Levine v. City of Alameda

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD LEVINE, 

Plaintiff-Appellant,

v. No. 06-15480

CITY OF ALAMEDA, a California  D.C. No.

CV-04-01780-CRB

Charter City; JAMES M. FLINT, both

individually and as City Manager

for the City of Alameda,

Defendants-Appellees.



EDWARD LEVINE, 

Plaintiff-Appellee,

v. No. 06-15481

CITY OF ALAMEDA, a California  D.C. No.

CV-04-01780-CRB

Charter City; JAMES M. FLINT, both

individually and as City Manager OPINION

for the City of Alameda,

Defendants-Appellants.



Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

January 16, 2008—San Francisco, California

Filed May 13, 2008

Before: Procter Hug, Jr., Mary M. Schroeder, and

Richard R. Clifton, Circuit Judges.

5391

5392 LEVINE v. CITY OF ALAMEDA

Opinion by Judge Hug

5394 LEVINE v. CITY OF ALAMEDA

COUNSEL

Roger A. Carnagey, Oakland, California, for the plaintiff-

appellant/cross-appellee.

Linda A. Tripoli, Tiburon, California, for the defendants-

appellees/cross-appellants.

OPINION

HUG, Circuit Judge:

Edward Levine filed this action under 42 U.S.C. § 1983

against the City of Alameda (“City”) and James M. Flint, both

individually and as City Manager, alleging that the defendants

violated his due process rights under the Fourteenth Amend-

ment. On February 17, 2004, Flint told Levine, a property

manager for the City, that he was going to be laid off. Levine

wrote Flint a letter in which he requested a pretermination

hearing regarding his lay off. Levine believed that the lay off

was a pretext and that he was being terminated because Flint

disliked him.

After receiving the letter, Flint gave it to the City’s Human

Resources Director, Karen Willis, and told her to make sure

that Levine’s due process rights were respected. Willis then

LEVINE v. CITY OF ALAMEDA 5395

wrote Levine a letter stating that he was not entitled to a pre-

termination hearing under his union contract because he was

being laid off and not discharged for cause. In the letter, Wil-

lis offered to meet with Levine to discuss lay off procedures

and retirement benefits. Willis and Levine later ran into each

other in the Human Resources Department where they had a

five-minute talk and visited in general according to Willis.

After the parties filed cross motions for summary judg-

ment, the district court granted summary judgment in part (1)

for Levine, finding that his procedural due process rights were

violated and he was entitled to a full evidentiary hearing

before a neutral third-party, and (2) for defendants, finding

that Flint was not personally liable based on qualified immu-

nity and that the City was not liable as a municipality. Both

parties appealed. We affirm the district court.

I. Standard of Review

This court reviews de novo a district court’s decision on

cross motions for summary judgment. Children’s Hosp. Med.

Ctr. v. California Nurses Ass’n, 283 F.3d 1188, 1191 (9th Cir.

2002). We view the evidence in the light most favorable to the

nonmoving party and determine whether there are any genu-

ine issues of material fact and whether the district court cor-

rectly applied the substantive law. Chevron USA, Inc. v.

Cayetano, 224 F.3d 1030, 1037 (9th Cir. 2000).

II. Due Process

The district court did not err in granting summary judgment

for Levine in part and finding that the defendants violated his

Fourteenth Amendment due process rights under 42 U.S.C.

§ 1983. To establish a § 1983 claim, a plaintiff must show that

an individual acting under the color of state law deprived him

of a right, privilege, or immunity protected by the United

States Constitution or federal law. Lopez v. Dept. of Health

Servs., 939 F.2d 881, 883 (9th Cir. 1991). To establish a due

5396 LEVINE v. CITY OF ALAMEDA

process violation, a plaintiff must show that he has a protected

property interest under the Due Process Clause and that he

was deprived of the property without receiving the process

that he was constitutionally due. Clements v. Airport Author-

ity of Washoe County, 69 F.3d 321, 331 (9th Cir. 1995).

[1] In this case, the district court properly found that Levine

was a civil servant who had a property interest in continued

employment under the Due Process Clause. See id.; Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985). As

an employee with a property interest under the Due Process

Clause, Levine was entitled to have a hearing before his lay

off to allow him to present his side of the story. See Clements,

69 F.3d at 331-32; Loudermill, 470 U.S. at 542-43. Defen-

dants refused to provide a hearing. The Director of Human

Resources’ offer to meet with Levine to discuss lay off proce-

dure, and the random five-minute encounter between Levine

and the Director, failed to give Levine a meaningful opportu-

nity to respond to the lay off decision. See Clements, 69 F.3d

at 331-32. Thus, Levine’s due process rights were violated by

the failure to provide a pretermination hearing. See id.;

Loudermill, 470 U.S. at 542-45.

