FILED
NOT FOR PUBLICATION
JAN 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS CLABAUGH, No. 14-17398
Plaintiff-Appellant, D.C. No. 2:13-cv-01061 HRH
v.
MEMORANDUM*
COUNTY OF YUMA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
H. Russel Holland, District Judge, Presiding
Argued and Submitted December 16, 2016
San Francisco, California
Before: BYBEE and N.R. SMITH, Circuit Judges, and KOBAYASHI,** District
Judge.
Douglas Clabaugh argues on appeal that the district court incorrectly granted
summary judgment to Yuma County on his 42 U.S.C. § 1983 claim for violation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
his right to due process under the Fourteenth Amendment of the United States
Constitution. We review a district court’s grant of summary judgment de novo.
Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015). We affirm.
First, Clabaugh argues that Yuma County failed to provide him with relevant
documents ten days prior to his hearing, as required by Ariz. Rev. Stat. § 38-1101
(2012). It is well-established that the requirements of Fourteenth Amendment due
process are determined by federal, not state law. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985). Thus, Yuma County’s failure to comply
with state law did not, on its own, deprive Clabaugh of procedural due process.
Further, Yuma County’s failure to provide Clabaugh with the relevant documents
before the hearing did not violate his right to due process. Clabaugh knew the
contents of the relevant documents, and Yuma County’s failure to provide the
documents earlier did not prevent him from meaningfully representing himself.
Second, Clabaugh argues that restricting his counsel to act only as an
observer rendered the hearing constitutionally insufficient. It is undisputed that
Yuma County employees told Clabaugh’s counsel that she was at the hearing as an
observer. However, the hearing notice stated that a representative “may be
permitted to examine witnesses.” Clabaugh’s attorney was only asked to attend the
hearing the night before, but did not ask for a continuance. Had Clabaugh’s
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attorney requested adequate time to prepare for the hearing, she would have been
fully informed on the scope of her representation. Nevertheless, Clabaugh had an
“opportunity to be heard at a meaningful time and in a meaningful manner.”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citations and internal quotation
marks omitted). Clabaugh was allowed to present evidence and call witnesses.
Clabaugh was allowed to confront adverse witnesses and evidence presented
against him. Clabaugh’s attorney was permitted to sit next to Clabaugh and advise
him throughout the hearing. Furthermore, neither Clabaugh nor his attorney
objected to any of the procedures used at the hearing. And neither Clabaugh nor
his attorney filed any documents or requested additional procedures after the
hearing or at anytime before the hearing officer issued his decision. Accordingly,
the hearing was constitutionally adequate and any shortcomings in representation
were not caused by Yuma County.
Finally, Clabaugh argues that Yuma County’s submission of his termination
to the sheriff of another county for review did not cure the procedural deficiency.
“[S]ome form of hearing is required before an individual is finally deprived of a
property interest.” Id. (citations omitted). Clabaugh was not denied procedural
due process – he was placed on administrative leave on October 15, 2012; he was
provided notice of dismissal; he received notice of his post-termination hearing;
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and he was provided with an opportunity to be heard. Submission of his
termination for further review was an additional step that Yuma County elected to
complete, which was not required by the Fourteenth Amendment.
AFFIRMED.
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