The opinion
___________
No. 95-3647
___________
John D. Samuels; Mary Samuels,*
*
Appellees, *
*
v. *
*
David Meriwether, Individually*
and as City Manager of the *
City of Hope, Arkansas, *
* Appeal from the United States
Appellant, * District Court for the
* Western District of Arkansas.
Dennis Ramsey, Individually *
and as Mayor of the City of *
Hope, Arkansas; David Johnson,*
Individually and Vice Mayor of*
the City of Hope, Arkansas; *
J. C. Winemiller, Individually*
and as a Member of the Board *
of Directors of the City of *
Hope, Arkansas; Don Still, *
Individually and as a Member *
of the Board of Directors of *
the City of Hope, Arkansas; *
Bucky Sharp, Individually and *
as a Member of the Board of *
Directors of the City of Hope,*
Arkansas; Willie Walker, *
Individually and as a Member *
of the Board of Directors of *
the City of Hope, Arkansas; *
Doodle Franklin, Individually *
and as a Member of the Board *
of Directors of the City of *
Hope, Arkansas, *
*
Defendants, *
*
Dale Garrett, Individually and*
as an employee of the City of *
Hope, Arkansas; City of Hope, *
Arkansas, *
*
Appellants. *
____________
Submitted: April 12, 1996
Filed: August 30, 1996
____________
Before MAGILL and LOKEN, Circuit Judges, and GOLDBERG,* Judge.
____________
GOLDBERG, Judge.
Dale Garrett, Code Enforcement Officer for the City of Hope,
Arkansas, and David Meriwether, City Manager, appeal from the district
court's denial of a motion for summary judgment based on qualified
immunity. The City appeals on the merits of the denial of summary
judgment. Garrett, Meriwether and the City, among others not mentioned
here, were named as defendants in a lawsuit filed under 42 U.S.C. § 1983
by John D. Samuels and Mary Samuels. The Samuels alleged that the
destruction of their building by the City violated both the Procedural Due
Process Clause of the Fourteenth Amendment and the "reasonableness"
requirement of the Fourth Amendment. Construing all facts in favor of the
Samuels, we find that the City and its officials acted reasonably and that
no violation of federal law occurred. Accordingly, no liability attaches
to the City and City employees Garrett and Meriwether are entitled to
qualified immunity. We reverse.
I. Background
On November 2, 1993, a fire destroyed one of three apartments in a
building owned by the Samuels. Garrett, acting under the direction of City
Manager Meriwether, inspected the building and
*THE HONORABLE RICHARD W. GOLDBERG, Judge, United States
Court of International Trade, sitting by designation.
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posted a sign declaring the structure unsafe for human occupancy. The
electricity and water company discontinued service.
An exchange of correspondence ensued between the Samuels and the
City. On November 12, the City sent a letter outlining twenty conditions
found to be in violation of City ordinances. Three days later, the City
sent another letter listing additional violations including rubbish and
burnt furniture on the property. Finally, three weeks later, on December
6, the City notified the Samuels by letter that the property was in
violation of City Ordinance No. 1203, which provides for condemnation and
removal of nuisance structures. A copy of the ordinance was included with
the letter. The letter notified the Samuels that a hearing was set for
January 18, 1994 to consider condemnation of their property. The letter
was sent certified mail; the signature card shows that Mary Samuels
received the letter.
The Samuels attended this hearing, at which time the Board of
Directors of the City of Hope adopted a resolution directing the Samuels
to clean and repair the exterior of the building and to start work on the
interior within thirty days and no later than February 18. If the building
was not brought into compliance with City regulations by that date, the
City would destroy the structure at the property owner's expense. There
was a discussion regarding an extension of the February 18th deadline if
steps were taken to repair the buildings. However, the minutes proved that
the Board did not grant an extension, and found that the building
constituted a nuisance under City Ordinance No. 1203. A copy of that
resolution was mailed to the Samuels indicating that if the nuisance was
not abated within 30 days, the City would destroy the structure at the
Samuels' expense.
During the month after the hearing, Code Enforcement Officer Garrett
conducted numerous drive-by inspections and determined that the Samuels had
not complied with the Board's resolution.
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Accordingly, City Manager Meriwether ordered Garrett to proceed with
demolition, which was performed on February 22, 1994.