[2] Because Levine’s due process rights were violated, it

was not improper for the district court to order a full evidenti-

ary hearing to remedy the violation. See Brady v. Gebbie, 859

F.2d 1543, 1551 (9th Cir. 1988) (stating that the appropriate

remedy for the deprivation of due process rights is to order

the process which was due). The Supreme Court has held that

an employee with a property interest is entitled to a limited

pretermination hearing which is to be followed by a more

comprehensive post-termination hearing. Loudermill, 470

U.S. at 547. Levine was entitled to a full post-termination

hearing because there was no way to give Levine the process

that he had been due, which was an opportunity to respond

before the termination occurred. Cf. Loudermill, 470 U.S. at

547 n.12 (noting that the adequacy of pretermination and

post-termination hearings are interrelated and that the scope

LEVINE v. CITY OF ALAMEDA 5397

of one affects the scope of the other). Thus, it was reasonable

for the district court to order that a full evidentiary hearing be

held. See id. at 547.

[3] It was also not improper for the district court to order

that the hearing be held before a neutral third-party. This

court has held that for post-termination hearings an impartial

decisionmaker is required. Walker v. City of Berkeley, 951

F.2d 182, 184 (9th Cir. 1991). The district court made a find-

ing that persons working for the City would not be suffi-

ciently neutral in this case after the extensive litigation

between the City and Levine. Because this finding was not

clearly erroneous, and an impartial decisionmaker is required,

the district court did not err in ordering that a neutral third-

party preside over the hearing. See id.

III. Qualified Immunity

[4] The district court properly found that Flint was not per-

sonally liable for violating Levine’s due process rights based

on qualified immunity. Under the defense of qualified immu-

nity, a government official is immune from civil damages

unless his conduct violates a clearly established right of which

a reasonable person would have known. Long v. City and

County of Honolulu, 511 F.3d 901, 905-06 (9th Cir. 2007).

Determining whether a public official is entitled to qualified

immunity involves a two-part analysis. Saucier v. Katz, 533

U.S. 194, 199 (2001). First, we must determine whether the

official violated a constitutional right. Id. at 201. Second, we

must determine whether the right was clearly established such

that a reasonable official would known that he was engaging

in unlawful conduct. Aguilera v. Baca, 510 F.3d 1161, 1167

(9th Cir. 2007). If an official reasonably believed that his con-

duct was lawful, qualified immunity applies. Jeffers v. Gomez,

267 F.3d 895, 910 (9th Cir. 2001).

[5] In this case, although defendants violated Levine’s due

process rights by failing to provide a hearing, qualified immu-

5398 LEVINE v. CITY OF ALAMEDA

nity applies because Flint reasonably believed that his conduct

was lawful. See Kulas v. Valdez, 159 F.3d 453, 456 (9th Cir.

1998). As a supervisor, Flint can be held liable in his individ-

ual capacity only if he set “in motion a series of acts by oth-

ers, or knowingly refused to terminate [such acts], which he

knew or reasonably should have known, would cause others

to inflict the constitutional injury.” See Larez v. Los Angeles,

946 F.2d 630, 646 (9th Cir. 1991) (internal brackets omitted).

Flint forwarded Levine’s letter requesting a pretermination

hearing to Willis and expressly told her to ensure that

Levine’s due process rights were respected. Flint, therefore,

took action to protect Levine’s due process rights and there is

no evidence that Flint knew or should have known that Willis

would deprive Levine of his due process rights by improperly

denying his request. Even if Flint had expressly approved

Willis’s actions, he would still be entitled to qualified immu-

nity because Levine’s union contract stated he was not enti-

tled to a pretermination hearing if laid off and, thus, a

reasonable official in his position could have believed that his

conduct was lawful. Thus, because he instructed Willis to

respect Levine’s due process rights, and it was reasonable for

him to believe that Levine was not entitled to a pretermination

hearing, Flint is immune from suit based on qualified immu-

nity. See id.; Kulas, 159 F.3d at 456.

IV. Municipal Liability

[6] The district court also properly determined that the City

was not liable as a municipality under Monell v. Dep’t of Soc.

Servs. of New York, 436 U.S. 658 (1978). A city can be sued

for monetary damages under 42 U.S.C. § 1983 if the constitu-

tional violation was a product of a policy, practice, or custom

adopted and promulgated by the city’s officials. Id. at 690-91.

To establish liability, a plaintiff must establish that he was

deprived of a constitutional right and that the city had a pol-

icy, practice, or custom which amounted to “deliberate indif-

ference” to the constitutional right and was the “moving

LEVINE v. CITY OF ALAMEDA 5399

force” behind the constitutional violation. Van Ort v. Estate

of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).

[7] In this case, the district court properly determined that

the City is not liable under 42 U.S.C. § 1983. Levine pro-

duced no evidence that the City had a policy that amounted

to deliberate indifference to his constitutional due process

rights, and was the moving force behind a violation of those

rights. See Mabe v. San Bernardino County, Dep’t of Pub.

Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001). Levine con-

tended that Flint’s single act of terminating him represented

a policy amounting to deliberate indifference to his due pro-

cess rights. Because there was no evidence that Flint had any

policymaking authority over personnel decisions, and no evi-

dence of a policy or custom otherwise that amounted to a

deliberate indifference to his due process rights, the district

court properly granted summary judgment in part for the City

on this issue. See id.

AFFIRMED.