Camuglia v. City of Albuquerque

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 31, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

RICK CAM UGLIA, doing business as
Paisano’s R estaurant,

Plaintiff - Appellant,
v. No. 05-2128
THE CITY O F ALBU QU ERQUE;
TH E A LB UQ U ER QU E
ENV IRO NM ENTA L HEA LTH
D EPA RTM EN T; G U Y
W ORTHINGTON, in his individual
capacity and as an employee of the
City of Albuquerque,

Defendants - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D .C . N O. C IV -04-48-JB/LFG )

David M . Berlin, Duhigg, Cronin, Spring & Berlin, P.A., and M elissa Stephenson,
New M exico Victim’s Rights Project, Albuquerque, New M exico, for the Plaintiff
- Appellant.

Randy M . Autio, Assistant City Attorney (Peter S. Augh, Assistant City Attorney,
with him on the brief), Albuquerque, New M exico, for the D efendants -
Appellants, The City of Albuquerque and The Albuquerque Environmental H ealth
Department

Patrick D. Allen (April D. W hite, with him on the brief), Yenson, Lynn, Allen &
W osick, P.C., Albuquerque, New M exico, for the Defendant - Appellee, Guy
W orthington
Before L UC ER O, B AL DOC K , and HA RTZ, Circuit Judges.

HA RTZ, Circuit Judge.

Rick Camuglia appeals a summary judgment rejecting his claim that he was

denied substantive and procedural due process when his restaurant was

temporarily shut down for alleged health code violations. W e have jurisdiction

under 28 U.S.C. § 1291 and affirm.

I. B ACKGR OU N D

The evidence before the district court was as follows: On February 19,

2003, Guy W orthington, an employee of the Albuquerque Environmental H ealth

Department (EHD), inspected Paisano’s Restaurant, owned by M r. Camuglia.

M r. W orthington cited the restaurant for several violations, including

cockroaches. M r. Camuglia told M r. W orthington that the insect problem would

be immediately remedied, and invited him to return the next morning to reinspect

the premises.

M r. Camuglia contacted Glen W aters of AACTION Pest Control, who had

applied pesticides regularly at Paisano’s for some time. The following morning

M r. W aters began applying ULD 300, a pesticide that is approved for use in

restaurants but can be hazardous to humans. The “Directions for Use” on the

product label begin: “Do not apply directly to food. Food should be removed or

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covered during treatment. Do not apply while food processing is underway. All

food processing surfaces and equipment should be covered or washed with an

effective cleaning compound followed by a potable water rinse.” Aplt. App. at

58. The directions also state: “Close room or warehouse and shut off all

ventilating systems. . . . Do not remain in treated areas after application, and

leave room closed for at least one hour. Ventilate thoroughly before occupants

are allowed to re-enter.” Id.

M r. W aters testified in his deposition that no ventilating systems were on

and there was nobody in the restaurant when he began applying the ULD 300; that

it was his practice to close all doors in a building before he began spraying; and

that he did not see any exposed food in Paisano’s. He also testified that although

the U LD 300 spray settled on food-preparation areas and tables, Paisano’s

em ployees knew that it w as their responsibility to “wash everything . . . after w e

left. That was a standing rule that we had always talked about, before we ever did

anything in that restaurant. . . . By that time, they pretty much knew what the

deal was. This w asn’t the first time I w as there to do that kind of work.” A plt.

App. at 86. “[A]nybody that I work with there,” he continued, “knew not to be in

there when I was doing this. . . . They knew they couldn’t be in there for at least

an hour. I told them two hours just to be on the safe side.” Id. He added that

while he was spraying he did not see anyone in the restaurant until

M r. W orthington entered.

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 M r. W orthington arrived after M r. W aters had begun applying the pesticide.

His account contradicts M r. W aters’s account in several respects. He swore in an

affidavit that

the back door of the facility was w ide open and people w ere freely
entering and exiting the facility without regard for the presence of
chemicals. N o notice w as posted of the on-going fumigation. No
effort had been made to cover food, food preparation areas, tables, or
even the salt and pepper shakers. Out of concern for public safety, I
requested that all employees exit the restaurant and asked to see the
warning label for the pesticide being used.

Aplt. A pp. at 53-54.

