Kevin Smith, Jr. v. Los Angeles County

452 F. App'x 768

9th Cir.

2011

Check Treatment

Docket

Ham Do KIM, his wife Jinok Kim, and two of their children, natives and citizens of South Korea v. Eric H. HOLDER, Jr., Attorney General

No. 10-56066

United States Court of Appeals, Ninth Circuit

October 6, 2011

768

Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, OIL, Luis E. Perez, Senior Litigation Counsel, Elizabeth J. Stevens, Assistant Director, Linda S. Wendtland, Esquire, DOJ-U.S. Department of Justice, Washington, DC, for Respondent.

MEMORANDUM **

Ham Do Kim, his wife Jinok Kim, and two of their children, natives and citizens of South Korea, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge‘s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency‘s findings of fact, and review de novo questions of law. Kim v. Holder, 603 F.3d 1100, 1102 (9th Cir. 2010). We deny the petition for review.

Substantial evidence supports the agency‘s finding of removability by clear and convincing evidence. See id. at 1103.

The agency did not err in concluding that petitioners were ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(k) where they never possessed immigrant visas. See Kyong Ho Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir. 2010) (to be eligible for a waiver under 8 U.S.C. § 1182(k) an alien must possess an immigrant visa).

Petitioners’ contention that the government should be equitably estopped from ordering their removal is unavailing. See Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000) (“[E]stoppel against the government is unavailable where petitioners have not lost any rights to which they were entitled.“); cf. Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1165-68 (9th Cir. 2005).

Petitioners’ remaining contention is not persuasive.

PETITION FOR REVIEW DENIED.

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Kevin B. SMITH, Jr. v. LOS ANGELES COUNTY; et al.

No. 10-56066

United States Court of Appeals, Ninth Circuit

October 6, 2011

769

Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

Kevin B. Smith, Jr., Los Angeles, CA, pro se. Matthew Allen, Lawrence Beach Allen & Choi, PC, Glendale, CA, Matthew Allen, Jin Suk Choi, Esquire, for Defendants-Appellees.

MEMORANDUM **

California state prisoner Kevin B. Smith, Jr. appeals pro se from the district court‘s judgment dismissing his 42 U.S.C. § 1983 action alleging that his Fourth and Fourteenth Amendment rights were violated during a partial strip search while he was a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (failure to state a claim); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (failure to exhaust administrative remedies). We affirm.

The district court properly dismissed without prejudice four of Smith‘s claims because Smith failed to initiate an administrative grievance process as to any of those claims before filing his action. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006) (concluding that “proper exhaustion” is mandatory and requires adherence to administrative procedural rules); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring exhaustion of administrative remedies prior to filing suit).

The district court properly dismissed Smith‘s Fourteenth Amendment claim against Deputy Sanchez because Smith failed to allege any facts showing that Sanchez acted with an “expressed intent to punish” or that the search was “not reasonably related to a legitimate goal.” Bell v. Wolfish, 441 U.S. 520, 538-39, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Smith also failed to allege facts establishing that Sanchez acted with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (a prison official acts with deliberate indifference if “he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it“); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (applying the deliberate indifference standard to pretrial detainees).

The district court properly concluded that Smith failed to state a Fourth Amendment claim against Sanchez because Smith failed to allege any facts showing that the search was unreasonable in light of “the scope of the particular intrusion, the manner in which it [wa]s conducted, the justification for initiating it, and the place in which it [wa]s conducted.” Bell, 441 U.S. at 559, 99 S. Ct. 1861 (upholding a policy of visual body cavity searches of pretrial detainees).

Because Smith failed to state a constitutional violation, there can be no municipal liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (per curiam).

The district court properly dismissed without leave to amend Smith‘s third amended complaint because any amendment would have been futile. See Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per curiam).

Smith‘s remaining contentions are unpersuasive.

AFFIRMED.

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In re: Melody L. LARK, Debtor. Melody L. Lark v. Board of Trustees of the California State University Office of the General Counsel

No. 10-60020

United States Court of Appeals, Ninth Circuit

October 6, 2011

770

Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

Melody L. Lark, Chapel Hill, NC, pro se. Christine Helwick, Esquire, General Counsel, California State University, Office of General Counsel, Lorena C. Penaloza, I, Esquire, Litigation Counsel, Long Beach, CA, for Appellee.

MEMORANDUM **

Melody L. Lark appeals pro se from the decision of the Bankruptcy Appellate Panel affirming the bankruptcy court‘s determination of the non-dischargeability of Lark‘s student loans under 11 U.S.C. § 523(a)(8). We have jurisdiction under 28 U.S.C. § 158(d). We review de novo, Rifino v. United States (In re Rifino), 245 F.3d 1083, 1087 (9th Cir. 2001), and we dismiss.

We cannot review Lark‘s challenge to the bankruptcy court‘s oral determination of the non-dischargeability of her student loans because Lark failed to include the relevant transcripts in the record on appeal as required by Fed. R. App. P. 10(b)(2). See Syncom Capital Corp. v. Wade, 924 F.2d 167, 169-70 (9th Cir. 1991) (per curiam) (dismissing appeal for appellant‘s failure to provide a transcript).

DISMISSED.

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Notes

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

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

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