Unpublished Disposition, 872 F.2d 426 (9th Cir. 1986)

MEMORANDUM^** 

Anthony Brown appeals pro se the district court's dismissal with prejudice of his action for damages against numerous defendants arising out of events leading up to and subsequent to Brown's filing for bankruptcy. The district court granted summary judgment against Brown on his non-abandoned claims, dismissed Brown's federal causes of action for failure to state a claim, and declined to take pendent jurisdiction over Brown's state law causes of action. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

Anthony Brown brought suit in federal district court against over thirty defendants. His first amended complaint contained three federal law claims including alleged violations of the United States Constitution, the Sherman Anti-Trust Act, and the automatic stay provisions of the Bankruptcy Act, as well as state law claims for, inter alia, breach of contract, negligent misrepresentation, fraud, breach of fiduciary duty, tortious interference with business relationships, and intentional infliction of emotional distress.

The gravamen of Brown's complaint is the allegedly illegal search and seizure of Kootenai Springs Resort, a property of Brown's bankruptcy estate. Brown filed for Chapter 11 bankruptcy on June 17, 1982, whereupon the bankruptcy court issued an automatic stay. Brown alleges that in a state court hearing held on June 30, 1982, the defendants, including Brown's own lawyer, engaged in a conspiracy to withhold from the state court knowledge of the automatic stay issued after Brown filed for bankruptcy. The state court issued an order providing that several of the defendants were entitled to immediate occupancy of the resort property. Brown alleges that Lincoln County Sheriff Shaw and his deputies, acting pursuant to the state court's order, entered the Kootenai Springs Resort and removed Brown and his belongings from the property, even though Brown had shown the officers the automatic stay order.

On November 18, 1986, the district court granted summary judgment in favor of several defendants (Lincoln County, Shaw, Thorn, Bauer, Deboer, Koskello, Townsend, Kansas City Life Insurance Company, Lincoln County Title Company, Bostock, Fennessy, Crocker and Harman). The court held that Brown's claims against these defendants had never been abandoned by Brown's estate in bankruptcy and that Brown had no standing to sue on behalf of his bankruptcy estate.

On the same day, the district court issued an order dismissing Brown's action as to several more defendants: the State of Montana, Buyske, First National Bank of Libby and its officers Remick, Haines and Carr. In the same order, the court also dismissed all of Brown's claims as to all remaining defendants under Fed. R. Civ. P. 12(b) (1) and 12(b) (6). Finally, the court granted Brown leave to file a second amended complaint on or before December 17, 1986 charging any remaining defendants with violations of the Fourth Amendment of the United States Constitution and the Sherman and Clayton Acts.

Brown elected not to file a second amended complaint and moved for entry of final judgment. On December 19, 1986, the district court dismissed Brown's action on the merits and with prejudice. Brown timely appealed to this court, alleging the district court erred (1) in dismissing his federal civil rights claims under Fed. R. Civ. P. 12(b) (6); (2) in granting summary judgment against Brown on his claim that property of his estate in bankruptcy was unlawfully seized; and (3) in declining to exercise pendent jurisdiction over his state law claims.

ANALYSIS

We review a dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6) de novo. Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988). A grant of summary judgment is reviewed de novo. Cal. Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987). " [I]f the non-moving party bears the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element, then summary judgment is appropriate." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).¹  Finally, we review a district court's decision not to exercise pendent jurisdiction for abuse of discretion. Dezell v. Day Island Yacht Club, 796 F.2d 324 (9th Cir. 1986).

Federal Civil Rights Claims

Brown contends that the district court erred in dismissing his 42 Secs. 1983, 1985(2) and 1986 claims. He alleges that the defendants (except Kansas City Life Insurance Company) participated in "a continuing, deliberate scheme ... acting under color of state law, and employing the power of the state, to fleece Brown of property rights vested solely in him prior to commencement of the conspiracy." The district court, apparently believing that Brown might be able to state a section 1983 claim against some of the defendants with regard to the search and seizure of his property, granted Brown leave to file a second amended complaint. Brown elected not to file a second amended complaint and now contends that his first amended complaint does state claims under sections 1983, 1985(2) and 1986. We cannot agree.

