                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     September 28, 2005
                             FOR THE TENTH CIRCUIT
                                                                        Clerk of Court

    CARL EDMUNDSON; GARY
    SMITH, Individuals,

                Plaintiffs-Appellants,
                                                       No. 04-5040
     v.                                         (D.C. No. 03-CV-254-K(J))
                                                       (N.D. Okla.)
    CITY OF TULSA, OKLAHOMA, a
    municipal corporation; CANDY
    PARNELL, City of Tulsa Code
    Enforcement officer and individual,

                Defendants-Appellees,

     and

    TULSA OFFICE OF CODE
    ENFORCEMENT, sued as City of
    Tulsa Code Enforcement,

                Defendant.


                             ORDER AND JUDGMENT         *




Before EBEL , HARTZ , and McCONNELL , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Carl Edmundson and Gary Smith appeal the district court’s decision

granting summary judgment in favor of the City of Tulsa and Candy Parnell, a

City of Tulsa Code Enforcement Officer, on their claims alleging violations of the

Fourth, Fifth and Fourteenth Amendments to the United States Constitution.     1



Specifically, plaintiffs claim that defendants seized their property in violation of

the Fourth Amendment and deprived them of said property without due process of

law in violation of the Fifth and Fourteenth Amendments. The district court

determined that plaintiffs were given proper notice before their property was

seized and that the seizure of their property was not unreasonable.

                                           I

      On appeal, plaintiffs argue that: 1) genuine issues of fact preclude

summary judgment; 2) Carl Edmundson had an expectation of privacy in the



1
      Plaintiffs also named City of Tulsa Code Enforcement as a party to the
complaint. After this court issued a show cause order regarding unadjudicated
claims against this defendant, plaintiffs moved to dismiss the City of Tulsa Code
Enforcement. On July 6, 2004, the district court granted the motion and
dismissed with prejudice all claims against this defendant. That order has not
been challenged on appeal.

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property; 3) plaintiffs hold a “class-of-one-status” and defendants discriminated

against them in violation of the Equal Protection Clause; 4) the City reversed the

process by seizing assets first and then citing Carl Edmundson for a zoning

violation; 5) the zoning ticket has been wrongfully altered by defendants; 6) the

defendants’ actions were arbitrary and capricious; 7) the

permitted-business-use-variance prohibited defendants’ actions; 8) material

factual disputes exist on plaintiffs’ claims for due process and equal protection

precluding summary judgment.

       Before we reach the merits of plaintiffs’ appeal, we must determine which

issues are properly before the court. Plaintiffs did not raise an equal protection

claim in their complaint or in their response to defendants’ motion for summary

judgment. Plaintiffs also failed to argue in the district court that the zoning ticket

was wrongfully altered, or that the defendants’ actions were arbitrary and

capricious. As a general rule, we will not consider an issue that was not raised

before the district court,   see Walker v. Mather (In re Walker ), 959 F.2d 894, 896

(10th Cir. 1992), and we see no reason to depart from that rule here. In addition,

plaintiffs have not provided any record support for the conclusory statement in

their first and eighth issues that genuine issues of fact prevent summary judgment.

Appellate briefs must contain appellants’ “contentions and the reasons for them,

with citations to the authorities and parts of the record on which the appellant[s]


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rel[y].” Fed. R. App. P. 28(a)(9)(A). We decline to consider arguments that are

inadequately briefed on appeal.   Gross v. Burggraf Constr. Co. , 53 F.3d 1531,

1547 (10th Cir. 1995). Accordingly, the only issues we will consider in this

appeal are issues two, four, and seven.

      We review de novo the district court’s grant of summary judgment in favor

of defendants.   Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance

Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We have jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 1331, and we affirm.

                                          II

      Plaintiffs’ claims arise out of a nuisance abatement process conducted at

17317 East 14th Street in Tulsa, Oklahoma, in April 2001. The record owners of

the property at the time were John C. and Joyce M. Edmundson who, according to

the Tulsa County Treasurer’s records, could be contacted in care of plaintiff Carl

Edmundson, their son. In February 2001, Neighborhood Inspector Bill Winston

inspected a complaint of a public nuisance at 17317 East 14th Street. After

inspecting the property, Mr. Winston mailed a Notice to Abate Nuisance to John


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and Joyce Edmundson, in care of Carl Edmundson. The notice advised that

nuisances were being maintained on the property, consisting of: “Weeds and

grass in excess of allowable height . . . [t]rash, junk and debris . . . [v]ehicles

inoperable, junked or abandoned vehicles; auto parts on private or public

property.” Aplt. App. at 117. In addition to the mailed notice, Mr. Winston

posted a copy of the Notice to Abate Nuisance on the property. On March 12,

2001, plaintiff Edmundson’s wife left a voice mail at the Neighborhood

Inspections Office stating that they had three deaths in her family in the last week

and wanted a time extension. No notice of appeal was filed. One month later, on

April 16, 2001, Mr. Winston reinspected the property and found that the nuisances

complained of were still present. The City’s contractor arrived on April 17, 2001,

and started to abate the nuisance, a process that was not complete until April 26,

2001. During the abatement process, Carl Edmundson was allowed to keep and

remove from the property approximately fifteen to twenty vehicles. In addition,

approximately ten vehicles were left on the premises because they did not

constitute a public nuisance. Plaintiffs allege that some of the materials removed

from the property belonged to plaintiff Gary Smith.