M r. W orthington concluded that the ULD 300 was not being applied in

accordance with its warning label. He contacted his supervisor and together they

decided to suspend Paisano’s food-service permit temporarily. See Albuquerque,

N.M ., Code of Ordinances ch. 9, § 9-6-1-13(A) (1988) (hereinafter “Albuquerque

Code”) (“It shall be unlawful for any person to operate a food-service or food

processing establishment within the city who does not possess a valid permit

issued to him by the enforcement authority); id. at § 9-6-1-13(C) (“Permits may

be suspended by the enforcement authority for failure of the holder to comply

with the requirements of [the Code] or of other applicable laws, regulations or

ordinances.”). He then returned to his office and prepared an inspection report

which, in accordance with EHD policy, was faxed to local media outlets. See id.

at § 9-6-1-12(C) (“W henever an inspection of a food-service . . . establishment is

made, the findings shall be recorded on an enforcement authority inspection

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form. . . . The completed inspection report form is a public document that shall

be made available for public disclosure at the enforcement authority’s office to

any person who requests it.”). As a result, members of the media came to

Paisano’s that day and reported on the suspension of Paisano’s permit. The

following day, February 21, 2003, M r. W orthington reinspected Paisano’s and

reactivated its permit after concluding that any food that had been exposed to the

pesticide had been discarded and that the food preparation surfaces had been

cleaned.

Also on February 21, Steve Baca, an inspector for the New M exico

Department of Agriculture, which has oversight responsibility for pesticide

application, conducted an investigation to see whether the ULD 300 had been

properly applied. His report repeats the essential facts set forth above: (1)

M r. W orthington was concerned that the ULD 300 was not being properly

applied; (2) it was Paisano’s standard practice to wash all food preparation

surfaces after application of the pesticide; (3) any uncovered food had already

been thrown out; and (4) during past applications M r. W aters had discussed with

Paisano’s employees that they must remain outside during the application of the

pesticide and clean the premises after application, but this was not discussed

before this application. In addition, M r. Baca took three swab samples from

within the restaurant. He testified in his deposition that pesticide was “detected

on the kitchen electric box and the salad area light fixture, but not on the specials

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board in the dining area.” Aplt. App. at 110. He did not test the areas that he

was told had been cleaned, “like food prep areas, dishes, and any areas close to

the food.” Id. at 109. His inspection report states that he “noted a violation

because the operator should have clearly told M r. W orthington and the restaurant

staff that nobody was allowed into the treated area for one hour.” Aplt. App. at

65. W hen asked at his deposition whether anyone had entered before one hour

had expired, he responded: “That’s what it sounded like. No specific times w ere

given, but it sounded like pesticide application was stopped, [employees] were

showing up right around that time or soon after, that they were told to go in and

clean up, and that was about it pretty much.” Id. at 63. He further testified that

he believed that it was M r. W orthington who had directed the employees to go

into the restaurant to clean, but faulted M r. W aters because “he needed to make it

clear that nobody be in there, . . . .” Id.

M r. Camuglia filed suit in the United States District Court for the District

of New M exico. His Second Amended Complaint for D eprivation of Property

W ithout Due Process alleges three causes of action. The first, which is the only

one at issue on appeal, raises a claim under 42 U.S.C. § 1983 that the City of

Albuquerque (City), EHD, and M r. W orthington deprived him of due process of

law. It asserts that the application of the pesticide was not improper, and that

M r. W orthington acted “without permitting Plaintiff or its representatives to

contest the alleged violations, something they had a right to do as a matter of

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law.” Aplt. App. at 24. It further asserts that “W orthington’s acts were

intentional, willful and wanton and meant to deprive Plaintiff of property

rights . . . .” Id. at 25. In their motion for summary judgment the defendants

treated this cause of action as alleging deprivations of both procedural and

substantive due process. M r. Camuglia did the same in his response

memorandum, and the district court also addressed both claims. W e will

therefore treat the complaint the same w ay. (The second cause of action makes

the same allegations against the same defendants under the due process clause of

the N ew M exico Constitution; and the third cause of action is a libel claim against

an EHD employee. The district court granted summary judgment on the state

constitutional claim; and the libel claim was dismissed by M r. Camuglia w ith

prejudice.)

M r. Worthington moved for summary judgment on the § 1983 claims. He

asserted that he was entitled to qualified immunity because there was no

constitutional violation and, in the alternative, no violation of clearly settled law.

