Ara Marutyan v. Lvmpd

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 25, 2019
• Docket: 18-16989
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARA V. MARUTYAN; et al., No. 18-16989

Plaintiffs-Appellants, D.C. No. 2:16-cv-01089-MMD- GWF v.

LAS VEGAS METROPOLITAN POLICE MEMORANDUM* DEPARTMENT,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Ara V. Marutyan, Arthur Marutyan, and Diana Marutyan appeal pro se from

the district court’s judgment dismissing their 42 U.S.C. § 1983 action alleging

various constitutional claims in connection with the search and seizure of their

personal property. We have jurisdiction under 28 U.S.C. § 1291. We review de

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Applied

Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019). We affirm

in part, vacate in part, and remand.

The district court properly dismissed the Marutyans’ Second Amendment

claim because the Marutyans failed to allege sufficient facts to state a plausible

claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se

pleadings are construed liberally, plaintiff must present factual allegations

sufficient to state a plausible claim for relief); see also District of Columbia v.

Heller, 554 U.S. 570, 626 (2008) (Second Amendment right to keep and bear arms

“[is] not a right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose”).

The district court properly dismissed the Marutyans’ Fourteenth Amendment

substantive due process claim because the Marutyans failed to allege facts

sufficient to show a deprivation of a fundamental right or liberty interest. See

Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006) (“To

establish a violation of substantive due process, a plaintiff must first show a

deprivation of some fundamental right or liberty interest that is deeply rooted in

this Nation’s history and tradition.” (citation and internal quotation marks

omitted)).

The district court properly dismissed the Marutyans’ Fourth Amendment

2 18-16989 claim because the Marutyans failed to allege facts sufficient to show that defendant

Las Vegas Metropolitan Police Department lacked probable cause to search their

homes and dorm room and seize various items of personal property. See Illinois v.

Gates, 462 U.S. 213, 238 (1983) (probable cause requires a showing that there is a

“fair probability that contraband or evidence of a crime will be found in a

particular place”).

Because the district court concluded that the Marutyans sufficiently pled a

Fourteenth Amendment procedural due process claim in the original complaint and

the operative First Amended Complaint also pleads a procedural due process

claim, we vacate the judgment in part and remand to the district court so that this

action may proceed on the Fourteenth Amendment procedural due process claim

only.

We reject as meritless the Maruytans’ contention that the district court erred

in failing to address their request for a jury trial.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

3 18-16989