Section 1983

A cause of action under section 1983 requires that a plaintiff plead and prove (1) that the defendants, acting under color of state law (2) deprived the plaintiff of federal constitutional or statutory rights. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988). When the defendants are private persons, a plaintiff must prove that they exercised control over or directed the activity of public officials allegedly violating the plaintiff's rights. Mann v. City of Tucson, Dept. of Police, 782 F.2d 790, 793 (9th Cir. 1986).

The defendants fall into two groups: (1) public officials--William Douglas, Lincoln County Attorney, Shaw, Lincoln County Sheriff, Thorn, Bauer, Deboer, Koskelo, and Townsend, Lincoln County Deputy Sheriffs; and (2) private persons. Brown nowhere alleges that defendants of the second group acted under color of law. Furthermore, Brown does not allege that these private persons exercised control over or directed the activity of any of the defendants in the first group while these public officials were acting under color of law.²  Accordingly, the district court properly dismissed Brown's section 1983 claim against the private persons named in Brown's complaint.

Brown does allege that the defendants of the first group, i.e., the public officials, acted under color of law. He further alleges that these defendants violated his federal civil rights in the following two paragraphs of his First Amended Complaint:

3.23 The District Judge signed an order ... and while the ink was yet drying, the SHERIFF and his DEPUTIES raced to the Kootenai Springs Resort with their sirens wailing and lights flashing. ANTHONY E. BROWN arrived later. Said SHERIFF and DEPUTIES forcibly entered upon the Plaintiff's property, residence and removed his belonging. ANTHONY E. BROWN showed all of the DEPUTIES and the SHERIFF a copy of the Federal Stay Order and told them that what they were doing was illegal and that they should call the county attorney for his opinion before proceeding. The SHERIFF and/or a DEPUTY SHERIFF telephoned WILLIAM DOUGLAS, the LINCOLN COUNTY attorney, who advised the SHERIFF and DEPUTY SHERIFFS that it was legal and proper to eject ANTHONY E. BROWN notwithstanding his rights under the Bankruptcy Act and Stay Order, and/or applicable state law. ANTHONY E. BROWN was subsequently removed from his property.

These allegations against the Lincoln County officials satisfy the first element of a section 1983 claim (i.e., action under color of law). Such allegations, however, do not satisfy the second element because Brown's federal rights are not implicated.

Brown's allegations tend to indicate that the public officials acted reasonably and in good faith. See Robins v. Harum, 773 F.2d 1004 (9th Cir. 1985) (holding that section 1983 claim based on violation of Fourth Amendment rights is viable if police search and seizure was unreasonable). In response to Brown's request, Sheriff Shaw and his deputies called County Attorney Douglas for confirmation that they were acting pursuant to a valid court order.³  We cannot, therefore, find any error in the district court's dismissal of Brown's section 1983 claim.

Section 1985(2) and Section 1986 Claims

Brown also contends that the district court improperly dismissed his claims under 42 U.S.C. §§ 1985(2) and 1986. He alleges that several defendants (including his own attorney, Sverdrup) engaged in a conspiracy to conceal from the state court the fact that a petition in bankruptcy had been filed.

The district court, citing Griffin v. Breckinridge, 403 U.S,. 88, 102 (1971), dismissed the section 1985(2) claim on the ground that Brown is not a member of a class entitled to the protection of section 1985. Brown contends that Griffin only applies to claims under section 1985(3) and that in Kush v. Rutledge, 460 U.S. 719 (1983), the Supreme Court held that class-based animus is not an element of a section 1985(2) claim.