The district court agreed on both grounds and granted the motion.

At a later hearing the City orally moved for summary judgment.

M r. Camuglia conceded that “[t]he case law is clear, if the underlying

individual’s out, then the municipality is also out.” A plt. App. at 205. Shortly

thereafter the district court granted summary judgment to the City (apparently

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treating EHD and the City as the same party, a course we also take).

M r. Camuglia appeals only the adverse judgments on the § 1983 claims.

II. D ISC USSIO N

“W e review the grant of summary judgment de novo, applying the same

standard the district court should apply under Fed. R. Civ. P. 56(c).” Hayes v.

M arriott, 70 F.3d 1144, 1146 (10th Cir. 1995). Ordinarily, the district court must

“view the record in the light most favorable to the party opposing summary

judgment” and should grant summary judgment only “when there is no genuine

dispute over a material fact and the moving party is entitled to judgment as a

matter of law.” Id. (internal quotation marks omitted). This standard applies to

the City’s motion for summary judgment. It is somewhat modified with respect to

M r. W orthington, however, because he has asserted qualified immunity. W e now

turn to the claims against M r. W orthington, first explaining the effect of his

assertion of qualified immunity.

A. Claims Against M r. W orthington

1. Q ualified Immunity

Under the qualified-immunity doctrine, “government officials performing

discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he affirmative defense of qualified

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immunity . . . protects all but the plainly incompetent or those who knowingly

violate the law.” M edina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (internal

quotation marks omitted). In contrast to a typical motion for summary judgment,

which places the initial burden on the moving party, a motion based on a claim of

qualified immunity imposes that burden on the plaintiff:

W hen a defendant asserts a qualified immunity defense, the burden
shifts to the plaintiff, who must first establish that the defendant
violated a constitutional right. If no constitutional right would have
been violated were the allegations established, there is no necessity
for further inquiries concerning qualified immunity. If, on the other
hand, a violation has been shown, the next step in the qualified
immunity sequence is to ask whether the constitutional right was
clearly established. . . . The relevant dispositive inquiry in
determining whether a right is clearly established is w hether it would
be clear to a reasonable officer that his conduct was unlawful in the
situation.

Cortez v. M cCauley, 438 F.3d 980, 988 (10th Cir. 2006) (internal quotation marks

and citations omitted). Thus, we now turn to whether M r. Camuglia has presented

evidence that would establish the violation of a constitutional right. As noted, he

claims violations of both procedural and substantive due process. W e start with

his procedural-due-process claim.

2. Procedural Due Process

M r. Camuglia contended in district court that his procedural-due-process

rights were “violated . . . when [M r. W orthington] closed Paisano’s and notified

the media without providing M r. Camuglia with any level of process.” Aplt. App.

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at 75. The district court disagreed, determining that M r. W orthington’s actions

were in accordance with Albuquerque Code ch. 9, § 9-6-1-13(C), which states:

Notwithstanding the other provisions of §§ 9-6-1-1 et seq., whenever
the enforcement authority finds an imminent health hazard or other
conditions in the operation of a food-service or food processing
establishment which, in his judgment, constitute a substantial hazard
to the public health, he may without any prior warning, notice, or
hearing, issue a written notice to the permit holder or operator citing
such condition, specifying the corrective action to be taken, and
specifying the time period within which action shall be taken; and, if
deemed necessary, such order shall state that the permit is
immediately suspended and all food-service or food processing
operations are to be immediately discontinued. Any person to whom
such an order is issued shall comply immediately therewith. An
opportunity for a hearing will be provided if a w ritten request for a
hearing is filed with the enforcement authority by the permit holder
within five working days. The hearing shall be held within five
working days after the date of the filing of the written request for the
hearing.

(emphasis added). M r. Camuglia conceded to the district court that this ordinance

is constitutional. He argued, however, that M r. W orthington’s actions w ere not in

accordance with the ordinance because there was no “substantial hazard.” The

district court’s order rejected this argument:

Camuglia disputes whether in fact there was a “substantial
hazard” to the public. He does not, however, dispute that
W orthington, “in his judgment,” concluded there was a substantial
hazard and decided suspending Camuglia’s license w as in the interest
of public safety. [The ordinance] authorized W orthington to use his
discretion. A mere misapplication or violation of a city ordinance
does not become a violation of federal due process rights.

