Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)
Annotate this CaseFlorence Sherman FLAVEL, Mary Louise Flavel, Plaintiffs-Appellants,v.David LOGSDON, Robert Johnson, Glen Larson, Dan Van Thiel,City of Astoria, Oregon, Clatsop County, Oregon,Harold Snow, Glenn Faber, Defendants-Appellees.
No. 90-35292.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 8, 1991. Submission Vacated March18, 1991.Decided July 3, 1991.
Before JAMES R. BROWNING, CANBY and TROTT, Circuit Judges.
MEMORANDUM*
Submission of this case was vacated pending the Supreme Court's decision in Burns v. Reed, 111 S. Ct. 1934 (1991). It is now resubmitted.
* Florence and Mary Flavel appeal summary judgment for defendants in their suit arising out of a landlord-tenant dispute. We affirm the district court.1
II
Clatsop County Defendants
The first issue raised by this appeal is whether Glenn Faber is eligible for absolute or qualified immunity for advising Officer David Logsdon not to arrest Thomas Latham. Under Burns v. Reed, Faber is entitled only to qualified immunity, because his actions were not "closely related to the judicial process." Id. at 1943. Faber is eligible for qualified immunity unless he violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 1944 n. 8 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Flavels allege that Faber deprived them of the right to police protection of their property. Because there is no affirmative duty to provide police protection in the absence of a special relationship, see DeShaney v. Winnebago County Social Dep't of Social Servs., 489 U.S. 189 (1989), Faber did not violate the Flavels' clearly established rights.
Clatsop County is also immune, on two alternate grounds. First, the Flavels' claim under the Oregon Tort Claims Act fails because Or.Rev.Stat. Sec. 30.265(2) provides that a public body is immune from liability for the acts of its employee when the employee is immune. Second, the Flavels failed to allege an unconstitutional policy or custom of Clatsop County that harmed them.
III
The Astoria Defendants
The district court held that all defendants connected with the City of Astoria were protected by qualified immunity. See Harlow v. Fitzgerald, 457 U.S. at 818. Because there is no duty for the police to intervene to prevent a taking by a private party, see DeShaney, there was no clearly established right of the Flavels that was violated by the Astoria defendants' failure to arrest Latham.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of the circuit except as provided by Ninth Cir.Rule 36-3
Faber and Clatsop County argue the panel has no jurisdiction to hear this appeal because, in their notice of appeal, the Flavels failed to specify they were appealing from the Aug. 15, 1989 opinion granting Faber and Clatsop County's summary judgment motion. However, the judgment granting Faber and Clatsop County's motion was not entered until February 28, 1990, and the notice of appeal did name that judgment as the one being appealed. The notice of appeal therefore satisfies Fed. R. App. P. 3(c)
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