                                              Filed:    August 8, 1997


                  UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             No. 96-1607
                             (CA-92-40)



John Trobough, et al,

                                            Plaintiffs - Appellants,

         versus

City of Martinsburg, et al,

                                             Defendants - Appellees.




                              O R D E R


    The Court amends its opinion filed July 30, 1997, as follows:

    On page 2, first line of the opinion:        "Per Curiam" is cor-
rected to read "HILTON, District Judge."
                                       For the Court - By Direction



                                           /s/ Patricia S. Connor

                                                       Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN TROBOUGH; SUSAN YARR
TROBOUGH,
Plaintiffs-Appellants,

v.
                                                               No. 96-1607
CITY OF MARTINSBURG; CITY COUNCIL
OF THE CITY OF MARTINSBURG; G.
DALE FISHBACK, JR.; DAN H.
NIELSEN,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, District Judge.
(CA-92-40)

Argued: January 29, 1997

Decided: July 30, 1997

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge,
and HILTON, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Hilton wrote the opinion, in
which Chief Judge Wilkinson and Judge Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: James Paul Campbell, JAMES P. CAMPBELL & ASSO-
CIATES, P.C., Leesburg, Virginia, for Appellants. Brian Alexander
Glasser, BOWLES, RICE, MCDAVID, GRAFF & LOVE, Charles-
ton, West Virginia, for Appellees. ON BRIEF: Charles F. Printz, Jr.,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, Charleston, West
Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

HILTON, District Judge:

Appellants John and Susan Trobough appeal from the district
court's grant of summary judgment. Appellants allege that the City of
Martinsburg, West Virginia, the City Council and certain City offi-
cials have violated their constitutional rights to due process, equal
protection and have taken their property without just compensation.
We affirm the district court's decision.

I.

The Appellants purchased a four unit apartment building at 210
East Burke Street in 1988. Over the next few years, several citizen
complaints were filed with the City concerning the activities of cer-
tain residents and the condition of the apartments. For example, in
1991, the above ground sewer line ruptured. The discharge of raw
sewage onto the ground drew the City's attention to the property. The
City ordered the Troboughs to fix the pipe. The City also ordered
abatement of an accumulation of garbage, old appliances, old furni-
ture and other debris at the back of the tenement. The City requested
that the Troboughs put a gutter and downspouts on the roof of a small
building in the back of the property because water running off the
roof flooded the basement of the neighbor's residence at 212 East
Burke Street.

In May of 1992, a broken sewer pipe again drew the City's atten-
tion to the property. The City inspected the property and informed the

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Troboughs that they were in violation of the State Building Code, and
had five days to correct the violations. On June 2, 1992, neighbors to
the property, Paul and Heidi Sweeney, wrote to the Troboughs com-
plaining about alleged drug dealing, public urination and drunken
brawls taking place on the Trobough's property. The Sweeneys also
wrote to Nan Stevens, a City building inspector, requesting that she
take action to take care of the problem. Eight days later Mr. Sweeney
again wrote the City to complain about more drug dealing at 210 East
Burke. Mr. Sweeney's letter also reported his observations (through
a perennially open door and a broken glass window in the vacant first
floor at 210 East Burke), that a puddle of water was covering the
kitchen floor, the floor itself sagged, the rear porch was rotted and
patched haphazardly with scraps of plywood and lumber, a pervasive
odor of sanitary wastes and rotting foodstuffs emanated from the
porch and central hallway, and there were no garbage cans available
to the tenants of the property. Mr. Sweeney also reported that when
invited by two residents of 210 East Burke he entered their apart-
ments and found inadequate plumbing, heating and electrical services.
According to Mr. Sweeney there were no smoke detectors in the
building. In his letter, Mr. Sweeney requested that the City investigate
the Trobough's property.

City officials decided to investigate and inspect 210 East Burke
Street, and on June 26, 1992 sent a notice to the Troboughs giving the
date and time of the inspection. The City building inspectors applied
for and obtained a search warrant to permit inspection of 210 East
Burke for purposes of examining, among other things, the safety of
the electrical system. The City used the search warrant to inspect
Apartment One of the building on July 1, 1992.

A team of police officers, building inspectors and an electrical
inspector inspected the apartment, taking photographs. They noted
numerous problems, including but not limited to: broken sidewalks;
unglazed or unopenable windows; lack of screens and smoke detec-
tors; inadequate handrails, food preparation areas and garbage facili-
ties; foundation walls out of plumb; flues pulling away from the
furnace and the wall; and pipes repaired with twine. The fire chief's
inspection of the tenement revealed: no approved means for exiting
the second floor of the tenement; no smoke detectors; and no fire
extinguishers. The electrical inspector also noted serious problems,

                    3
including: lack of proper grounding; inadequate number of outlets
which were then overloaded with extension cords; substitution of bal-
led up aluminum foil for a fuse; missing or broken handles on the dis-
connects with conductors jumpered across the inoperable disconnect;
inadequate lighting; use of a 30 amp fuse where the maximum allow-
able was 15 amps; and a rusting indoor junction box being used out-
side. The electrical inspector concluded that the condition of the
wiring and equipment posed "a serious threat to personal safety and
property and the same threat to its surroundings."

