John Wasson v. United States

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN M. WASSON, No. 18-35489

Plaintiff-Appellant, D.C. No. 2:15-cv-01279-SU

v. MEMORANDUM * UNITED STATES OF AMERICA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Submitted March 12, 2019**

Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.

John M. Wasson appeals pro se from the district court’s summary judgment

in his action brought under Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act

(“FTCA”), alleging claims relating to his unpatented mining site in the Umatilla

* 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). National Forest. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Nolan v. Heald Coll., 551 F.3d 1148, 1153 (9th Cir. 2009). We affirm.

The district court properly granted summary judgment on Wasson’s Fourth

Amendment claim against defendant Helberg because Wasson failed to raise a

genuine dispute of material fact as to whether he had a reasonable expectation of

privacy relating to the photography of his trailer through an unobstructed window.

See Smith v. Maryland, 442 U.S. 735, 740 (1979) (setting forth two-part test for

determining whether there is a reasonable expectation of privacy protected by the

Fourth Amendment).

The district court properly granted summary judgment on Wasson’s due

process claims against defendants Johnson, Mayte, and Reid because Wasson

failed to raise a genuine dispute of material fact as to whether he was deprived of a

constitutionally protected liberty interest or adequate procedural protections. See

United States v. Juvenile Male, 670 F.3d 999, 1012-13 (9th Cir. 2012) (identifying

requirements for substantive and procedural due process claims).

We do not consider arguments raised for the first time on appeal or matters

not specifically and distinctly raised and argued in the opening brief. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We treat Wasson’s filing (Docket Entry No. 17) as a motion to file a late

reply brief, and grant the motion. The Clerk shall file the reply brief submitted at

2 Docket Entry No. 16.

AFFIRMED.