Kenneth Farley, Plaintiff-appellant, v. Daniel E. Henderson, Defendant-appellee.arnold K. Riley; Carolyn B. Riley; Tamara Riley; Robertj. Wright, Plaintiffs-appellants, v. Daniel E. Henderson; Aka Dan Harris; James Lowell; Jerryborsch; Tom Honte; Randy Jones; Mervin Lakin;sandra Ramsey; Board of Medicalexaminers, Defendants-appellees, 875 F.2d 231 (9th Cir. 1989)

Appellants in these two consolidated actions are members of the Holy Spirit of God Church. Both actions raise the identical issue: Whether the arrest of "psychic surgeon" Gary Magno by Phoenix police officer Daniel Henderson deprived appellants of their first amendment free exercise rights. We conclude that it did not and affirm the dismissal of both actions.

Magno professes to be a "psychic surgeon."¹  Officer Henderson engaged in an undercover police investigation of Magno. As a result of information gathered during this investigation, Henderson obtained a warrant and arrested Magno for medical fraud under an Arizona fraud statute, Ariz.Rev.Stat.Ann Sec. 13-2310, on August 9, 1986.

Appellants Arnold, Carolyn, and Tamara Riley and Robert Wright paid the bail monies necessary to secure the release of Magno, his wife, and assistants who were arrested with Magno. The Rileys and Wright filed a pro se complaint in federal court under 42 U.S.C. § 1983 alleging that their first amendment right to the free exercise of their religion was violated by the investigation and arrest of Magno.²  Named as defendants are: Henderson; James Lowell, a member of the Arizona Chapter of the National Council Against Health Fraud; Jerry Borsch, Director of Investigations for the Arizona Board of Medical Directors; Tom Honte, a Scottsdale police detective; Randy Jones, a private citizen; Mervin Lakin, M.D.; Sandra Ramsey, a Special Agent of the Arizona State Attorney General's Office; and the Arizona Board of Medical Examiners. Appellant Farley also filed a pro se action against Henderson alleging a similar claim under the first amendment.³ 

The same attorney represented appellees in both actions. Similar motions to dismiss or alternatively for summary judgment were filed in both actions. Both motions were granted. Farley's action was dismissed on February 9, 1987, and the action filed by the Rileys and Wright was dismissed on May 15, 1987. In a separate order filed on June 18, 1987, the district court granted the motion filed by Henderson and Jones for attorneys' fees and costs against the Rileys and Wright.

Appellants appeal the dismissal of their first amendment claims. The Rileys and Wright also appeal the award of attorneys' fees. Appellees request attorneys' fees and costs on appeal.

First Amendment

We have jurisdiction to consider the merits of appellants' claims under 28 U.S.C. § 1291 (1982). Because matters outside the pleading were presented to and not excluded by the district judges in both actions, we treat appellees' motions as motions for summary judgment under Fed. R. Civ. P. 56. Fed. R. Civ. P. 12(b). We review a district court's grant of a motion for summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir. 1987). Summary judgment is appropriate where there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); T.W. Elec. Serv., 809 F.2d at 630.

Appellants contend that Henderson's arrest of Magno deprived them of their first amendment rights to exercise freely their religious beliefs. Both complaints allege the deprivation of the right to experience spiritual surgery in furtherance of their religious belief in the power of the Holy Spirit.

In order to succeed on their claims under section 1983, appellants must demonstrate that a person acting under color of state law, custom, or practice has deprived them of a federally protected right. Escamilla v. City of Santa Ana, 796 F.2d 266, 268 (9th Cir. 1986). "The protection that the First Amendment provides to 'legitimate claims to the free exercise of religion,' does not extend to conduct that a state has validly proscribed." Employment Div., Dept. of Human Res. v. Smith, 485 U.S. 660, 108 S. Ct. 1444, 1451, 99 L. Ed. 2d 753 (1988) (emphasis in original) (quoting Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 107 S. Ct. 1046, 1050, 94 L. Ed. 2d 190 (1987)). Because Magno was arrested under a valid Arizona statute, first amendment free exercise protection is, as a matter of law, unavailable to appellants.

Appellants do not appear to challenge the validity of the Arizona fraud statute. They do argue that psychic surgery is not a fraud.⁴  This latter argument may be interpreted as support for the contention that because Magno was not actually guilty of fraud, they are not precluded from relying on the free exercise clause. Whether or not psychic surgery is a valid means of healing a diseased individual or whether Magno is ultimately convicted of the fraud charge is irrelevant to resolution of appellants' claims.⁵  Appellants' claims were therefore properly dismissed.

ATTORNEYS' FEES

The Rileys and Wright contend that the award of attorneys' fees against them was improperly granted. Because no notice of appeal from the order granting attorneys' fees was filed, we lack jurisdiction to review the award. Culinary & Serv. Employees Union, Local 555 v. Hawaii Employee Benefit Admin., 688 F.2d 1228, 1232 (9th Cir. 1982) ("Where no notice of appeal from a post-judgment order awarding attorneys' fees is filed, the court of appeals lacks jurisdiction to review the order."). We decline the request made by Henderson and Jones for attorneys' fees on appeal.

AFFIRMED.