                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      November 6, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
DENISE MORRISON,

             Plaintiff - Appellant,

v.                                                         No. 13-5034
                                               (D.C. No. 4:12-CV-00334-JED-FHM)
KEVIN COX; GRETCHEN MUDOGA,                                (N.D. Okla.)

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.



      Denise Morrison appeals the summary judgment dismissal of her

42 U.S.C. § 1983 civil rights complaint against two employees of the City of Tulsa,

Oklahoma: Gretchen Mudoga, a neighborhood inspector, and her supervisor, Kevin




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Cox.1 Ms. Morrison claims the defendants violated her Fourth Amendment right to

be free from unlawful search and seizure when they entered her yard and removed

plants and other materials deemed to be a public nuisance.

      In response to a complaint and an inspection, the City of Tulsa issued a notice

to abate nuisance to Ms. Morrison on July 15, 2011. The notice described the trash,

vegetation overgrowth, tires and inoperable car that she needed to remove. The

notice—posted on Ms. Morrison’s door and mailed—gave her ten days to appeal.

She did not abate the nuisance or file an appeal. On July 27, Ms. Mudoga posted a

second notice on Ms. Morrison’s door and told Ms. Morrison she could appeal.

Ms. Morrison met with the defendants, but did not abate the nuisance or file an

appeal. On August 8, Ms. Mudoga posted a final notice on Ms. Morrison’s door

stating the City of Tulsa would remove the materials it deemed a nuisance on August

10, 2011. Ms. Morrison told Ms. Mudoga her yard was an organic garden. On

August 12, the Chief Horticulturist for the City of Tulsa inspected the property. She

opined the yard did not contain any organic garden, but had large amounts of

untended, dead and decaying vegetation; unhealthy trees; dead tree limbs; and rotting

tires. On August 16, 2011, the defendants and City of Tulsa contractors removed 11

cubic yards of materials from Ms. Morrison’s property.




1
      Ms. Morrison does not appeal the district court’s dismissal of the unidentified
John and Richard Doe defendants.


                                         -2-
      Ms. Morrison’s § 1983 complaint alleged defendants’ abatement action

violated the Fourth Amendment.2 The district court ruled the seizure of

Ms. Morrison’s yard materials was reasonable because procedural due process

standards were met and there was no unreasonable behavior by the defendants. The

court noted the undisputed evidence that notice was posted on Ms. Morrison’s

property and mailed; the notice explained her appeal rights; a final notice was posted;

a horticulturist considered and rejected Ms. Morrison’s organic-garden claim; the

defendants repeatedly met with Ms. Morrison to discuss her objections; and

Ms. Morrison never filed an appeal. Accordingly, the district court found no

deprivation of Ms. Morrison’s Fourth Amendment rights, citing Santana v. City of

Tulsa, 359 F.3d 1241, 1245 (10th Cir. 2004) (“[W]e hold that as long as procedural

due process standards are met and no unreasonable municipal actions are shown, a

nuisance abatement action does not violate the Fourth Amendment.”).

      On appeal, Ms. Morrison argues there are disputed issues of material fact

precluding summary judgment because she challenges the horticulturist’s conclusions

and asserts she was growing a lawful garden. See Fed. R. Civ. P. 56(a) (“The court

shall grant summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”).

Disputes concerning the conditions of Ms. Morrison’s yard are not, however, material


2
      Ms. Morrison does not appeal the district court’s rejection of her claim that the
nuisance ordinance was unconstitutionally vague.


                                         -3-
to the constitutional issue raised in her complaint. See Tabor v. Hilti, Inc., 703 F.3d

1206, 1215 (10th Cir. 2013) (“A fact is material if, under the governing law, it could

have an effect on the outcome of the lawsuit.” (internal quotation marks omitted)).

The relevant inquiry is not whether her yard was a nuisance, but whether defendants’

actions met procedural due process standards and were constitutionally reasonable.

See Santana, 359 F.3d at 1245. The undisputed evidence demonstrates defendants

met these constitutional standards.

      Ms. Morrison challenges this court’s holding in Santana, suggesting the case is

distinguishable because it did not involve a garden. She instead urges us to follow a

1990 divided-panel Ninth Circuit decision holding a judicial warrant is required

before city officials may enter property to abate a nuisance. But the type of nuisance

being abated is not relevant to the constitutional analysis, and we expressly declined

to follow the Ninth Circuit’s decision in Santana, which is binding circuit precedent.

      The district court did not err in its ruling that there was no violation of

Ms. Morrison’s Fourth Amendment rights. Accordingly, the judgment of the district

court is affirmed.


                                                Entered for the Court


                                                Jerome A. Holmes
                                                Circuit Judge




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