called. After taking Mei Hu's statement, Gage then interviewed two witnesses who were present during the altercation. The identity and statements of these two witnesses are disputed. In his police report, Gage lists the witnesses as two of Peng's brothers. By contrast, Jonathan Hu asserts that the two interviewed were his grandfather, C. Peng, and his uncle, Mr. Chi. It is undisputed, however, that neither person interviewed spoke English and that Gage had to rely on Jonathan Hu's interpretation to take their statements. According to Gage, the two witnesses interviewed stated that Peng grabbed the documents from Mei Hu, but they could not recall whether he raised a fist at her. Jonathan Hu asserts that the two witnesses did see Peng raise a fist at Mei Hu and testified that he translated these statements to Gage. C. Peng has submitted a declaration that neither he nor Mr. Chi ever said that Peng grabbed the documents or raised a fist. But, as the district court noted, it is uncontroverted that Jonathan Hu told Gage that the witnesses saw Peng grab the documents from Mei Hu.
After interviewing Mei Hu and the two witnesses, Gage arrested Peng for robbery. Charges were never brought by the district attorney's office because it was determined that there was insufficient evidence. Peng subsequently brought this suit pursuant to § 1983 against Gage, Mei Hu, and Jonathan Hu. Gage moved for summary judgment, asserting that he is protected from suit by qualified immunity. The court held a hearing and then granted Gage's motion for summary judgment.
Following Gage's dismissal from the action, the district court issued an order to show cause whether it had subject matter jurisdiction over the § 1983 claim against Mei Hu and Jonathan Hu. Following briefing by the parties, the court determined that it lacked subject matter jurisdiction because Mei Hu and Jonathan Hu were not state actors. The court also declined to exercise supplemental jurisdiction over the state law claim against the Hus alleging false arrest and false imprisonment, and the entire action was thus dismissed. See 28 U.S.C. § 1367(b) ().
Peng contends that the district court erred when it dismissed his § 1983 claim against Gage, Mei Hu, and Jonathan Hu because there are disputed material facts precluding summary judgment and because the district court incorrectly applied the law. A review of the record establishes that, although there are several disputed facts, none of them is material to the dispositive legal issues. Thus, the district court did not err when it granted dismissal of Peng's claims.
As an initial matter, Gage asserts that the notice of appeal was untimely and insufficient. The order dismissing Gage was entered on February 27, 2002. The notice of appeal was filed on May 10, 2002. Attached to the notice of appeal is a copy of the final order dismissing the remaining claims against the Hus that was filed by the court on April 11, 2002. Gage argues that the notice was not timely because it was filed more than thirty days after the order dismissing him was entered, and it was insufficient because it did not include a copy of the order that dismissed him.
Regarding the timeliness argument, Gage is correct that a notice of appeal generally must be filed within thirty days of the judgment or order appealed from. Fed.R.App.P. 4(a)(1)(A) (). When multiple claims or parties are involved, however, judgment may be entered as to fewer than all the claims and all the parties "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed.R.Civ.P. 54(b); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 923 (9th Cir.2001).
In this case, a Rule 54(b) determination was not made following the order granting Gage summary judgment. Nor was a final judgment ever entered on a separate document; not even after the final order dismissing the remaining claims was entered. See Fed.R.Civ.P. 58(a)(1) (); Fed.R.Civ.P. 79(a) (). Under these circumstances, judgment is considered entered 150 days from the entry of the final order dismissing the remaining claims. Fed.R.App.P. 4(a)(7)(A)(ii). Here, the notice of appeal is timely because the final order dismissing all remaining claims was entered on April 11, 2002, a final judgment was never entered, and the notice of...
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