Walnut Hill Estate Enterprises, LLC v. City of Oroville , 452 F. App'x 756 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WALNUT HILL ESTATE No. 10-16863
ENTERPRISES, LLC; et al.,
D.C. No. 2:09-cv-00500-GEB-
Plaintiffs - Appellants, GGH
v.
MEMORANDUM *
CITY OF OROVILLE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted September 13, 2011 **
San Francisco, California
Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
Appellants brought this action against the City of Oroville, and its
employees David Goyer, Becky Fraser, Ray Sandoval, Chris Gail, and Derek
Prestesater, alleging that inspections, performed pursuant to search warrants for
code violations at the Oroville Inn and a subsequent Notice to Repair or Demolish,
violated their First, Fourth, Fifth, and Fourteenth Amendment rights. The district
court granted summary judgment on all claims. We affirm.
1. The inspection warrants were not facially invalid. It is undisputed that the
City observed the property in dilapidated conditions while responding to a fire
alarm at the Inn. Thereafter, the Fire Marshall and code inspector observed
specific code violations when they went to the Inn to talk to the maintenance man.
These plain view observations of health and safety violations are sufficient to
create probable cause for a search warrant. See Michigan v. Tyler, 436 U.S. 499,
509 (1978)(“[I]t would defy reason to suppose that firemen must secure a warrant
or consent before entering a burning structure to put out the blaze. And once in a
building for this purpose, firefighters may seize evidence of arson that is in plain
view.”); Camara v. Mun. Court of City and Cnty. of San Francisco, 387 U.S. 523,
538 (1967) (“Where considerations of health and safety are involved, the facts that
would justify an inference of ‘probable cause’ to make an inspection are clearly
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different from those that would justify such an inference where a criminal
investigation has been undertaken.”).
2. The search warrants were not excessive in scope. The affidavit provided
sufficient information for a magistrate to conclude that the entire premises had to
be searched for health and safety code violations. See Dawson v. City of Seattle,
435 F.3d 1054, 1064 (9th Cir. 2006) (“Because the warrants specified the crime to
be investigated, the specific places to be searched, and the types of evidence to be
seized, they provided sufficient guidance to the health investigators executing the
warrant.”).
3. The district court did not err in ruling that the searches were not retaliatory.
Appellants failed to produce any material fact demonstrating that retaliation for
litigation against the City was a “substantial” factor in searching the Inn. See
Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Here, the
City responded to a fire at Appellants’ property seven months after Appellants
filed their lawsuit against the City. While responding to the fire alarm, the City
observed health and safety code violations, which were the basis for searching the
Inn. There is no evidence in the record that the City conducted the inspections in
retaliation for the earlier action. See Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 922 (9th Cir. 2001) (“[C]onclusory allegations unsupported by
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factual data are insufficient to defeat the [Defendants’] summary judgment
motion.”).
4. To prevail in a § 1983 claim for a procedural due process violation, a
plaintiff must show deprivation of a protected property or liberty interest without
being given due process. Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972).
The issuance of the Notice to Repair or Demolish (Notice) without a hearing did
not violate Appellants’ procedural due process rights. Appellants do not assert that
the City seized their property nor do they assert that California law required a
hearing prior to the issuance of the Notice. Thus, Appellants failed to demonstrate
that they had a property interest in a hearing before receiving the Notice.
Appellants make no argument as to how they were deprived of a liberty
interest, thereby waiving this issue. See Greenwood v. F.A.A., 28 F.3d 971, 977
(9th Cir. 1994) (“We review only issues which are argued specifically and
distinctly in a party's opening brief. We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim, particularly when, as
here, a host of other issues are presented for review.” (citation omitted)).
5. The district court did not err in ruling that the searches and the Notice did
not violate Appellants’ substantive due process rights. The actions of the
Appellees were rationally related to a legitimate government interest. Armendariz
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v. Penman, 75 F.3d 1311, 1328 (9th Cir. 1996), overruled on other grounds by
Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 856-57 (9th Cir. 2007)
(“The City has an obvious interest in preventing safety and sanitation hazards by
enforcing the housing code.”).
6. Because the constitutional rights of Appellants were not violated, we do not
address Appellants’ remaining claims.
AFFIRMED.
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