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affirming dismissal pursuant to Fed. R. Civ. P. 12(b) and finding humiliation caused by visual anal cavity search of male prisoner within view of female officer did not amount to cruel and unusual punishment
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The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
3 Cal. Bankr. Ct. Rep. 49
Appeal from the Ninth Circuit Bankruptcy Appellate Panel, Ross, Volinn, and Russell, Bankruptcy Judges, Presiding.
Before SCHROEDER, FERNANDEZ, and W. FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Chapter 13 debtors Paul R. Christensen and Candice Christensen ("Christensens") appeal pro se the Bankruptcy Appellate Panel's ("BAP") decision affirming a bankruptcy court's order that remanded an action to state court under 28 U.S.C. § 1452(b) and abstained under 28 U.S.C. § 1334(c)(1) from the Christensens' adversary action. We dismiss in part, and affirm in part.
We lack jurisdiction to review the bankruptcy court's remand order because 28 U.S.C. § 1452(b) bars appellate review of such orders. See Security Farms v. International Brotherhood of Teamsters, 124 F.3d 999, 1010 (9th Cir.1997). Accordingly, we dismiss this portion of the Christensens' appeal.
We have jurisdiction under 28 U.S.C. § 158(d) to review the bankruptcy court's abstention order. We review the bankruptcy court's decision independent of the BAP's decision, see Ardmor Vending Co. v. Kim (In re Kim), 130 F.3d 863, 865 (9th Cir.1997), to determine whether the court abused its discretion by abstaining under § 1334(c)(1), see Siragusa v. Siragusa (In re Siragusa), 27 F.3d 406, 407-08 (9th Cir.1994).
In 1994, Congress amended § 1334 by providing, among other things, that discretionary decisions to abstain are no longer subject to appellate review. See 28 U.S.C. § 1334(d). However, this amendment does not apply to the Christensens' appeal because they filed their petition before October 22, 1994, the effective date of the amendments. See Wynns v. Wilson (In re Wilson), 90 F .3d 347, 350 (9th Cir.1996).
We conclude that the bankruptcy court did not abuse its discretion by electing to abstain in the Christensens' adversary action that sought the return of their truck from defendant because that action involved nearly identical state law issues that the Christensens raised in their then underlying state court action against defendant for conversion. See id. at 408-09; Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162, 1167 (9th Cir.1990); see also Bendor Corp. v. Conejo Enters., Inc. (In re Conejo Enters., Inc.), 96 F.3d 346, 351 (9th Cir.1996) (stating that court of appeals will reverse a bankruptcy court's discretionary decision only if that decision is based upon legal error or if the record contains no evidence on which the court rationally could have based that decision).
The Christensens alleged in the state court action that defendant refused their repeated requests to return the truck to them and that defendant eventually sold the truck and retained the proceeds from the sale.
Appellee is entitled to recover his costs on appeal.
DISMISSED in part, and AFFIRMED in part.