The Samuels filed suit in district court. They claim that they never
received notice of the Board's decision, that they had substantially
complied with the resolution, and that there was no communication between
the City and the Samuels until after the building had been destroyed. The
City sought summary judgment, claiming that the City did not violate the
Samuels' Fourth Amendment or procedural due process rights and that City
employees Meriwether and Garrett were entitled to qualified immunity. The
district court denied the motion.
II. Appellate Jurisdiction
There is an exception to the final decision rule of 28 U.S.C. § 1291
where a district court denies immunity to a government official. Mitchell
v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985). Government
officials performing discretionary functions are shielded from liability
for civil damages and are entitled to qualified immunity unless their
conduct violates "clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982).
We have jurisdiction over the present case under the emerging
standard governing the appealability of qualified immunity cases. In
Johnson v. Jones, 515 U.S. ___, 115 S. Ct. 2151, 2158 (1995), the Supreme
Court held that to be appealable, the denial of summary judgment issues
must involve application of established legal principles. A summary
judgment motion denied on the basis of disputes of "evidence sufficiency,"
concerning facts that may or may not be able to be proven at trial, are not
immediately appealable and must await final judgment. Id. at ___, 115 S.
Ct. at 2156. Johnson involved an appeal by three police officers from
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the denial of their summary judgment motion seeking qualified immunity from
plaintiff's claim that they beat him during arrest. The officers conceded
that they were present at the arrest, but they denied that they had beaten
the plaintiff or that they had been present when others beat him. The
officers claimed qualified immunity based on their contention that the
beating never occurred. The Supreme Court affirmed the Seventh Circuit's
holding that it lacked appellate jurisdiction because of the factual
dispute concerning the conduct of the officers. In Behrens v. Pelletier,
___ U.S. ___, 116 S. Ct. 834, 842 (1996), the Supreme Court clarified that
Johnson permits immediate review of qualified immunity cases in which all
the facts "which the District Court deemed sufficiently supported for
purposes of summary judgment met the Harlow standard of 'objective legal
reasonableness.'"
Unlike Johnson, the present case involves application of the law and
does not turn on the sufficiency of the evidence. The actions of the City
and its employees are not in dispute. We only need to apply legal
standards to the facts as construed in favor of the non-moving party.
In qualified immunity cases, we also have limited jurisdiction to
reach the merits. Drake v. Scott, 812 F.2d 395, 399 (8th Cir. 1987);
Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir. 1995). We may decide claims
that are "inextricably intertwined" with the district court's denial of the
summary judgment motion. Swint v. Chambers County Com'n, ___ U.S. ___, 115
S. Ct. 1203, 1211-2 (1995); Kincade v. City of Blue Springs, Mo., 64 F.3d
389, 394-95 (8th Cir. 1995). In the present case, both the qualified
immunity claim and the Procedural Due Process and Fourth Amendment claims
require application of the same constitutional tests. Thus, the analyses
of the underlying constitutional claims are subsumed in the qualified
immunity issue.
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III. Procedural Due Process
In general, procedural due process requires that a hearing before an
impartial decision maker be provided at a meaningful time, and in a
meaningful manner, prior to a governmental decision which deprives
individuals of a liberty or property interest. Mathews v. Eldridge, 424
U.S. 319, 332-3, 96 S. Ct. 893, 901-2 (1976). We have held that where a
property owner is given written notice to abate a hazard on his or her
property and has been given an opportunity to appear before the proper
municipal body considering condemnation of the property, no due process
violation occurs when the municipality abates the nuisance pursuant to the
condemnation notice. Hagen v. Traill County, 708 F.2d 347, 348 (8th Cir.
1983) (per curiam) (upheld legality of destruction of building for failure
to abate nuisance after notice and hearing).
The City destroyed the Samuels' building after a hearing at which the
Samuels presented their position to the Board, and after the Samuels were
given a 30 day period to abate the nuisances or face demolition. Without
more, no due process violation occurred. Due process does not require
additional opportunities to abate nuisances or to meet with City officials
after the notice and hearing have been provided.
Nevertheless, the Samuels dispute a number of facts, which we will
consider in turn: (1) they did not receive notice of the City's decision
to condemn; (2) they did not see a condemnation sign posted on the
property; (3) they understood that the Board had granted an extension of
time to repair the property.
