NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHRISTOPHER LULL; AUTOTEK, INC., No. 20-16599
Plaintiffs-Appellants, D.C. No. 2:16-cv-01093-KJM-CKD v.
COUNTY OF SACRAMENTO; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding
Submitted January 14, 2022** Pasadena, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,*** District Judge. Plaintiffs Christopher Lull and his smog-check company, Autotek, brought
claims for damages under 42 U.S.C. § 1983 alleging that the County of
* 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). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Sacramento, individual County Defendants, and the Sacramento Municipal Utility
Department (SMUD) violated their First Amendment, Fourth Amendment, and due
process rights when Defendants caused electrical service to be disconnected at
Plaintiffs’ property. Plaintiffs appeal the district court’s grant of summary
judgment to Defendants on the First Amendment claims, dismissal of the due
process and Fourth Amendment claims, and denial of leave to amend.1 We affirm.
1. The district court correctly held that Plaintiffs had presented no evidence
that Supervising Deputy County Counsel June Powells-Mays had any intent to
interfere with Plaintiffs’ First Amendment rights or that Code Enforcement
Manager Tammy Derby did anything that could amount to retaliation. See
Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999).
As for Chief Building Official Brian Washko and Violations Supervisor Robin
Rasmussen, the district court held that Plaintiffs had presented sufficient evidence
to create a triable issue of fact on their retaliatory intent. But the court properly
concluded that Washko and Rasmussen were entitled to qualified immunity in light
1 Defendants’ motion to dismiss County-related parties who are not participants in the appeal, which Plaintiffs have not opposed, is GRANTED. The County Planning Department, the County Building Department, County Counsel, the County Community Development Department, the County Board of Supervisors, the County Clerk of the Board, the County Sheriff’s Department, the County Revenue and Recovery Department, Lori Moss, Leighann Moffitt, Bob Ivie, John Muzinich, Scott Purvis, Wayne Eastman, Paul Munoz, Cyndi Lee, Florence Evans, Russ Williams, and Jared Wickliff are hereby dismissed from this appeal.
2 of Plaintiffs’ failure to point to any clearly established law—or, to offer any
response at all—after Defendants asserted qualified immunity. On appeal,
Plaintiffs now argue that “an individual ha[s] a clearly established right to be free
of intentional retaliation by government officials based upon that individual’s
constitutionally protected expression.” Soranno’s Gasco, Inc. v. Morgan, 874 F.2d
1310, 1319 (9th Cir. 1989). But Plaintiffs offer no explanation for their failure to
make this argument in the district court or reason that we should excuse their
forfeiture on appeal. Accordingly, we adhere to our general rule that issues not
raised in the district court “will not be considered for the first time on appeal.” In
re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014).
The district court also correctly concluded that the County itself could not be
held liable because Plaintiffs had shown no evidence of an unconstitutional County
policy or practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)
(“Congress did not intend municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a constitutional tort.”). Indeed,
Plaintiffs conceded in the district court that the County Defendants’ challenged
actions “deviated from their typical procedures.” We therefore affirm the district
court’s grant of summary judgment to the County Defendants on the First
Amendment retaliation claim.
2. The district court correctly held that Plaintiffs had a vested interest in
3 continued electrical services, but that they were not denied due process in this case.
See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978).
Plaintiffs were entitled to “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action [to
disconnect their electricity] and afford them an opportunity to present their
objections.” Id. at 13 (quoting Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306,
314 (1950)). It is undisputed that Lull received many notices of his code
violations, and as early as January 2014 (nearly a year before the disconnection) he
received notice that his electrical power could be disconnected if he failed to bring
the property into compliance within 30 days. He received letters again on
September 16 and 26 warning him that his non-compliance could result in the
disconnection of electrical service. He received stop-work orders on December 8,
10, and 22, but he did not stop work. He received a final notice and order of
disconnection of electricity on December 23, 2014, and his electricity was
disconnected on December 24, 2014.