                                            III

       Section 1 of the Fourteenth Amendment to the United States Constitution

states that “[n]o State shall . . . deprive any person of life, liberty, or property,


                                            -5-
without due process of law . . . .” U.S. Const. Amend. XIV, § 1. The Supreme

Court has determined that individuals whose property interests are at stake are

entitled to “notice and an opportunity to be heard.”        United States v. James Daniel

Good Real Property , 510 U.S. 43, 48 (1993). In a case similar to the present case

where the plaintiff alleged that the City of Tulsa committed due process violations

with its nuisance abatement procedures, we held that “[a]s long as the City’s

requirements are reasonable and give the aggrieved party adequate notice and an

opportunity to meaningfully participate, they are not unconstitutional.”         Santana

v. City of Tulsa , 359 F.3d 1241, 1244 (10th Cir. 2004) (citing       Cleveland Bd. of

Educ. v. Loudermill , 470 U.S. 532, 5465 (1985)).

       In their response to summary judgment, plaintiffs did not dispute that the

City properly followed the nuisance abatement ordinances in notifying them of the

nuisance. Aplt. App. at 20-22, 228-230 ¶¶ 9-13. Plaintiffs further admit that they

observed the posted notice on the property.         Id. at ¶ 14. Plaintiffs did not dispute

that the notice described the nuisance, provided instructions on how to abate the

nuisance, and warned that if the nuisance was not abated within ten days, the City

would abate it without further notice.    Id. at 21 and 228-29 ¶¶ 11-12. They did

not dispute that the notice also informed them that “the property owner or his

agent may appeal this notice to abate a nuisance within 10 days of the mailing of




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the notice by filing in writing with the Code Official and the Nuisance Hearing

officer a notice of appeal stating the grounds thereof.”     Id. at 21-22, 229 ¶ 13.

       Although plaintiffs did not dispute in the district court that they had notice

of the nuisance abatement, they asserted that they did not timely receive the

notice because they were out of town. Plaintiffs, however, cite to no legal

authority to support their claim that receiving notice while they were out of town

does not constitute valid notice. Regardless, plaintiffs knew about the notice

before the deadline to file an appeal. Plaintiffs stated in their response to

summary judgment that “upon observing the posted notice on their property,

[plaintiffs] contacted the Neighborhood Inspections Office,” citing to the affidavit

of Chris Edmundson, Carl Edmundson’s wife.          Id. at 229 ¶ 14. Mrs. Edmundson

left a voicemail message requesting an extension of time with the Neighborhood

Inspection Office on March 12, 2001, the last day to file an appeal.      Id. at 22 ¶

14, 254 ¶ 7. Plaintiffs failed to follow up on Mrs. Edmundson’s initial phone

call, and they failed to submit any kind of written appeal in the time between

Mrs. Edmundson’s phone call and the commencement of the nuisance abatement

process one month later. Plaintiffs’ failure to take advantage of the appeals

process does not render the process provided to them constitutionally insufficient.

Santana , 359 F.3d at 1244.




                                             -7-
       Plaintiffs argue for the first time on appeal, in their reply brief, that

plaintiff Gary Smith never received notice or due process. This argument is

inconsistent with plaintiffs’ response to summary judgment as discussed above in

which the brief used the term “plaintiffs” throughout and failed to distinguish

between Carl Edmundson or Gary Smith in admitting that the plaintiffs received

notice. See, e.g. , Aplt. App. at 228-30 ¶¶ 9-18. We will not consider arguments

raised for the first time in a reply brief.   See Stump v. Gates , 211 F.3d 527, 533

(10th Cir. 2000).

       Plaintiffs also argued in the district court and before this court that their

due process rights were violated by the nuisance abatement because they had a

variance to operate an auto repair business on the property, the defendants seized

their property without checking to see if the business was permissible, and the

defendants’ removal of their property violated their lawful right to operate their

business. Plaintiffs, however, failed to take advantage of their opportunity to

appeal the nuisance abatement notice and raise this issue before the Code Official

and Nuisance Hearing Officer. “A party cannot create a due process claim by

ignoring established procedures. The availability of recourse to a constitutionally

sufficient administrative procedure satisfies due process requirements if the

complainant merely declines or fails to take advantage of the administrative

procedure.” Santana , 359 F.3d at 1244 (quotation omitted). Because plaintiffs


                                              -8-
were provided with notice and an opportunity to be heard, the district court

properly entered summary judgment in favor of defendants on plaintiffs’ due

process claim.

                                              IV

       The Fourth Amendment to the United States Constitution states that “[t]he

right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated . . . .” Const.

Amend. IV. Plaintiffs contend that their Fourth Amendment rights were violated

when defendants seized certain property through the nuisance abatement. A

seizure of property occurs when “there is some meaningful interference with an

individual’s possessory interests in that property.”       Soldal v. Cook County ,

506 U.S. 56, 61 (1992) (quotation omitted). According to          Soldal , in determining

whether a government seizure violates the Fourth Amendment, the seizure must

be examined for its overall reasonableness.         Id. at 71. The analysis must be based

upon “a careful balancing of governmental and private interests.”         Id. (quotation

omitted).

       In Santana , we held 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.” 359 F.3d at 1245. Here,

procedural due process standards were met, and plaintiffs failed to raise any


                                              -9-
factual issues in the district court that demonstrated any unreasonable behavior by

the City during the abatement process. It is undisputed that during the abatement

process, the City allowed Carl Edmundson to keep and remove from the property

approximately fifteen to twenty vehicles, and that another ten vehicles were left

on the premises because they did not constitute a nuisance. The district court did

not err in its determination that the City’s abatement process was reasonable, and

that there was no violation of plaintiffs’ Fourth Amendment rights.

      The judgment of the district court is AFFIRMED. The appellees’ motion to

strike a portion of the record on appeal is denied.



                                                      Entered for the Court



                                                      Michael W. McConnell
                                                      Circuit Judge




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