Le Count P. SCOTT, Plaintiff-Appellee, v. CITY OF PASADENA; et al., Defendants-Appellants.
No. 09-55207
United States Court of Appeals, Ninth Circuit
Submitted April 5, 2010. Filed April 8, 2010.
373 Fed. Appx. 759
Frank Louis Rhemrev, Esquire, Pasadena City Attorney‘s Office, Pasadena, CA, for Defendants-Appellants.
Before: KOZINSKI, Chief Judge, D.W. NELSON, Circuit Judge, and GERTNER,** District Judge.
RAWLINSON, Circuit Judge, concurring:
I concur in the result.
MEMORANDUM***
Defendants appeal from the district court‘s denial of their motion for summary judgment. They assert that plaintiff‘s claim of excessive force is barred by his prior conviction under
Defendants also claim the district court erred by denying summary judgment based on qualified immunity. The district court determined that a reasonable jury could find that the arresting officer “threw [plaintiff] to the ground after he had been effectively subdued, causing his leg to break.” [Order at 23] Defendants do not claim that a reasonable officer would believe such conduct to be constitutional; they claim the evidence doesn‘t support the district court‘s conclusion. We lack jurisdiction to review the denial of a motion for qualified immunity on an interlocutory appeal “when the basis for the defendant‘s motion is that the evidence in the pretrial record is insufficient to create a genuine issue of fact.” Watkins v. City of Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998) (quoting Armendariz v. Penman, 75 F.3d 1311, 1317 (9th Cir.1996)). Defendants’ challenge to the district court‘s reli
Because we lack jurisdiction to review defendants’ claims, this appeal must be dismissed.
DISMISSED.
NUNG FA TAN; Rui Ye Li, Plaintiffs-Appellants, v. Eric H. HOLDER, Jr., Attorney General, U.S. Attorney General; Condoleeza Rice, U.S. Secretary of State; Robert Goldberg, Consul General, United States Consulate, Guangzhou China; Jonathan Scharfen, Acting Director, U.S.C.I.S., Defendants-Appellees.
No. 09-55329
United States Court of Appeals, Ninth Circuit
Submitted April 6, 2010. Filed April 8, 2010.
373 Fed. Appx. 760
U.S. Department of Justice, Washington, DC, for Defendants-Appellees.
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
MEMORANDUM**
Plaintiffs Nung Fa Tan and Rui Ye Li appeal the district court‘s order dismissing their complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. We have jurisdiction under
After the United States Consulate in Guangzhou, China, denied Li‘s visa application, Plaintiffs filed a complaint in federal district court against the Consul General in Guangzhou, China, the Acting Director of USCIS, and other government officials. The first through fourth causes of action in the complaint alleged violations of the Immigration and Nationality Act and accompanying regulations, the Administrative Procedure Act, and the Freedom of Information Act. “[I]t has been consistently held that the consular official‘s decision to issue or withhold a visa is not subject either to administrative or judicial review.” Bustamante v. Mukasey, 531 F.3d 1059, 1061 (9th Cir.2008) (quoting Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986)) (alteration in original). Because the decisions of consular officers are not subject to judicial review on non-constitutional claims, see id. (noting “a limited exception to the doctrine where the denial of a visa implicates the constitutional rights of American citizens“), the district court properly dismissed the first through fourth causes of action for lack of subject matter jurisdiction.
Plaintiffs’ fifth and sixth causes of action alleged that Defendants “are depriving