883 F. 2d 1023 - Dobard v. City of Oakland

No. 88-15272.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS and WIGGINS, Circuit Judges, and RUDI M. BREWSTER**, District Judge.

MEMORANDUM***

This is the second time this case has been before us on appeal. The first time we reversed the district court's dismissal of the case as an unduly harsh sanction for Mr. Dobard's failure to prosecute.1 See Dobard v. City of Oakland, No. 85-1706, p. 3-4 (9th Cir. June 11, 1987) (memorandum). On remand, Mr. Dobard filed a first amended complaint alleging five separate claims against the City of Oakland and several individuals. Each claim is in one way or another associated with the City of Oakland's demolition of Mr. Dobard's condemned properties located on Myrtle and "B" Streets. Sometime after the filing of the amended complaint the City of Oakland brought a motion for summary judgment. The district court granted the motion with respect to three of the claims and dismissed the remaining two claims with prejudice. Shortly thereafter the district court denied Mr. Dobard's motion brought under Fed.R.Civ.P. 60(b) to have the judgment set aside. Mr. Dobard timely appeals the initial ruling and the denial of his subsequent motion. We have jurisdiction, 28 U.S.C. Sec. 1291 (1982), and we affirm.

We review the district court's dismissal of two of Mr. Dobard's claims de novo. Since Mr. Dobard is acting pro se, we are to construe the pleadings liberally in his favor in order to afford him any benefit of the doubt. See Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc). Mr. Dobard asserts initially that the district court erred in dismissing his second and fifth claims because of our decision in the earlier appeal. In essence, he asserts that because we reversed the district court's earlier dismissal, we implicitly prevented the district court from dismissing his suit for any reason whatsoever. This, of course, simply is not the case. The district court appropriately considered whether Mr. Dobard's complaint stated claims for which relief could be granted.

The second claim in Mr. Dobard's complaint alleges that the City of Oakland "neglectively [negligently] filed two abstract judgment liens" against his "B" Street property in violation of unspecified constitutional rights. The district court properly dismissed this claim because, as the Supreme Court has made abundantly clear, a claim under 42 U.S.C. Sec. 1983 (1982) cannot be supported by allegations of mere negligence. See Daniels v. Williams, 474 U.S. 327, 332 (1985). Mr. Dobard argues nevertheless that other allegations in the complaint assert that the City of Oakland's conduct was "intentional, fraudulent, and invidious." Even supposing these allegations adequately satisfy Fed.R.Civ.P. 9(b)'s particularity requirement--which we doubt, see Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985)--Mr. Dobard could not succeed on his claim because it arose in 1983, over one year before the instant action was filed, and therefore is barred by the one-year California statute of limitation. Cal.Code Civ.Pro. Sec. 340(3) (West Supp.1987); see Wilson v. Garcia, 471 U.S. 261, 280 (1985) (claims under Sec. 1983 characterized as personal injury actions for purposes of applying state's statutes of limitation). The fifth claim for relief alleges that the City of Oakland has "disturbed" Mr. Dobard in his possession and enjoyment of his property. Again, as the Supreme Court has emphasized, "Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker v. McCollan, 443 U.S. 137, 146 (1979). Merely disturbing one in the use and enjoyment of his property is nothing akin to a constitutional violation. Accordingly, the district court properly dismissed the second and fifth claims.

SUMMARY JUDGMENT OF FIRST, THIRD, AND FOURTH CLAIMS

We review the district court's grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Viewing the evidence in a light most favorably to Mr. Dobard, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We apply this standard separately to each of Mr. Dobard's three remaining claims. The first claim, brought under various civil rights statutes, is a challenge to the City of Oakland's procedures in condemning and demolishing Mr. Dobard's Myrtle Street property. The third claim seeks recovery for inverse condemnation of the Myrtle Street property. And the fourth claim alleges a conspiracy under 42 U.S.C. Sec. 1985 (1982) by the Mayor of Oakland and various City employees to have Mr. Dobard's properties declared substandard and public nuisances and to have the prior default judgment in this case fraudulently vacated. We conclude, as the district court concluded below, that there are no material disputed issues of fact as to any of these claims and that the City of Oakland is entitled to judgment as a matter of law.

Mr. Dobard previously brought suit against the City of Oakland alleging nearly identical civil rights violations associated with the procedures employed by the City of Oakland in the condemnation and demolition of his property located on "B" Street. His suit was unsuccessful. The district court granted the City of Oakland's motion for summary judgment on the ground that Mr. Dobard was not denied any rights of procedural due process. This court affirmed, stating--contrary to the nearly identical allegations of Mr. Dobard's complaint here--that Mr. Dobard "received all the process he was due." Dobard v. City of Oakland, No. 85-2715, slip op. at 4 (9th Cir. March 10, 1987) (memorandum), cert. denied, 108 S.Ct. 685 (1988). Mr. Dobard seeks to renew these same issues in his first and third claims for relief. He cannot succeed, however, because the doctrine of collateral estoppel precludes Mr. Dobard from raising once again the issues that have been litigated and decided against him.2 See Deutsch v. Flannery, 823 F.2d 1361, 1364 (9th Cir.1987).

Mr. Dobard has equally failed to sustain his summary judgment burden for his fourth claim. A claim for conspiracy under section 1985 cannot succeed without proof of a race-based animus. Bretz v. Kelman, 773 F.2d 1026, 1028-29 (9th Cir.1985) (en banc). Mr. Dobard's reliance on the allegations of his complaint is, of course, insufficient to sustain his summary judgment burden. See Kung v. FOM Investment Corp., 563 F.2d 1316, 1317-18 (9th Cir.1977) (per curiam) (conclusory allegations, unsupported by factual data, do not create triable issues of fact). He has not pointed to any matters beyond the complaint3 sufficient for there to be enough "evidence on which the jury could reasonably find for plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Accordingly, the district court properly granted summary judgment on Mr. Dobard's fourth claim.

Mr. Dobard's motion to set aside the district court's earlier judgment was properly denied for the reasons stated by the district court in its memorandum opinion. Nothing raised by Mr. Dobard in that motion--as in this appeal--provided a sufficient basis for concluding that the district court erred in dismissing two of Mr. Dobard's claims and granting summary judgment on the other three.

The City of Oakland has requested that it be awarded its costs and attorney's fees on appeal. "Although attorney's fees may be awarded [under 42 U.S.C. Sec. 1988] at the appellate as well as the trial level, Sotomura v. County of Hawaii, 679 F.2d 152 (9th Cir.1982), a prevailing defendant is entitled to an award of fees only where the plaintiff's action was 'frivolous, unreasonable, or without foundation.' " United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 647 (9th Cir.1986), cert. denied, 479 U.S. 1009 (1986) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)). Mr. Dobard's appeal borders on the frivolous. Nevertheless, because of Mr. Dobard's status as a pro se litigant, we will give him the benefit of the doubt and deny the City of Oakland's request for attorney fees. See Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 620 (9th Cir.1987).