Plaintiffs’ primary argument on appeal is that they were entitled to a pre-
deprivation hearing, but they did not argue that in the district court. Instead,
Plaintiffs’ only argument in opposition to SMUD’s motion for summary judgment
was that SMUD had defied its own regulations by failing to provide seven days’
written notice before disconnecting their electricity. SMUD’s Rule and Regulation
4 11 does require seven days’ notice in general, but it also provides that “[i]f, in
SMUD’s judgment, operation of customer’s equipment constitutes a dangerous
condition, SMUD may discontinue service without notice.” The district court
correctly concluded that SMUD complied with Rule 11 when it disconnected
Plaintiffs’ electricity in reliance on the County employees’ determination that there
was a dangerous condition at the property. Because Plaintiffs offered the district
court no other evidence or argument that SMUD had deprived them of due process,
we decline to address their various new arguments on appeal. See In re Mortg.,
754 F.3d at 780.
3. Plaintiffs’ argument that SMUD’s disconnection of their electricity was a
warrantless seizure under the Fourth Amendment is unsupported. Plaintiffs cite
several cases indicating that, when state law prohibits the termination of utility
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHRISTOPHER LULL; AUTOTEK, INC., No. 20-16599
Plaintiffs-Appellants, D.C. No. 2:16-cv-01093-KJM-CKD v.
COUNTY OF SACRAMENTO; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding
Submitted January 14, 2022** Pasadena, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,*** District Judge. Plaintiffs Christopher Lull and his smog-check company, Autotek, brought
claims for damages under 42 U.S.C. § 1983 alleging that the County of
* 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). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Sacramento, individual County Defendants, and the Sacramento Municipal Utility
Department (SMUD) violated their First Amendment, Fourth Amendment, and due
process rights when Defendants caused electrical service to be disconnected at
Plaintiffs’ property. Plaintiffs appeal the district court’s grant of summary
judgment to Defendants on the First Amendment claims, dismissal of the due
process and Fourth Amendment claims, and denial of leave to amend.1 We affirm.
1. The district court correctly held that Plaintiffs had presented no evidence
that Supervising Deputy County Counsel June Powells-Mays had any intent to
interfere with Plaintiffs’ First Amendment rights or that Code Enforcement
Manager Tammy Derby did anything that could amount to retaliation. See
Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999).
As for Chief Building Official Brian Washko and Violations Supervisor Robin
Rasmussen, the district court held that Plaintiffs had presented sufficient evidence
to create a triable issue of fact on their retaliatory intent. But the court properly
concluded that Washko and Rasmussen were entitled to qualified immunity in light
1 Defendants’ motion to dismiss County-related parties who are not participants in the appeal, which Plaintiffs have not opposed, is GRANTED. The County Planning Department, the County Building Department, County Counsel, the County Community Development Department, the County Board of Supervisors, the County Clerk of the Board, the County Sheriff’s Department, the County Revenue and Recovery Department, Lori Moss, Leighann Moffitt, Bob Ivie, John Muzinich, Scott Purvis, Wayne Eastman, Paul Munoz, Cyndi Lee, Florence Evans, Russ Williams, and Jared Wickliff are hereby dismissed from this appeal.
2 of Plaintiffs’ failure to point to any clearly established law—or, to offer any
response at all—after Defendants asserted qualified immunity. On appeal,
Plaintiffs now argue that “an individual ha[s] a clearly established right to be free
of intentional retaliation by government officials based upon that individual’s
constitutionally protected expression.” Soranno’s Gasco, Inc. v. Morgan, 874 F.2d
1310, 1319 (9th Cir. 1989). But Plaintiffs offer no explanation for their failure to
make this argument in the district court or reason that we should excuse their
forfeiture on appeal. Accordingly, we adhere to our general rule that issues not
raised in the district court “will not be considered for the first time on appeal.” In
re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014).
The district court also correctly concluded that the County itself could not be
held liable because Plaintiffs had shown no evidence of an unconstitutional County
policy or practice. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)
(“Congress did not intend municipalities to be held liable unless action pursuant to
official municipal policy of some nature caused a constitutional tort.”). Indeed,
Plaintiffs conceded in the district court that the County Defendants’ challenged
actions “deviated from their typical procedures.” We therefore affirm the district
court’s grant of summary judgment to the County Defendants on the First
Amendment retaliation claim.
2. The district court correctly held that Plaintiffs had a vested interest in
3 continued electrical services, but that they were not denied due process in this case.
See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978).