The Samuels' first two claims, even if true, would not bar a grant
of summary judgment in this case. The Samuels conceded that they received
the City's notice of December 6 and that they had notice of the City's
intentions from the board meeting which they attended. Because the Samuels
had actual notice that the City
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intended to condemn the building, there was no procedural due process
violation. Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103
S. Ct. 2706, 2712 (1983) (notice to mortgagee of tax foreclosure); Hroch
v. City of Omaha, 4 F.3d 693, 696 (8th Cir. 1993) (demolition of a building
pursuant to City board condemnation).
As to the Samuels' claim that they understood that the Board had
granted an extension of time, minutes of the meeting show that the Board
did not actually extend the deadline. The Board only discussed the
possibility that it would reconsider condemnation and an extension of time
if the Samuels began work on the structure immediately. The Board kept the
property on the condemnation list, informed the Samuels of the deadline
after which demolition would be scheduled, and sent notice accordingly.
We conclude that the Samuels were provided adequate procedural
protection prior to destruction of the building. Meriwether and Garrett
acted in accordance with the Board's resolution issued pursuant to a
noticed hearing. Garrett's multiple inspections of the outside of the
property were sufficient to assess whether the Samuels had complied with
that part of the resolution pertaining to the outside of the building.
After Garrett and Meriwether determined that the Samuels had not complied
with the resolution, the City carried out demolition pursuant to the
Board's resolution. The Samuels were not entitled to any further notice
under the law. No violation of procedural due process occurred.
IV. Fourth Amendment
The Samuels contend that the City's seizure of their property
violated the Fourth Amendment. In United States v. Soldal, the Supreme
Court held that a "seizure" of property occurs when "there is some
meaningful interference with an individual's possessory interests in that
property." 506 U.S. 56, 61, 113 S. Ct. 538, 543
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(1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct.
1652, 1656 (1984)).
According to Soldal, in determining whether a government seizure
violates the Fourth Amendment, the seizure must be examined for its overall
reasonableness. 506 U.S. at 71, 113 S. Ct. at 549 ("'reasonableness is
still the ultimate standard' under the Fourth Amendment") (citations
omitted). The analysis must be based upon a careful balancing of
governmental and private interests. Soldal, 506 U.S. at 71, 113 S. Ct. at
549.
Defendants argue that if the government provides procedural due
process of law, nothing more must be done to satisfy the reasonableness
requirement of the Fourth Amendment. Flatford v. City of Monroe, 17 F.3d
162, 170 (6th Cir. 1994) (interpreting Soldal) (eviction from apartment).
We disagree.
We think that the Supreme Court's ruling in Soldal requires more.
To collapse the Fourth Amendment reasonableness standard into the
Fourteenth Amendment notice and hearing requirements in all cases is to
ignore Soldal. When a Fourth Amendment claim is brought, we need to
conduct an independent review of the seizure for reasonableness in addition
to any analysis regarding procedural due process.
Many seizures carried out in accordance with procedural due process
will undoubtedly survive Fourth Amendment review. The Supreme Court
anticipated this in Soldal. 506 U.S. at 71, 113 S. Ct. at 549. For
instance, we have held that a seizure pursuant to a court order is
reasonable under the Fourth Amendment. Coleman v. Watt, 40 F.3d 255, 263
(8th Cir. 1994) (impoundment of motor vehicle). Similarly, we have held
that seizure pursuant to a City board condemnation hearing is reasonable
under the balancing test mandated in Soldal. Hroch, 4 F.3d at 696-7
(demolition of a building pursuant to City board condemnation). These
holdings
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suggest that an abatement carried out in accordance with procedural due
process is reasonable in the absence of any factors that outweigh
governmental interests.
In the present case, the City acted pursuant to a noticed hearing and
a resolution effectuating municipal ordinances. The Samuels have failed
to raise any factual issues that advance a valid claim of unreasonable
behavior on the part of the City or its agents. Accordingly, we hold that
no violation of the Fourth Amendment occurred.
V. Conclusion
We find that no violation of the Procedural Due Process Clause of the
Fourteenth Amendment or of the Fourth Amendment occurred. We reverse the
district court's denial of summary judgment accordingly.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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