Brown's reliance on Kush v. Rutledge is misplaced. Section 1985(2) contains two clauses. The first clause, prohibiting any conspiracy to intimidate or injure any party, witness or juror in a federal judicial proceeding, has no application to the facts of this case. Brown' section 1985(2) claim is cognizable only under the second clause of that provision, which prohibits any conspiracy to impede justice in a state court. In Kush v. Rutledge, the Supreme Court held only that class-based animus was not an element of a claim based on the first clause of section 1985(2). 460 U.S. at 726. Neither Kush v. Rutledge nor Griffin v. Breckenridge resolves the issue whether an action under the second clause of section 1985(2) requires class-based animus.

We have held, however, that claims under sections 1985(2) and 1985(3) require the element of class-based animus. A & A Concrete, Inc. v. White Mountain Apache Tribe, 676 F.2d 1330, 1333 (9th Cir. 1982). Since Kush v. Rutledge did not overrule the requirement of class-based animus with regard to a claim brought under the second clause of section 1985(2), the law of this circuit requires class-based animus for such a claim. Therefore, the district court properly dismissed Brown's section 1985(2) claim for failure to allege class-based animus. Furthermore, because "the availability of section 1986 turns on the existence of a claim under section 1985," Lonneker Farms Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir. 1986), the district court properly dismissed Brown's section 1986 claim.⁴ 

Abandonment of Claims

The district court granted summary judgment in favor of several defendants (Lincoln County, Shaw, Thorn, Bauer, Deboer, Koskello, Thomas Townsend, the Kansas City Life Insurance Company, Lincoln County Title Company, Bostock, Fennessy, Crocker, and Harmon). These defendants had moved for summary judgment on the basis that Brown's claims against them were never abandoned. The court granted summary judgment on two grounds: (1) the claims against these defendants had not been abandoned; and (2) if Brown's claims arose after the filing of bankruptcy, Brown had no standing to assert them.

On appeal, Brown first contends that the district court's conclusion that his claims had not been abandoned was based on the legally erroneous premise that abandonment requires notice and a hearing. We disagree. Notice and a hearing are explicitly required by the language of 11 U.S.C. § 554 (1983). Furthermore, we have held that "there is no abandonment without notice to creditors." Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 709 (9th Cir. 1986). Brown's reliance on Stein v. United Artists, 691 F.2d 885 (9th Cir. 1982), is misplaced because in that case we were interpreting the Bankruptcy Act of 1898, id. at 888 n. 1., whereas the present case is under the Bankruptcy Act of 1978. Thus, we fail to see any legal error in the district court's reasoning.

Secondly, Brown contends that the district court erred in finding that he did not have standing to assert claims involving property of the estate. Frankly, we find Brown's argument in support of this contention muddled:

To say that [Brown] has no standing to sue on a non-abandoned claim is accurate. Stein, supra. To say that he has no standing to seek a determination as to whether or not a given claim was abandoned ignores a wealth of decisional law including, once again, Stein.

Appellant's Opening Brief at 29. Because, as we have noted, Stein is inapposite, and the district court properly found that Brown's claims had not been abandoned, this second argument by Brown must also fail. Accordingly, we conclude that the district court properly granted summary judgment in favor of defendants Lincoln County, Shaw, Thorn, Bauer, Deboer, Koskello, Townsend, the Kansas City Life Insurance Company, Lincoln County Title Company, Bostock, Fennessy, Crocker and Harmon.⁵ 

Pendent State Law Claims

Brown's First Amended Complaint contained in addition to three federal claims seventeen different state law claims. After dismissing the federal claims, the district court declined to take pendent jurisdiction over the state law claims. Brown now contends that the district court abused its discretion under United Mine Workers v. Gibbs, 383 U.S. 715 (1966), in refusing to exercise pendent jurisdiction. We find this contention meritless.

As the Supreme Court noted in Gibbs, "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Id. at 726. Therefore, in order to reverse the district court's decision not to exercise pendent jurisdiction, we must have "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." United States v. City of Twin Falls, Idaho, 806 F.2d 862, 868 (9th Cir. 1986). Considering the clear predominance of state claims in this suit, see Gibbs, 383 U.S. at 726, we cannot say that the district court abused its discretion in declining to exercise pendent jurisdiction.

AFFIRMED.