                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 28 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


OFF IT INC, a Washington State                   No. 13-35408
corporation and LAYNE E HUBER, in his
individual capacity,                             D.C. No. 3:12-cv-05701-RBL

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

THURSTON COUNTY, a municipal
corporation and CITY OF LACEY, a
municipal corporation,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                       Argued and Submitted July 11, 2014
                              Seattle, Washington

Before: ALARCÓN, TASHIMA, and MURGUIA, Circuit Judges.

       Appellants Off-It, Inc. and Layne Huber (collectively “Huber”) appeal from

the district court’s grant of summary judgment in Appellee Thurston County’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
favor on Huber’s claim against the County under 42 U.S.C. § 1983 for ratifying a

constitutional violation. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      In his briefing, Huber identified the sole constitutional violation at issue in

this case as the County prosecutor’s “indefinite withholding” of the allegedly

stolen property officers seized as evidence for criminal charges the County

prosecutor had not yet brought but contended it would bring in the future.1 Huber

did not specify the federal constitutional violation he contended the County

ratified. His complaint and his briefs on appeal suggest, however, that the County

ratified an unconstitutional deprivation of property without due process in violation

of the Fourteenth Amendment.

      “[A]n unauthorized intentional deprivation of property by a state employee

does not constitute a violation of the procedural requirements of the Due Process

Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for

the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Washington

Superior Court Criminal Rule 2.3(e) (“CrR 2.3(e)”) supplies such a remedy here.




      1
        The County represented at oral argument that it will not file stolen property
charges against Huber, a representation that is consistent with its post-argument
filing in this Court.

                                          2
      Although Huber contends that CrR 2.3(e) is an inadequate postdeprivation

remedy, the rule’s allowance for an evidentiary hearing that places the initial

burden on the state undermines any such contention. See State v. Marks, 790 P.2d

138, 144 (Wash. 1990) (en banc) (“An evidentiary hearing is required under

CrR 2.3(e) where the State and the defendant can offer evidence of their claimed

right to possession,” at which “[t]he State has the initial burden of proof to show

right to possession.”).

      Huber argues that a CrR 2.3(e) motion here “would have no basis in law or

fact” because Thurston County contends it holds the property as evidence for

charges the prosecutor intends to file but has not. Huber conceded at oral

argument, however, that he has filed a CrR2.3(e) motion since the district court

entered judgment and after he took this appeal. That motion remains pending

before the Washington State Superior Court. Because he has now filed a challenge

under CrR. 2.3(e) and failed previously to avail himself of this state

postdeprivation remedy, Huber cannot, at this juncture, demonstrate that Thurston

County may be liable for ratifying a violation of federal law.

AFFIRMED.




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