Plaintiffs were entitled to “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action [to
disconnect their electricity] and afford them an opportunity to present their
objections.” Id. at 13 (quoting Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306,
314 (1950)). It is undisputed that Lull received many notices of his code
violations, and as early as January 2014 (nearly a year before the disconnection) he
received notice that his electrical power could be disconnected if he failed to bring
the property into compliance within 30 days. He received letters again on
September 16 and 26 warning him that his non-compliance could result in the
disconnection of electrical service. He received stop-work orders on December 8,
10, and 22, but he did not stop work. He received a final notice and order of
disconnection of electricity on December 23, 2014, and his electricity was
disconnected on December 24, 2014.
Plaintiffs’ primary argument on appeal is that they were entitled to a pre-
deprivation hearing, but they did not argue that in the district court. Instead,
Plaintiffs’ only argument in opposition to SMUD’s motion for summary judgment
was that SMUD had defied its own regulations by failing to provide seven days’
written notice before disconnecting their electricity. SMUD’s Rule and Regulation
4 11 does require seven days’ notice in general, but it also provides that “[i]f, in
SMUD’s judgment, operation of customer’s equipment constitutes a dangerous
condition, SMUD may discontinue service without notice.” The district court
correctly concluded that SMUD complied with Rule 11 when it disconnected
Plaintiffs’ electricity in reliance on the County employees’ determination that there
was a dangerous condition at the property. Because Plaintiffs offered the district
court no other evidence or argument that SMUD had deprived them of due process,
we decline to address their various new arguments on appeal. See In re Mortg.,
754 F.3d at 780.
3. Plaintiffs’ argument that SMUD’s disconnection of their electricity was a
warrantless seizure under the Fourth Amendment is unsupported. Plaintiffs cite
several cases indicating that, when state law prohibits the termination of utility
services without good cause, there arises a “legitimate claim of entitlement” in the
continuation of those services under the Due Process Clause. See Memphis Light,
436 U.S. at 11-12. But that does not mean that termination of utility services for
good cause under state law is a Fourth Amendment seizure.
As an initial matter, it is not clear whether the property interest in continued
electricity created by state law is the kind of property that can be “seized” under
the Fourth Amendment. “A ‘seizure’ of property occurs when there is some
meaningful interference with an individual’s possessory interests in that property.”
5 United States v. Jacobsen, 466 U.S. 109, 113 (1984). We have explained that “[a]
possessory interest involves ‘[t]he fact of having or holding property in one’s
power; the exercise of dominion over property.’” United States v. JP Morgan
Chase Bank Acct., 835 F.3d 1159, 1165-66 (9th Cir. 2016) (quoting Possession,
Black’s Law Dictionary (10th ed. 2014)). Plaintiffs have not explained why
disconnecting their electricity meaningfully interferes with their having, holding,
or exercising dominion over their property.
Any property interest in continued electricity that might be cognizable under
the Fourth Amendment extends only as far as state law provides. Because the
disconnection of Plaintiffs’ electricity comported with state law, there was no
violation of a protected property interest that could count as a Fourth Amendment
seizure. As explained above, SMUD complied with its own regulations when it
relied on the County employees’ instructions to disconnect Plaintiffs’ electricity
because of a dangerous condition. And the Sacramento County Building Code
authorizes building officials, such as the County Defendants, to order the
disconnection of utilities not only in case of emergency, as Plaintiffs contend, but
also when “[t]he building owner/occupant knowingly fails to comply with a notice
or order.” Sacramento, Cal., Code ch. 16.02.080 § 112.3. Plaintiffs cite various
other state and local codes authorizing utility disconnection in case of emergency
or to abate a public nuisance, but they offer no reason to conclude that those
6 provisions define the only situations in which electricity can be disconnected.
Because Plaintiffs’ electricity was disconnected for good cause under state law,
they were not deprived of any state-protected property interest at all, even if an
electricity shutoff could be considered an unlawful seizure under the Fourth
Amendment on some other set of facts. We therefore affirm the district court’s
dismissal of the Fourth Amendment claim.
4. Plaintiffs’ argument that the district court erred in abstaining from certain
claims, and then erred in denying leave to amend to add them back, is inadequately
presented on appeal. See Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu,
626 F.3d 483, 487 (9th Cir. 2010) (“[W]e won’t ‘consider matters on appeal that
are not specifically and distinctly argued in appellant’s opening brief.’” (quoting
Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986))). Plaintiffs’
opening brief does not describe the claims the district court abstained from, nor
does it offer any reason for reversal beyond “bare assertions with no supporting
argument.” Id. (cleaned up). We decline to address this undeveloped argument.
AFFIRMED.