Levine v. City of Alameda ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD LEVINE, 
Plaintiff-Appellant,
v. No. 06-15480
CITY OF ALAMEDA, a California  D.C. No.
CV-04-01780-CRB
Charter City; JAMES M. FLINT, both
individually and as City Manager
for the City of Alameda,
Defendants-Appellees.

EDWARD LEVINE, 
Plaintiff-Appellee,
v. No. 06-15481
CITY OF ALAMEDA, a California  D.C. No.
CV-04-01780-CRB
Charter City; JAMES M. FLINT, both
individually and as City Manager OPINION
for the City of Alameda,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
January 16, 2008—San Francisco, California
Filed May 13, 2008
Before: Procter Hug, Jr., Mary M. Schroeder, and
Richard R. Clifton, Circuit Judges.
5391
5392 LEVINE v. CITY OF ALAMEDA
Opinion by Judge Hug
5394 LEVINE v. CITY OF ALAMEDA
COUNSEL
Roger A. Carnagey, Oakland, California, for the plaintiff-
appellant/cross-appellee.
Linda A. Tripoli, Tiburon, California, for the defendants-
appellees/cross-appellants.
OPINION
HUG, Circuit Judge:
Edward Levine filed this action under 42 U.S.C. § 1983against the City of Alameda (“City”) and James M. Flint, both
individually and as City Manager, alleging that the defendants
violated his due process rights under the Fourteenth Amend-
ment. On February 17, 2004, Flint told Levine, a property
manager for the City, that he was going to be laid off. Levine
wrote Flint a letter in which he requested a pretermination
hearing regarding his lay off. Levine believed that the lay off
was a pretext and that he was being terminated because Flint
disliked him.
After receiving the letter, Flint gave it to the City’s Human
Resources Director, Karen Willis, and told her to make sure
that Levine’s due process rights were respected. Willis then
LEVINE v. CITY OF ALAMEDA 5395
wrote Levine a letter stating that he was not entitled to a pre-
termination hearing under his union contract because he was
being laid off and not discharged for cause. In the letter, Wil-
lis offered to meet with Levine to discuss lay off procedures
and retirement benefits. Willis and Levine later ran into each
other in the Human Resources Department where they had a
five-minute talk and visited in general according to Willis.
After the parties filed cross motions for summary judg-
ment, the district court granted summary judgment in part (1)
for Levine, finding that his procedural due process rights were
violated and he was entitled to a full evidentiary hearing
before a neutral third-party, and (2) for defendants, finding
that Flint was not personally liable based on qualified immu-
nity and that the City was not liable as a municipality. Both
parties appealed. We affirm the district court.
I. Standard of Review
This court reviews de novo a district court’s decision on
cross motions for summary judgment. Children’s Hosp. Med.
Ctr. v. California Nurses Ass’n, 283 F.3d 1188, 1191 (9th Cir.
2002). We view the evidence in the light most favorable to the
nonmoving party and determine whether there are any genu-
ine issues of material fact and whether the district court cor-
rectly applied the substantive law. Chevron USA, Inc. v.
Cayetano, 224 F.3d 1030, 1037 (9th Cir. 2000).
II. Due Process
The district court did not err in granting summary judgment
for Levine in part and finding that the defendants violated his
Fourteenth Amendment due process rights under 42 U.S.C.
§ 1983. To establish a § 1983 claim, a plaintiff must show that
an individual acting under the color of state law deprived him
of a right, privilege, or immunity protected by the United
States Constitution or federal law. Lopez v. Dept. of Health
Servs., 939 F.2d 881, 883 (9th Cir. 1991). To establish a due
5396 LEVINE v. CITY OF ALAMEDA
process violation, a plaintiff must show that he has a protected
property interest under the Due Process Clause and that he
was deprived of the property without receiving the process
that he was constitutionally due. Clements v. Airport Author-
ity of Washoe County, 69 F.3d 321, 331 (9th Cir. 1995).
[1] In this case, the district court properly found that Levine
was a civil servant who had a property interest in continued
employment under the Due Process Clause. See id.; Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985). As
an employee with a property interest under the Due Process
Clause, Levine was entitled to have a hearing before his lay
off to allow him to present his side of the story. See Clements,
69 F.3d at 331-32; Loudermill, 470 U.S. at 542-43. Defen-
dants refused to provide a hearing. The Director of Human
Resources’ offer to meet with Levine to discuss lay off proce-
dure, and the random five-minute encounter between Levine
and the Director, failed to give Levine a meaningful opportu-
nity to respond to the lay off decision. See Clements, 69 F.3d
at 331-32. Thus, Levine’s due process rights were violated by
the failure to provide a pretermination hearing. See id.;
Loudermill, 470 U.S. at 542-45.