Following the inspection the City issued an Emergency Condition
Order, which was posted on the property, requiring that the apart-
ments be vacated and closed until such time as the structure was
brought up to the standards of the National Electric Code, the
National Fire Life Safety Code and the 1990 Property Maintenance
Code. The Troboughs ignored the order to vacate, failed to avail
themselves of the administrative appeals process, and removed the
posted order from the premises.

On July 17, 1992, the Troboughs sought a building permit in order
to perform maintenance limited to replacing the main electrical ser-
vice disconnects for each apartment. The City denied the permit on
July 21, 1992 until two copies of the specifications and plans were
submitted, and until the application included enough work to bring
the structure into compliance with applicable codes. On July 21,
1992, the City obtained arrest warrants for the Troboughs for remov-
ing the Emergency Condition Order and failing to obey the posted
notice. The Troboughs were arrested. After arraignment, they filed
this law suit. To date they have not been tried on the charges, nor
have they repaired the property.

II.

The Troboughs' complaint arises from the City's order to vacate
and close their rental property for violations of the Property Mainte-
nance Code and in arresting them for removing the Emergency Con-
dition Order and failing to vacate the premises or repair the conditions
properly. The district court referred the defendants' motion for sum-
mary judgment to the magistrate judge for submission of proposed
findings of fact and a recommended disposition. The magistrate judge

                    4
filed his proposed finding and recommended disposition, concluding
that the defendants' motion for summary judgment should be granted.
The district court, after considering the Trobough's objections,
adopted, with slight exception, the magistrate judge's conclusions as
its own and granted summary judgment for the defendants.

The decision of the district judge should be affirmed. Appellants
seek to try their state law claims in federal court under the guise of
42 U.S.C. § 1983. However, appellants have no constitutional claims
to support a § 1983 action. In order for Plaintiffs to establish a prima
facie case pursuant to 42 U.S.C. § 1983 they must have suffered the
deprivation of a federal right, privilege or immunity by defendants'
actions. However, the continued maintenance of an illegal use or a
public nuisance is not a protected property interest. Mugler v. Kansas,
123 U.S. 623 (1887); Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992); Keystone Bituminous Coal Assn. v. DeBenedictus,
480 U.S. 470 (1987); Agins v. Tiburon, 447 U.S. 255 (1980).

An electrical inspector concluded that 210 East Burke's electrical
system constituted "a serious threat to personal safety and property."
In addition, the fire chief's inspection of the tenement revealed (i) no
approved means for exiting the second floor of the tenement; (ii) no
smoke detectors, and (iii) no fire extinguishers. Together these reports
(and reports of other inspectors) more than adequately support the dis-
trict court's conclusion that the tenement at 210 East Burke Street
constituted a menace to the health and safety of those inside and was
a public nuisance.

To state a substantive due process claim, the Troboughs must dem-
onstrate a lost "property interest, rooted in state law." Biser v. Town
of Bel Air, 991 F.2d 100, 103-04 (4th Cir. 1993). However, no person
enjoys a property interest in maintaining a nuisance. Keystone, 480
U.S. at 492 n. 20-22. Thus, since the City's actions in this case
involved ameliorating a serious risk to persons and property, the Tro-
boughs' substantive due process claim must fail.

Because the City acted to protect its citizens from a nuisance, the
Troboughs' procedural due process claim also fails. In situations
where a government must act to protect its citizens from a nuisance,
the availability of a prompt hearing, subsequent to the action satisfies

                    5
the demands of due process. See Matthews v. Eldridge, 424 U.S. 319,
333-35 (1976); McLean Trucking Co. v. OSHRC, 503 F.2d 8, 11 (4th
Cir. 1974). In this case, the City offered the Troboughs a chance to
participate in a subsequent hearing to contest the issuance of the
Emergency Condition Order. The Troboughs ignored the opportunity.
The City was acting to ameliorate a nuisance, and provided the Tro-
boughs an opportunity to participate in the process, a procedure which
vitiates the Troboughs' procedural due process claim.

The Troboughs' have no taking claim. A taking occurs when a state
extinguishes a property interest for public use. See Lucas, 505 U.S.
at 1019. However, a taking does not occur when a state eliminates a
nuisance. Keystone, 480 U.S. at 489-91; Lucas, 505 U.S. at 1023-24.
In this case the City's actions were directed at eliminating a nuisance,
and as a result the Troboughs' taking claim must fail.

Finally, the Troboughs' equal protection claim must fail. The Tro-
boughs must prove that the City's actions were not rationally related
to a legitimate government interest. City of Cleburne, Texas v. Cle-
burne Living Center, 473 U.S. 432, 440 (1985). However, the City's
treatment of the Troboughs in this case was rationally related to the
legitimate government aim of eliminating dangers to people and prop-
erty. Thus the Troboughs' equal protection claim also fails.

The Troboughs had every opportunity to seek resolution of their
claims in state court and chose not to do so. The federal courts are
overburdened with litigation and do not need, and should not be bur-
dened with, this kind of action which seeks resolution of state claims.

AFFIRMED

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