Off It Inc. v. Thurston County , 583 F. App'x 817 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OFF IT INC, a Washington State No. 13-35408
corporation and LAYNE E HUBER, in his
individual capacity, D.C. No. 3:12-cv-05701-RBL
Plaintiffs - Appellants,
MEMORANDUM*
v.
THURSTON COUNTY, a municipal
corporation and CITY OF LACEY, a
municipal corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 11, 2014
Seattle, Washington
Before: ALARCÓN, TASHIMA, and MURGUIA, Circuit Judges.
Appellants Off-It, Inc. and Layne Huber (collectively “Huber”) appeal from
the district court’s grant of summary judgment in Appellee Thurston County’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
favor on Huber’s claim against the County under 42 U.S.C. § 1983 for ratifying a
constitutional violation. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
In his briefing, Huber identified the sole constitutional violation at issue in
this case as the County prosecutor’s “indefinite withholding” of the allegedly
stolen property officers seized as evidence for criminal charges the County
prosecutor had not yet brought but contended it would bring in the future.1 Huber
did not specify the federal constitutional violation he contended the County
ratified. His complaint and his briefs on appeal suggest, however, that the County
ratified an unconstitutional deprivation of property without due process in violation
of the Fourteenth Amendment.
“[A]n unauthorized intentional deprivation of property by a state employee
does not constitute a violation of the procedural requirements of the Due Process
Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for
the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Washington
Superior Court Criminal Rule 2.3(e) (“CrR 2.3(e)”) supplies such a remedy here.
1
The County represented at oral argument that it will not file stolen property
charges against Huber, a representation that is consistent with its post-argument
filing in this Court.
2
Although Huber contends that CrR 2.3(e) is an inadequate postdeprivation
remedy, the rule’s allowance for an evidentiary hearing that places the initial
burden on the state undermines any such contention. See State v. Marks, 790 P.2d
138, 144 (Wash. 1990) (en banc) (“An evidentiary hearing is required under
CrR 2.3(e) where the State and the defendant can offer evidence of their claimed
right to possession,” at which “[t]he State has the initial burden of proof to show
right to possession.”).
Huber argues that a CrR 2.3(e) motion here “would have no basis in law or
fact” because Thurston County contends it holds the property as evidence for
charges the prosecutor intends to file but has not. Huber conceded at oral
argument, however, that he has filed a CrR2.3(e) motion since the district court
entered judgment and after he took this appeal. That motion remains pending
before the Washington State Superior Court. Because he has now filed a challenge
under CrR. 2.3(e) and failed previously to avail himself of this state
postdeprivation remedy, Huber cannot, at this juncture, demonstrate that Thurston
County may be liable for ratifying a violation of federal law.
AFFIRMED.
3