Stanley Swenson v. Siskiyou County

FILED
NOT FOR PUBLICATION NOV 20 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

STANLEY SWENSON, No. 11-16678

Plaintiff - Appellant, D.C. No. 2:08-cv-01675-FCD-
CMK
v.

SISKIYOU COUNTY; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding

Submitted November 13, 2012 **

Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.

Stanley Swenson appeals pro se from the district court’s judgment in his 42

U.S.C. § 1983 action alleging claims regarding the deprivation of a vested property

interest. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

*
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).
Miller v. Yokohama Tire Corp., 358 F.3d 616, 619 (9th Cir. 2004) (failure to state a

claim); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002) (en

banc) (summary judgment). We affirm in part, reverse in part, and remand.

The district court properly dismissed Swenson’s § 1985 claim because

Swenson failed to allege that defendants conspired to interfere with a federal

officer’s duties, to obstruct a judicial proceeding, or to discriminate against him

based on his race or other protected ground. See Bretz v. Kelman, 773 F.2d 1026,

1027-28 & n.3 (9th Cir. 1985) (en banc) (listing elements of § 1985 claim).

The district court properly granted summary judgment on Swenson’s takings

claim because Swenson failed to seek compensation from the state through an

inverse condemnation action. See Schnuck v. City of Santa Monica, 935 F.2d 171,

173-74 (9th Cir. 1991) (federal takings claim not ripe until plaintiff is denied

compensation through state procedures, which California has provided since 1987).

However, dismissal of Swenson’s procedural due process claim was

improper because Swenson did not allege a random and unauthorized deprivation

of property. See Zinermon v. Burch, 494 U.S. 113, 136-39 (1990) (adequate post-

deprivation state law remedies only bar a procedural due process claim for random

and unauthorized conduct that leads to the deprivation of a protected liberty or

property interest). Rather, Swenson alleged that defendants deprived him of a

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vested property interest under established state law procedures, which made it

possible for them to both foresee the deprivation and provide pre-deprivation due

process. See id. (due process claim is not barred where the deprivation is

foreseeable and the state can therefore be reasonably expected to make

pre-deprivation process available).

Summary judgment on Swenson’s substantive due process claim was also

improper because, viewing the evidence most favorably to Swenson, he raised a

genuine dispute of material fact as to whether defendants acted in an arbitrary and

irrational manner when they invalidated a vested property interest due to political

or other considerations. See Del Monte Dunes at Monterey, Ltd. v. City of

Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990) (abrupt rejection of proposed

development plan raised a triable dispute as to whether city was motivated by

political pressure from neighbors and residents, and not regulatory concerns).

The district court did not abuse its discretion in denying Swenson’s motion

to compel production of privileged documents and granting defendants’ motion for

sanctions against Swenson for his failure to timely respond to discovery. See Laub

v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (discovery rulings

should only be disturbed on clear showing of actual and substantial prejudice). On

remand, however, the district court should reassess its denial of any discovery to

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Swenson on the ground that it was only relevant to his previously dismissed

procedural due process claim.

We do not consider Swenson’s equal protection claim as it is raised for the

first time on appeal. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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