Camuglia v. The City of Albuquerque

• Decision Date: 31 May 2006
• Docket Number: No. 05-2128.,05-2128.
• Citation: 448 F.3d 1214
• Parties: Rick CAMUGLIA, doing business as Paisano's Restaurant, Plaintiff-Appellant, v. THE CITY OF ALBUQUERQUE; The Albuquerque Environmental Health Department; Guy Worthington, in his individual capacity and as an employee of the City of Albuquerque, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1214

448 F.3d 1214

Rick CAMUGLIA, doing business as Paisano's Restaurant, Plaintiff-Appellant, v. THE CITY OF ALBUQUERQUE; The Albuquerque Environmental Health Department; Guy Worthington, in his individual capacity and as an employee of the City of Albuquerque, Defendants-Appellees.

No. 05-2128.

United States Court of Appeals, Tenth Circuit.

May 31, 2006.

David M. Berlin, Duhigg, Cronin, Spring & Berlin, P.A., and Melissa Stephenson, New Mexico Victim's Rights Project, Albuquerque, NM, for the Plaintiff-Appellant.

Randy M. Autio, Assistant City Attorney (Peter S. Augh, Assistant City Attorney, with him on the brief), Albuquerque, NM, for the Defendants-Appellants, The City of Albuquerque and The Albuquerque Environmental Health Department.

Patrick D. Allen (April D. White, with him on the brief), Yenson, Lynn, Allen & Wosick, P.C., Albuquerque, NM, for the Defendant-Appellee, Guy Worthington.

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Rick Camuglia appeals a summary judgment rejecting his claim that he was denied substantive and procedural due process when his restaurant was temporarily shut down for alleged health code violations. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The evidence before the district court was as follows: On February 19, 2003, Guy Worthington, an employee of the Albuquerque Environmental Health Department (EHD), inspected Paisano's Restaurant, owned by Mr. Camuglia. Mr. Worthington cited the restaurant for several violations, including cockroaches. Mr. Camuglia told Mr. Worthington that the insect problem would be immediately remedied, and invited him to return the next morning to reinspect the premises.

Mr. Camuglia contacted Glen Waters of AACTION Pest Control, who had applied pesticides regularly at Paisano's for some time. The following morning Mr. Waters began applying ULD 300, a pesticide that is approved for use in restaurants but can be hazardous to humans. The "Directions for Use" on the product label begin: "Do not apply directly to food. Food should be removed or covered during treatment. Do not apply while food processing is underway. All food processing surfaces and equipment should be covered or washed with an effective cleaning compound followed by a potable water rinse." Aplt. App. at 58. The directions also state: "Close room or warehouse and shut off all ventilating systems.... Do not remain in treated areas after application, and leave room closed for at least one hour. Ventilate thoroughly before occupants are allowed to re-enter." Id.

Mr. Waters testified in his deposition that no ventilating systems were on and there was nobody in the restaurant when he began applying the ULD 300; that it was his practice to close all doors in a building before he began spraying; and that he did not see any exposed food in Paisano's. He also testified that although the ULD 300 spray settled on food-preparation areas and tables, Paisano's employees knew that it was their responsibility to "wash everything... after we left. That was a standing rule that we had always talked about, before we ever did anything in that restaurant.... By that time, they pretty much knew what the deal was. This wasn't the first time I was there to do that kind of work." Aplt.App. at 86. "[A]nybody that I work with there," he continued, "knew not to be in there when I was doing this.... They knew they couldn't be in there for at least an hour. I told them two hours just to be on the safe side." Id. He added that while he was spraying he did not see anyone in the restaurant until Mr. Worthington entered.

Mr. Worthington arrived after Mr. Waters had begun applying the pesticide. His account contradicts Mr. Waters's account in several respects. He swore in an affidavit that

the back door of the facility was wide open and people were freely entering and exiting the facility without regard for the presence of chemicals. No notice was posted of the on-going fumigation. No effort had been made to cover food, food preparation areas, tables, or even the salt and pepper shakers. Out of concern for public safety, I requested that all employees exit the restaurant and asked to see the warning label for the pesticide being used.

Aplt.App. at 53-54.