Camuglia v. City of Albuquerque, 375 F.Supp.2d 1299, 1309 (D.N.M . 2005). The

district court therefore held that M r. Camuglia was not deprived of procedural due

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process. Although our analysis is somewhat different, we agree with the district

court’s conclusion.

“W e engage in a two-step inquiry [in determining whether an individual’s

procedural-due-process rights were violated]: (1) Did the individual possess a

protected property interest to which due process protection was applicable? (2)

W as the individual afforded an appropriate level of process?” Clark v. City of

Draper, 168 F.3d 1185, 1189 (10th Cir. 1999) (internal quotation marks omitted).

On this appeal we are not concerned with the first step because M r. W orthington

concedes that M r. Camuglia had a protected property interest.

As for the second step, ordinarily one who has a protected property interest

is entitled to some sort of hearing before the government acts to impair that

interest, although the hearing need not necessarily provide all, or even most, of

the protections afforded by a trial. See M athews v. Eldridge, 424 U.S. 319, 335

(1976) (the type of hearing required depends on (1) the nature of the private

interest at stake; (2) the risk of erroneous deprivation given the procedures

already guaranteed, and whether additional procedural safeguards would prove

valuable; and (3) the government’s interest, and the burdens that additional

procedures might impose). But “due process is flexible and calls [only] for such

procedural protections as the particular situation demands.” Id. at 334 (internal

quotation marks and brackets omitted). For example, “[w ]here . . . the state must

act quickly, a meaningful postdeprivation hearing is adequate.” Clark, 168 F.3d

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at 1189; see also Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1988)

(removal of child from parents’ custody requires predeprivation hearing “except

for extraordinary situations where some valid governmental interest is at stake

that justifies postponing the hearing until after the event.” (internal quotation

marks omitted)).

In matters of public health and safety, the Supreme Court has long

recognized that the government must act quickly. Quick action may turn out to be

wrongful action, but due process requires only a postdeprivation opportunity to

establish the error. In North American Cold Storage Co. v. City of Chicago, 211

U.S. 306, 315 (1908), the Supreme Court rejected the argument that the city was

required to have a hearing before seizing putrid poultry:

The general power of the state to legislate upon the subject embraced
in the above ordinance of the city of Chicago, counsel does not deny.
Nor does he deny the right to seize and destroy unwholesome or
putrid food, provided that notice and opportunity to be heard be
given the owner or custodian of the property before it is destroyed.
W e are of opinion, however, that provision for a hearing before
seizure and condemnation and destruction of food which is
unwholesome and unfit for use is not necessary. The right to so seize
is based upon the right and duty of the state to protect and guard, as
far as possible, the lives and health of its inhabitants, and that it is
proper to provide that food which is unfit for human consumption
should be summarily seized and destroyed to prevent the danger
which would arise from eating it. The right to so seize and destroy
is, of course, based upon the fact that the food is not fit to be eaten.
Food that is in such a condition, if kept for sale or in danger of being
sold, is in itself a nuisance, and a nuisance of the most dangerous
kind, involving, as it does, the health, if not the lives, of persons who
may eat it.

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(internal citation omitted). This holding has been repeatedly reaffirmed. See,

e.g., M ackey v. M ontrym, 443 U.S. 1, 17 (1979) (“W e have traditionally accorded

the states great leeway in adopting summary procedures to protect public health

and safety. States surely have at least as much interest in removing drunken

drivers from their highways as in summarily seizing mislabeled drugs or

destroying spoiled foodstuffs.”); Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663, 679 (1974) (“[D]ue process is not denied when postponement of

notice and hearing is necessary to protect the public from contaminated

food . . . .”); Fuentes v. Shevin, 407 U.S. 67, 91-92 (1972) (“[T]he Court has

allowed summary seizure of property . . . to protect the public from . . .

contaminated food.”).

