NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN BORCHARDT, No. 16-16970
Plaintiff-Appellant, D.C. No. 4:14-cv-02039-JGZ
v. MEMORANDUM*
CITY OF TUCSON, a municipal
corporation of the State of Arizona; D.
COX, in official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted December 7, 2017**
San Francisco, California
Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,*** District
Judge.
Plaintiff-Appellant Brian Borchardt appeals the district court’s grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Steven J. McAuliffe, United States District Judge for
the District of New Hampshire, sitting by designation.
summary judgment with regard to Borchardt’s second cause of action, and its
dismissal of Borchardt’s first cause of action as unripe. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
As the facts and procedural history are familiar to the parties, we do not
recite them here.
1. A just-compensation claim brought under § 1983 is not ripe where a plaintiff
has not sought compensation through available state procedures. Williamson Cty.
Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194
(1985). Borchardt has not shown that he made any attempt to seek compensation
in Arizona prior to initiating his federal suit, or that he did not do so because
Arizona’s procedures were unavailable or inadequate. See Del Monte Dunes at
Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1506-07 (9th Cir. 1990).
Therefore, Borchardt’s § 1983 claim was unripe, and the district court lacked
jurisdiction to consider it. See S. Pac. Transp. Co. v. City of L.A., 922 F.2d 498,
502 (9th Cir. 1990).
2. Borchardt’s Fifth Amendment due process claim fails as a matter of law
because Borchardt has not alleged any misconduct on the part of the federal
government. See Lee v. City of L.A., 250 F.3d 668, 687 (9th Cir. 2001).
3. Borchardt’s Fourteenth Amendment due process claim also fails as a matter
of law because the notice provided by the City of Tucson (the “City”) was
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sufficient. The Fourteenth Amendment requires that notice be “reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). The City’s
attempts to serve Borchardt at a variety of different addresses, through a variety of
means, and over the course of several years, more than met this standard.
For the foregoing reasons, the district court’s grant of summary judgment
with regard to Borchardt’s second cause of action and dismissal of Borchardt’s
first cause of action as unripe are AFFIRMED.
AFFIRMED.
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