                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 06 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WALNUT HILL ESTATE                               No. 10-16863
ENTERPRISES, LLC; et al.,
                                                 D.C. No. 2:09-cv-00500-GEB-
              Plaintiffs - Appellants,           GGH

  v.
                                                 MEMORANDUM *
CITY OF OROVILLE; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                          Submitted September 13, 2011 **
                             San Francisco, California

Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
      Appellants brought this action against the City of Oroville, and its

employees David Goyer, Becky Fraser, Ray Sandoval, Chris Gail, and Derek

Prestesater, alleging that inspections, performed pursuant to search warrants for

code violations at the Oroville Inn and a subsequent Notice to Repair or Demolish,

violated their First, Fourth, Fifth, and Fourteenth Amendment rights. The district

court granted summary judgment on all claims. We affirm.

1.    The inspection warrants were not facially invalid. It is undisputed that the

City observed the property in dilapidated conditions while responding to a fire

alarm at the Inn. Thereafter, the Fire Marshall and code inspector observed

specific code violations when they went to the Inn to talk to the maintenance man.

These plain view observations of health and safety violations are sufficient to

create probable cause for a search warrant. See Michigan v. Tyler, 436 U.S. 499,

509 (1978)(“[I]t would defy reason to suppose that firemen must secure a warrant

or consent before entering a burning structure to put out the blaze. And once in a

building for this purpose, firefighters may seize evidence of arson that is in plain

view.”); Camara v. Mun. Court of City and Cnty. of San Francisco, 387 U.S. 523,

538 (1967) (“Where considerations of health and safety are involved, the facts that

would justify an inference of ‘probable cause’ to make an inspection are clearly




                                           2
different from those that would justify such an inference where a criminal

investigation has been undertaken.”).

2.    The search warrants were not excessive in scope. The affidavit provided

sufficient information for a magistrate to conclude that the entire premises had to

be searched for health and safety code violations. See Dawson v. City of Seattle,

435 F.3d 1054, 1064 (9th Cir. 2006) (“Because the warrants specified the crime to

be investigated, the specific places to be searched, and the types of evidence to be

seized, they provided sufficient guidance to the health investigators executing the

warrant.”).

3.    The district court did not err in ruling that the searches were not retaliatory.

Appellants failed to produce any material fact demonstrating that retaliation for

litigation against the City was a “substantial” factor in searching the Inn. See

Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Here, the

City responded to a fire at Appellants’ property seven months after Appellants

filed their lawsuit against the City. While responding to the fire alarm, the City

observed health and safety code violations, which were the basis for searching the

Inn. There is no evidence in the record that the City conducted the inspections in

retaliation for the earlier action. See Arpin v. Santa Clara Valley Transp. Agency,

261 F.3d 912, 922 (9th Cir. 2001) (“[C]onclusory allegations unsupported by


                                           3
factual data are insufficient to defeat the [Defendants’] summary judgment

motion.”).

4.    To prevail in a § 1983 claim for a procedural due process violation, a

plaintiff must show deprivation of a protected property or liberty interest without

being given due process. Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972).

The issuance of the Notice to Repair or Demolish (Notice) without a hearing did

not violate Appellants’ procedural due process rights. Appellants do not assert that

the City seized their property nor do they assert that California law required a

hearing prior to the issuance of the Notice. Thus, Appellants failed to demonstrate

that they had a property interest in a hearing before receiving the Notice.

      Appellants make no argument as to how they were deprived of a liberty

interest, thereby waiving this issue. See Greenwood v. F.A.A., 28 F.3d 971, 977

(9th Cir. 1994) (“We review only issues which are argued specifically and

distinctly in a party's opening brief. We will not manufacture arguments for an

appellant, and a bare assertion does not preserve a claim, particularly when, as

here, a host of other issues are presented for review.” (citation omitted)).

5.    The district court did not err in ruling that the searches and the Notice did

not violate Appellants’ substantive due process rights. The actions of the

Appellees were rationally related to a legitimate government interest. Armendariz


                                           4
v. Penman, 75 F.3d 1311, 1328 (9th Cir. 1996), overruled on other grounds by

Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 856-57 (9th Cir. 2007)

(“The City has an obvious interest in preventing safety and sanitation hazards by

enforcing the housing code.”).

6.    Because the constitutional rights of Appellants were not violated, we do not

address Appellants’ remaining claims.

      AFFIRMED.




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