Jayantibhai Patel v. City of Long Beach , 489 F. App'x 159 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAYANTIBHAI PATEL, Individual and No. 09-56699
all others similarly situated and Plaintiff
Tenants, DBA Princess Inn; et al., D.C. No. 2:08-cv-02806-ABC-VBK
Plaintiffs - Appellants,
MEMORANDUM *
v.
CITY OF LONG BEACH,
a municipal corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted December 6, 2010
Pasadena, California
Before: PREGERSON, CLIFTON, and BEA, Circuit Judges.
The Patels appeal from the district court’s dismissal of their suit under 42
U.S.C. § 1983 alleging violation of due process and the First and Fourth
Amendments. The Patels’ claims arise from actions taken by Long Beach towards
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
them in their roles as owners and operators of the Princess Inn, a motel in Long
Beach, California. We affirm.
I. Due Process
Plaintiffs Pravin and Dipak Patel claimed that Long Beach deprived them of
substantive due process by failing to give them notice of the administrative hearing
regarding the revocation of the license to operate the Princess Inn. Pravin and
Dipak, as owners of the Inn, did not have a property interest in Jayantibhai Patel’s
license to operate the Inn and therefore did not have a right to procedural due
process. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-570
(1972) (“The requirements of procedural due process apply only to deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty and
property.”). As the district court noted, Dipak and Pravin may have a “curious
interest” in the outcome of the license revocation hearing, but they have no
ownership of the license nor a “legitimate claim of entitlement to it.” Id. at 577.
The district court properly found there was no violation of the due process clause.
II. First Amendment
The Patels’ First Amendment claim also relates to Long Beach’s
commencement of procedures to revoke the license to operate the Princess Inn.
The complaint alleged a violation of their right to access the courts, but gave no
2
further specifics as to how this right was violated. Plaintiffs’ response to Long
Beach’s motion for summary judgment raised for the first time a theory of
retaliation. As the district court held, a plaintiff cannot raise a new theory for the
first time in opposition to summary judgment. See Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1292-93 (9th Cir. 2000) (plaintiff could not proceed with new
theory not pled in complaint); Wasco Products, Inc. v. Southwall Tech., Inc. 435
F.3d 989 (9th Cir. 2006). Allowing a plaintiff to proceed on a new theory would
prejudice defendants because “[a] complaint guides the parties’ discovery putting
the defendant on notice of the evidence it needs to adduce in order to defend
against the plaintiff’s allegations.” Coleman, 232 F.3d at 1292. The statement in
the complaint that there was a denial of access to the courts, without explanation,
provided no notice of a retaliation theory. The district court properly held that the
Patels could not raise this new theory during summary judgment.
Moreover, even if the district court had considered this argument, it was
without merit. Plaintiffs claimed retaliation due to their refusal to enter into a
settlement agreement with the City regarding unpaid taxes. Plaintiffs relied on
Sorrano Gasco, Inc. v. Morgan, 874 F.2d 1310, 1313-14 (9th Cir. 1989), in which
the court recognized a claim under § 1983 where a business alleged that the
government suspended its permits in retaliation for criticizing and bringing suit
3
challenging a government program. Plaintiffs’ reliance on Sorrano is misplaced
because the Sorrano Court was explicit that a retaliation claim will only lie if
“plaintiffs can establish that the decision to suspend the permits was made because
of [plaintiffs’] exercise of constitutionally protected rights.” Id. at 1314.
Plaintiffs’ rejection of a settlement agreement was not an exercise of a
constitutionally protected right.
III. Fourth Amendment
The Patels raise a facial and as-applied challenge under the Fourth
Amendment to Long Beach Municipal Code (“LBMC”) § 5.48.010, which requires
motel operators to maintain a guest registry and make it available to the police for
inspection on demand. They argued that the regulation is facially unconstitutional
because it allows for warrantless searches and that the specific inspection of the
Princess Inn’s guest registry was unconstitutional.
We considered a facial challenge to a similar municipal regulation in Patel v.
Los Angeles, No. 08-56567, __ F.3d. __ (9th Cir. _____, 2012) Our conclusion in
that case that the facial challenge failed is controlling here. Like the Patels in that
case, the Patels here are unable to show that all motel owners affected by the
regulation have a subjective and objectively reasonable expectation of privacy in
their guest registries. See Minnesota v. Carter, 525 U.S. 83, 88 (1998) (“in order
4
to claim the protection of the Fourth Amendment, a [person] must demonstrate that
he personally has an expectation of privacy in the place searched, and that his
expectation is reasonable”). Nor have they demonstrated that the intrusion into the
papers authorized under the ordinance is unreasonable in some other way, as to
themselves or to motel operators in general. Therefore the Patels cannot “establish
that no set of circumstances exist under which the Act would be valid.” United
States v. Salerno, 481 U.S. 739, 745 (1987).
The Patels also raise an as-applied challenge specific to the search and
seizure of the guest registry of the Princess Inn. As we noted in Patel v. Los
Angeles, it might be possible for a motel owner to establish that he has a reasonable
expectation of privacy in his guest registry based on the manner in which he uses,
maintains, and stores the registry. See Patel v. Los Angeles, slip op. at __ ; see also
Sibron v. New York, 392 U.S. 40, 59 (1968) (“The constitutional validity of a
warrantless search is pre-eminently the sort of question which can only be decided
in the concrete factual context of the individual case.”).
However, here the Patels have presented no evidence that demonstrates that
they have even a subjective expectation of privacy in the Princess Inn guest
registry, let alone an objectively reasonable expectation. There was no evidence
presented that the guest registry is used in a manner that would make it important
5
to keep the information in the guest registry private. Nor was there any evidence
that the Patels maintain or store the guest registry in a secure or private manner,
such that inspection of the registry would constitute an intrusion that was
unreasonable in any other way. The Patels failed to meet their burden. See United
States v. Silva, 247 F.3d 1051, 1055 (9th Cir. 2001) (“[Appellants] have the burden
of establishing that, under the totality of the circumstances, the search or seizure
violated their legitimate expectation of privacy.”).
AFFIRMED.
6
FILED
Patel v. City of Long Beach, No. 09-56699 JUL 17 2012
MOLLY C. DWYER, CLERK
Pregerson, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
I respectfully dissent. In my view, Long Beach Municipal Code Section
5.48.010 violates the Fourth Amendment on its face. See Patel v. City of Los
Angeles, No. 08-56567, — F.3d — (9th Cir. 2011) (Pregerson, J., dissenting).