[2] Because Levine’s due process rights were violated, it
was not improper for the district court to order a full evidenti-
ary hearing to remedy the violation. See Brady v. Gebbie, 859
F.2d 1543, 1551 (9th Cir. 1988) (stating that the appropriate
remedy for the deprivation of due process rights is to order
the process which was due). The Supreme Court has held that
an employee with a property interest is entitled to a limited
pretermination hearing which is to be followed by a more
comprehensive post-termination hearing. Loudermill, 470
U.S. at 547. Levine was entitled to a full post-termination
hearing because there was no way to give Levine the process
that he had been due, which was an opportunity to respond
before the termination occurred. Cf. Loudermill, 470 U.S. at547 n.12 (noting that the adequacy of pretermination and
post-termination hearings are interrelated and that the scope
LEVINE v. CITY OF ALAMEDA 5397
of one affects the scope of the other). Thus, it was reasonable
for the district court to order that a full evidentiary hearing be
held. See id. at 547.
[3] It was also not improper for the district court to order
that the hearing be held before a neutral third-party. This
court has held that for post-termination hearings an impartial
decisionmaker is required. Walker v. City of Berkeley, 951
F.2d 182, 184 (9th Cir. 1991). The district court made a find-
ing that persons working for the City would not be suffi-
ciently neutral in this case after the extensive litigation
between the City and Levine. Because this finding was not
clearly erroneous, and an impartial decisionmaker is required,
the district court did not err in ordering that a neutral third-
party preside over the hearing. See id.III. Qualified Immunity
[4] The district court properly found that Flint was not per-
sonally liable for violating Levine’s due process rights based
on qualified immunity. Under the defense of qualified immu-
nity, a government official is immune from civil damages
unless his conduct violates a clearly established right of which
a reasonable person would have known. Long v. City and
County of Honolulu, 511 F.3d 901, 905-06 (9th Cir. 2007).
Determining whether a public official is entitled to qualified
immunity involves a two-part analysis. Saucier v. Katz, 533
U.S. 194, 199 (2001). First, we must determine whether the
official violated a constitutional right. Id. at 201. Second, we
must determine whether the right was clearly established such
that a reasonable official would known that he was engaging
in unlawful conduct. Aguilera v. Baca, 510 F.3d 1161, 1167
(9th Cir. 2007). If an official reasonably believed that his con-
duct was lawful, qualified immunity applies. Jeffers v. Gomez,
267 F.3d 895, 910 (9th Cir. 2001).
[5] In this case, although defendants violated Levine’s due
process rights by failing to provide a hearing, qualified immu-
5398 LEVINE v. CITY OF ALAMEDA
nity applies because Flint reasonably believed that his conduct
was lawful. See Kulas v. Valdez, 159 F.3d 453, 456 (9th Cir.
1998). As a supervisor, Flint can be held liable in his individ-
ual capacity only if he set “in motion a series of acts by oth-
ers, or knowingly refused to terminate [such acts], which he
knew or reasonably should have known, would cause others
to inflict the constitutional injury.” See Larez v. Los Angeles,
946 F.2d 630, 646 (9th Cir. 1991) (internal brackets omitted).
Flint forwarded Levine’s letter requesting a pretermination
hearing to Willis and expressly told her to ensure that
Levine’s due process rights were respected. Flint, therefore,
took action to protect Levine’s due process rights and there is
no evidence that Flint knew or should have known that Willis
would deprive Levine of his due process rights by improperly
denying his request. Even if Flint had expressly approved
Willis’s actions, he would still be entitled to qualified immu-
nity because Levine’s union contract stated he was not enti-
tled to a pretermination hearing if laid off and, thus, a
reasonable official in his position could have believed that his
conduct was lawful. Thus, because he instructed Willis to
respect Levine’s due process rights, and it was reasonable for
him to believe that Levine was not entitled to a pretermination
hearing, Flint is immune from suit based on qualified immu-
nity. See id.; Kulas, 159 F.3d at 456.
IV. Municipal Liability
[6] The district court also properly determined that the City
was not liable as a municipality under Monell v. Dep’t of Soc.
Servs. of New York, 436 U.S. 658 (1978). A city can be sued
for monetary damages under 42 U.S.C. § 1983 if the constitu-
tional violation was a product of a policy, practice, or custom
adopted and promulgated by the city’s officials. Id. at 690-91.
To establish liability, a plaintiff must establish that he was
deprived of a constitutional right and that the city had a pol-
icy, practice, or custom which amounted to “deliberate indif-
ference” to the constitutional right and was the “moving
LEVINE v. CITY OF ALAMEDA 5399
force” behind the constitutional violation. Van Ort v. Estate
of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).
[7] In this case, the district court properly determined that
the City is not liable under 42 U.S.C. § 1983. Levine pro-
duced no evidence that the City had a policy that amounted
to deliberate indifference to his constitutional due process
rights, and was the moving force behind a violation of those
rights. See Mabe v. San Bernardino County, Dep’t of Pub.
Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001). Levine con-
tended that Flint’s single act of terminating him represented
a policy amounting to deliberate indifference to his due pro-
cess rights. Because there was no evidence that Flint had any
policymaking authority over personnel decisions, and no evi-
dence of a policy or custom otherwise that amounted to a
deliberate indifference to his due process rights, the district
court properly granted summary judgment in part for the City
on this issue. See id.AFFIRMED.