Jeffrey Pataky v. City of Phoenix

429 F. App'x 648

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2011
• Docket: 09-17674
• Status: Unpublished

Opinion

MEMORANDUM ***

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.

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 wilting 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.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.