Foster et al v. City Of Oakland et al

Filing 105

USCA ORDER (gba, COURT STAFF) (Filed on 1/14/2010)

Case: 09-74059

01/13/2010

Page: 1 of 2

DktEntry: 7193808

F IL E D
U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JAN 13 2010
MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S

In re: WILLIAM BERGERON.

N o . 09-74059 D .C . No. 3:05-cv-03110-MHP N o rth ern District of California, San Francisco

W I L L IA M BERGERON, Petitioner,

ORDER v. U N IT E D STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF C A L I F O R N I A (SAN FRANCISCO), Respondent, Y A N C IE YOUNG, Real Party in Interest.

B efo re: SILVERMAN, PAEZ and BEA, Circuit Judges. Petitioner has not demonstrated that this case warrants the intervention of th is court by means of the extraordinary remedy of mandamus. See Bauman v. U n ited States Dist. Court, 557 F.2d 650 (9th Cir. 1977). The posture of the case d id not require the district judge to rule on qualified immunity. The district court

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Case: 09-74059

01/13/2010

Page: 2 of 2

DktEntry: 7193808

h ad before it only the real party in interest's motion; there was no cross-motion by p etitio n er. Accordingly, the petition is denied. In denying the petition for writ of mandamus, we in no way preclude the p etitio n er from seeking a ruling by the district court on his affirmative defense of q u a lif ie d immunity either by a properly filed motion for summary judgment or at tr ia l. Petitioner's alternative request to construe this petition as a notice of appeal o f the district court's December 14, 2009 order, entered December 15, 2009, and a m o tio n for stay of district court proceedings is denied.

BEA, Circuit Judge: I dissent. The district court erred in entering partial summary judgment in fav o r of real party in interest Young with respect to his 42 U.S.C. § 1983 claim of a n unconstitutional search without having determined the issue of qualified im m u n ity, vel non. See Pearson v. Callahan, 129 S. Ct. 808 (2009); Saucier v. K a tz, 121 S. Ct. 2151 (2001).

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