FILED
NOT FOR PUBLICATION NOV 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM J. WHITSITT, No. 08-17526
Plaintiff - Appellant, D.C. No. 3:08-cv-01803-JSW
v.
MEMORANDUM *
JEAN ZEDLITZ; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
William J. Whitsitt appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging constitutional claims arising from
a traffic stop. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the district court’s dismissal for failure to state a claim under Federal Rule of Civil
*
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).
Procedure 12(b)(6) and 28 U.S.C. § 1915(e)(2). Huftile v. Miccio-Fonseca, 410
F.3d 1136, 1138 (9th Cir. 2005). We may affirm on any ground supported by the
record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008). We affirm in part,
vacate in part, and remand.
The Fourth Amendment claims against Zedlitz concerning Whitsitt’s arrest
and the impoundment of Whitsitt’s vehicle were properly dismissed because
Whitsitt was driving on a suspended license in violation of state law. See Cal. Veh.
Code § 14602.6(a)(1) (an officer may arrest a person driving with a suspended
license and seize the vehicle); United States v. Hartz, 458 F.3d 1011, 1018 (9th
Cir. 2006) (an officer has probable cause to make a warrantless arrest if the facts
suggest a fair probability that the suspect committed a crime); Miranda v. City of
Cornelius, 429 F.3d 858, 865 (9th Cir. 2005) (“The violation of a traffic regulation
justifies impoundment of a vehicle if the driver is unable to remove the vehicle
from a public location without continuing its illegal operation.”).
The district court properly dismissed the due process claims concerning the
tow hearing. See Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1323-25 (9th
Cir. 1982) (tow hearings under California Vehicle Code § 22852 satisfy due
process).
The district court properly dismissed the claims against the County of
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Alameda and the City of Dublin concerning the impoundment of Whitsitt’s vehicle
and the tow hearing. See Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (there
is no municipal liability without an underlying constitutional violation).
The district court properly dismissed the conspiracy claims concerning the
impoundment of Whitsitt’s vehicle and the tow hearing. See Woodrum v.
Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) (to show a conspiracy
under § 1983, there must be an underlying constitutional violation).
The district court properly dismissed the claims concerning the conditions of
confinement when Whitsitt spent one night at the Santa Rita Jail. See Bell v.
Wolfish, 441 U.S. 520, 535 & n.16 (1979) (pretrial detainees cannot be subject to
conditions that “amount to punishment”); Anderson v. County of Kern, 45 F.3d
1310, 1314-15 (9th Cir. 1995) (temporary placement in cell that was dirty and
smelled bad did not violate pretrial detainees’ constitutional rights).
The district court properly dismissed the claims against Credit Regulating
Services, Inc. because Whitsitt failed to allege any facts to show that this private
entity was acting under color of state law or that it deprived him of a constitutional
right. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).
The district court dismissed under 28 U.S.C. § 1915(e) the due process claim
concerning the lien sale against R. Lance & Son on the ground that it was not
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acting under color of law. We vacate the dismissal because, at this early stage in
the proceedings, we cannot say that R. Lance & Son was not acting under color of
law. See, e.g., Goichman, 682 F.2d at 1322 (citing Stypmann v. City & County of
San Francisco, 557 F.2d 1338, 1341-42 (9th Cir. 1977)).
We affirm the dismissal of the due process claim concerning the lien sale
against defendants other than R. Lance & Son. See Woodrum, 866 F.2d at 1126 (to
show a conspiracy under § 1983, there must be an agreement or meeting of the
minds to violate the plaintiff’s constitutional rights; conclusory allegations of a
conspiracy are insufficient to support a claim).
The district court did not abuse its discretion by denying leave to amend
Whitsitt’s claims against defendants other than R. Lance & Son because
amendment would have been futile. See Gardner v. Martino, 563 F.3d 981, 990,
992 (9th Cir. 2009).
We are not persuaded by Whitsitt’s remaining contentions, including the
contention that the arrest was unlawful because it was on private property.
Accordingly, we vacate the judgment as to the due process claim against R.
Lance & Son concerning the lien sale, and remand to the district court with
instructions to direct service on R. Lance & Son so that it may file a responsive
pleading or motion. We otherwise affirm.
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Whitsitt shall bear the costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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