Soffer v. City of Costa Mesa

798 F.2d 361
Court of Appeals for the Ninth Circuit·Decided August 22, 1986·No. No. 85-5843·Published·Cited by 12 cases

Opinion

FARRIS, Circuit Judge:

Sidney Soffer, in propria persona, appeals from judgments granted at partial summary judgment and at trial in the district court. The case dates from April 9, 1980, when Soffer’s automobile was towed from a public street by the City of Costa Mesa, California.

I.

The facts and procedural history of the case are set out in the district court’s opinion, published at 607 F.Supp. 975 (C.D.Cal. 1985) . After the partial summary judgment reported in the published opinion, the court held a bench trial on the remaining issues. The court held that the City’s post-tow procedures were an unconstitutional violation of due process. It held further that Soffer did not offer any proof of damages and that even had due process been complied with, the result of the April 11, 1980 hearing would have been the same. Because due process rights are “absolute,” however, the court awarded Soffer nominal damages of one dollar under Carey v. Pipkus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978), denying Soffer’s request for punitive damages and attorney’s fees. See generally Draper v. Coombs, 792 F.2d 915, 922-924 (9th Cir. 1986) . The court also held that defendant Harbor Towing was acting in good faith pursuant to orders from the City and was therefore not liable for damages.

II.

A. Pre-Tow Hearing

Soffer contends that due process requires a hearing before the City may tow an automobile. In our de novo review of this question of law, United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, — U.S.—, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), we agree with both the district court’s analysis and its result. 607 F.Supp. at 980-83. The court thoroughly discussed the factors set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), [363] and reached a result in accord with the other circuits. Cokinos v. District of Columbia, 728 F.2d 502, 502-03 (D.C.Cir. 1983); Sutton v. City of Milwaukee, 672 F.2d 644, 645-47 (7th Cir.1982). Because we agree that there is no right to a pre-tow hearing, there are no issues remaining concerning the constitutionality of the old ordinance. Soffer correctly acknowledges that unless we remand, which we do not, the issue is moot.

B. Award of Damages

Soffer did not prove, or offer to prove, any damages at trial. Nominal damages were appropriate and not an abuse of discretion. See Carey v. Piphus, 435 U.S. 247, 267, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981); Smith v. Wade, 461 U.S. 30, 51, 103 S.Ct. 1625, 1637, 75 L.Ed.2d 632 (1983); Wiggins v. Rushen, 760 F.2d 1009, 1011-12 (9th Cir.1985).

C. Dismissal of the Individual Defendants.

We review dismissal of the individual defendants de novo. Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir.1984). Soffer’s complaint and brief do not make clear whether Soffer is suing these individuals in their personal capacity or in their official capacity. See Kentucky v. Graham, — U.S.—, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). After Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978), however, suit may be brought directly against a local governmental unit, rendering suit against the individuals unnecessary unless they are sued in their personal capacity. See Kentucky v. Graham, 105 S.Ct. at 3106 n. 14. This rule does not apply to suits against the states, where the eleventh amendment requires suit against the individual in his official capacity. Id.

Construing Soffer’s pro per complaint liberally, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), we conclude that Soffer sued the individual defendants in their personal capacity. In a personal-capacity suit under 42 U.S.C. § 1983, a plaintiff must plead a deprivation of a federal right by an official acting under color of state law. Kentucky v. Graham, 105 S.Ct. at 3106. Soffer’s amended complaint shows that he failed to do so. We affirm the dismissal of the individual defendants.

As to City Council members Hall, McFarland, Johnson, and Hertzog, as well as Mayor Schafer, Soffer alleges that, even though he had been given full relief, he nevertheless had a right to a hearing before the Council. This conclusory allegation is insufficient to support a claim. Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir.1982). The claims against Neth and Holbrook must fail for the same reasons. Soffer’s pleadings recite only that he was granted “meetings” rather than hearings. The pleadings do not allege constitutional or federal statutory defects in the actions of these individuals. We will not “supply essential elements of the claim that were not initially pled.” Id.

D. Award of Fees

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Soffer v. City of Costa Mesa, 798 F.2d 361 (9th Cir. 1986).

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Soffer v. City Of Costa Mesa
798 F.2d 361 (Ninth Circuit, 1986)