255 F.3d 734 (9th Cir. 2001), 99-16828, Zimmerman v. City of Oakland

Docket Nº:99-16828
Citation:255 F.3d 734
Party Name:RONALD ZIMMERMAN; STEFFI ZIMMERMAN; JIM HINES; JIM HINES FOUNDATION, A NON-PROFIT CALIFORNIA CORPORATION, PLAINTIFFS-APPELLANTS v. CITY OF OAKLAND; COUNCIL OF OAKLAND; OAKLAND POLICE DEPARTMENT; LEONARD WHITE, SERGEANT; JANE BRUNNER, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; JOHN A. RUSSO, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND
Case Date:June 21, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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255 F.3d 734 (9th Cir. 2001)

RONALD ZIMMERMAN; STEFFI ZIMMERMAN; JIM HINES; JIM HINES FOUNDATION, A NON-PROFIT CALIFORNIA CORPORATION, PLAINTIFFS-APPELLANTS

v.

CITY OF OAKLAND; COUNCIL OF OAKLAND; OAKLAND POLICE DEPARTMENT; LEONARD WHITE, SERGEANT; JANE BRUNNER, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; JOHN A. RUSSO, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; NANCY J. NADEL, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; DICK OPINION SPEES, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; IGNACIO DE LA FUENTE, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; NATE MILEY, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; LARRY REID, INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL; HENRY CHANG, JR., INDIVIDUALLY AND AS A MEMBER OF THE OAKLAND CITY COUNCIL, DEFENDANTS-APPELLEES.

No. 99-16828

United States Court of Appeals, Ninth Circuit

June 21, 2001

Argued and Submitted February 15, 2001--San Francisco, California

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[Copyrighted Material Omitted]

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Thomas E. Ho'okano, Esq., Law Offices of Thomas E. Ho'okano, San Francisco, California, for the plaintiffs-appellants.

Claudia Leed, Office of the City Attorney, Oakland, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding D.C. No. CV-98-03245-CW

Before: Alfred T. Goodwin, Procter Hug, Jr., and William A. Fletcher, Circuit Judges.

The opinion of the court was delivered by: W. Fletcher, Circuit Judge

William A. Fletcher

OPINION

Ronald Zimmerman, Steffi Zimmerman, Jim Hines, and the Jim Hines Foundation (collectively, "Plaintiffs") appeal the dismissal of their complaint against the City of Oakland and various individuals employed by the city (collectively, "Defendants"). We reverse in part, affirm in part, and remand.

I.

According to the complaint, the Zimmermans own property in Oakland that is zoned for light industrial use. The dispute in this case revolves around a reconditioned transit bus stored on that property for the use of the Jim Hines Foundation, a non-profit organization whose office is also located on the property. On March 27, 1998, Sergeant Leonard White and other Oakland police officers entered the property to search for derelict vehicles. The officers tagged several vehicles, including the bus, and mailed the Zimmermans a notice stating that the city considered the vehicles public nuisances and would seize them in ten days.

Following instructions provided in the notice, Mr. Zimmerman requested a pre-seizure hearing, which was scheduled to occur at the Zimmerman property on April 23, 1998. On that date, Sergeant White arrived and announced that he would be the hearing officer. Plaintiffs contend that instead of conducting a hearing, White began a warrantless search of the property and summarily directed that several vehicles (including the bus) be towed and scrapped. In their somewhat prolix complaint, Plaintiffs allege, among other things, that "[w]ithout taking any testimony . . . making any factual determinations . . . and without making any findings . . . Sergeant White ordered the bus seized. [The] seizure was not supported by findings

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as required by law and was totally devoid of substantial evidence to support it." White "never stated the reasons why the vehicles were being seized or how the condition he found objectionable could be cured. He made no findings . . . ." In so doing, White "utterly failed to perform the duties given to him under state and local law." Further,"Plaintiff [sic] believes that the actions taken were retaliatory in nature and constitute selective and discriminatory illegal enforcement of the ordinances complained of herein."

Plaintiffs brought suit in federal court under 42 U.S.C. §§ 1983. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. The district court granted the motion and dismissed the complaint.

Plaintiffs make three arguments on appeal. First, they contend that Defendants violated the Due Process Clause of the Fourteenth Amendment by seizing the bus in the manner in which they did. Second, they contend that both of the entries onto the property violated the Fourth Amendment. Finally, they contend that the district court improperly denied their motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e).

We review dismissals under Rule 12(b)(6) de novo , accepting as true all well-pleaded allegations of fact in the complaint and construing them in the light most favorable to the plaintiffs. See Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). Dismissal for failure to state a claim is appropriate if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). We review denials of Rule 59(e) motions for abuse of discretion. See Pasatiempo by Pasatiempo v. Aizawa, 103 F.3d 796, 801 (9th Cir. 1996).

II.

Plaintiffs first contend that the seizure of their bus violated the Due Process Clause of the Fourteenth Amendment. They contend that their right to due process was violated because the notice they received from the police department and the hearing conducted by Sergeant White were inadequate. They further contend their due process rights were violated because the ordinance under which the hearing was conducted was unsupported or preempted by state law, and did not apply to the bus.

Defendants argued in the district court, and argue here, that there is no constitutional due process violation because the state has provided adequate post-deprivation remedies under state law for the seizure of the bus. Relying on Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984), the district court agreed, finding that postdeprivation remedies available under state and city law were constitutionally adequate, and holding that there was therefore no violation of due process.

The district court was correct to rely on Parratt and Hudson for the proposition that, in certain circumstances, a state can cure what would otherwise be an unconstitutional deprivation of "life, liberty or property" by providing adequate post-deprivation remedies. The question, however, is what those circumstances are. The facts of Parratt and Hudson, the Court's explanation in Hudson, and the Court's later holding and explanation in Zinermon v. Burch, 494 U.S. 113 (1990),

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assist us in reaching an answer.

The plaintiff in Parratt was a state prisoner. He claimed that he had ordered hobby materials through the mail and that prison...

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