Mr. Worthington concluded that the ULD 300 was not being applied in accordance with its warning label. He contacted his supervisor and together they decided to suspend Paisano's food-service permit temporarily. See Albuquerque, N.M., Code of Ordinances ch. 9, § 9-6-1-13(A) (1988) (hereinafter "Albuquerque Code") ("It shall be unlawful for any person to operate a food-service or food processing establishment within the city who does not possess a valid permit issued to him by the enforcement authority"); id. at § 9-6-1-13(C) ("Permits may be suspended by the enforcement authority for failure of the holder to comply with the requirements of [the Code] or of other applicable laws, regulations or ordinances."). He then returned to his office and prepared an inspection report which, in accordance with EHD policy, was faxed to local media outlets. See id. at § 9-6-1-12(C) ("Whenever an inspection of a food-service ... establishment is made, the findings shall be recorded on an enforcement authority inspection form.... The completed inspection report form is a public document that shall be made available for public disclosure at the enforcement authority's office to any person who requests it."). As a result, members of the media came to Paisano's that day and reported on the suspension of Paisano's permit. The following day, February 21, 2003, Mr. Worthington reinspected Paisano's and reactivated its permit after concluding that any food that had been exposed to the pesticide had been discarded and that the food preparation surfaces had been cleaned.

Also on February 21, Steve Baca, an inspector for the New Mexico Department of Agriculture, which has oversight responsibility for pesticide application, conducted an investigation to see whether the ULD 300 had been properly applied. His report repeats the essential facts set forth above: (1) Mr. Worthington was concerned that the ULD 300 was not being properly applied; (2) it was Paisano's standard practice to wash all food preparation surfaces after application of the pesticide; (3) any uncovered food had already been thrown out; and (4) during past applications Mr. Waters had discussed with Paisano's employees that they must remain outside during the application of the pesticide and clean the premises after application, but this was not discussed before this application. In addition, Mr. Baca took three swab samples from within the restaurant. He testified in his deposition that pesticide was "detected on the kitchen electric box and the salad area light fixture, but not on the specials board in the dining area." Aplt.App. at 110. He did not test the areas that he was told had been cleaned, "like food prep areas, dishes, and any areas close to the food." Id. at 109. His inspection report states that he "noted a violation because the operator should have clearly told Mr. Worthington and the restaurant staff that nobody was allowed into the treated area for one hour." Aplt.App. at 65. When asked at his deposition whether anyone had entered before one hour had expired, he responded: "That's what it sounded like. No specific times were given, but it sounded like pesticide application was stopped, [employees] were showing up right around that time or soon after, that they were told to go in and clean up, and that was about it pretty much." Id. at 63. He further testified that he believed that it was Mr. Worthington who had directed the employees to go into the restaurant to clean, but faulted Mr. Waters because "he needed to make it clear that nobody be in there, ...." Id.

Mr. Camuglia filed suit in the United States District Court for the District of New Mexico. His Second Amended Complaint for Deprivation of Property Without Due Process alleges three causes of action. The first, which is the only one at issue on appeal, raises a claim under 42 U.S.C. § 1983 that the City of Albuquerque (City), EHD, and Mr. Worthington deprived him of due process of law. It asserts that the application of the pesticide was not improper, and that Mr. Worthington acted "without permitting Plaintiff or its representatives to contest the alleged violations, something they had a right to do as a matter of law." Aplt.App. at 24. It further asserts that "Worthington's acts were intentional, willful and wanton and meant to deprive Plaintiff of property rights...." Id. at 25. In their motion for summary judgment the defendants treated this cause of action as alleging deprivations of both procedural and substantive due process. Mr. Camuglia did the same in his response memorandum, and the district court also addressed both claims. We will therefore treat the complaint the same way. (The second cause of action makes the same allegations against the same defendants under the due process clause of the New Mexico Constitution; and the third cause of action is a libel claim against an EHD employee. The district court granted summary judgment on the state constitutional claim; and the libel claim was dismissed by Mr. Camuglia with prejudice.)

Mr. Worthington moved for summary judgment on the § 1983 claims. He asserted that he was entitled to qualified immunity because there was no constitutional violation and, in the alternative, no violation of clearly settled law. The district court agreed on both grounds and granted the motion.

At a later hearing the City orally moved for summary judgment. Mr. Camuglia conceded that "[t]he case law is clear, if the underlying individual's out, then the municipality is also out." Aplt.App. at 205. Shortly thereafter the district court granted summary judgment to the City (apparently treating EHD and the City as the same party, a course we also...