W e have followed these precedents in this circuit. In Clark a child was

scratched by two blue foxes w hile on a school field trip to a petting zoo. His

mother took him to the emergency room, and a local animal control officer was

contacted. The officer learned that the foxes w ere considered “wild” under state

law for purposes of rabies control, and are required to be tested whenever they

bite or scratch a person. A city judge issued an order of impoundment without

notice to the zoo owner. The foxes w ere impounded until a hearing could be held

the next morning. After the hearing, the animals were killed. The zoo owner

filed suit alleging a due-process violation. After a detailed discussion of the zoo

owner’s property interest in the foxes, which “was subject to the city’s police

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power,” we concluded that the postdeprivation hearing was adequate,

“particularly in light of the government’s strong interest in public health and in

the speedy resolution of rabies tests on the foxes.” Clark, 168 F.3d at 1189-90.

In light of this precedent it cannot be denied that the City, acting through

its inspectors, may close a restaurant to protect the health of patrons and workers

without first providing a hearing to the restaurant owner. Indeed, M r. Camuglia

acknowledges the constitutionality of the ordinance under which M r. W orthington

acted, even though it provides for a hearing only after suspension of the permit.

See Albuquerque Code ch. 9, § 9-6-1-13(C). W hat M r. Camuglia complains about

is that, in his view, M r. W orthington had no basis for suspending the

permit— M r. W orthington was wrong about the health danger, perhaps even

intentionally and maliciously wrong. As stated by his counsel at oral argument

before the district court: “W e’re not challenging the constitutionality of the

ordinance itself. W e’re contesting or challenging the manner in which it was

applied in this particular instance, because there’s no substantial hazard.” A plt.

App. at 157; see also id. at 152 (“So under these circumstances he was denied due

process procedurally, because without an imminent danger, he was entitled to a

hearing.” (emphasis added)). At one point in the hearing, counsel for

M r. Camuglia stated: “They can close [the restaurant] if there’s an imminent

danger, but if there’s not an imminent danger, then [the Ordinance] provides

differently.” Id. at 154.

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 This argument misses the point. It concedes that limiting the owner to a

postdeprivation hearing comports with due process when the government has

acted properly, but contends that a predeprivation hearing is required when the

government has erred. In other words, the government can delay the hearing until

after the deprivation only when the deprivation was in fact lawful. W e might ask

why even a postdeprivation hearing is required in that circumstance, when one is

conceding that the government did nothing wrong. The purpose of a hearing,

after all, is to determine whether government conduct has been (or would be)

unlawful. W hen the Supreme Court states that granting just a postdeprivation

hearing is constitutionally adequate, it is saying that determining the propriety of

government action can wait. As the Court wrote in North American Cold Storage

Co., 211 U.S. at 316:

The ex parte finding of the health officers as to the fact [that food is
contaminated] is not in any way binding upon those who own or
claim the right to sell the food. If a party cannot get his hearing in
advance of the seizure and destruction he has the right to have it
afterward, which right may be claimed upon the trial in an action
brought for the destruction of his property, and in that action those
who destroyed it can only successfully defend if the jury shall find
the fact of unwholesomeness, as claimed by them.

This is why the disputed facts here are irrelevant to the procedural-due-

process claim. They relate only to whether M r. W orthington was correct in his

judgment that the U LD 300 was being improperly used and that the restaurant’s

permit should be temporarily suspended as a result. But they are irrelevant to

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whether M r. Camuglia was entitled to a hearing before suspension of his permit.

The process one is due is not dependent on whether the government was right or

wrong in the particular case but on whether, in general, constitutional norms

require particular procedures to balance private and public interests. Postponing

the hearing may, as M r. Camuglia contends happened here, cause harm. The

Supreme Court, however, has recognized that possibility and ruled that the public

interest in prompt action permits that action to precede a hearing in public-health

matters. M r. Camuglia may have a remedy for a governmental error, but he

cannot claim that he has been deprived of procedural due process.

3. Substantive D ue Process

Nor can M r. Camuglia prevail on a claim of a substantive-due-process

violation. In his response to M r. W orthington’s m otion for summary judgment,

M r. Camuglia contended below that M r. W orthington’s actions were “arbitrary,

capricious and without a rational basis,” because “there were no grounds upon

which Defendants should have issued a citation and then notify the media that

Paisano’s had somehow become an unhealthy facility in which to eat.” A plt.

App. at 77. The district court disagreed:

Although Camuglia argues that W orthington was not using sound
discretion, “the D ue Process Clause ‘is not a guarantee against
incorrect or ill-advised [government] decisions.’” Uhlrig v. Harder,
64 F.3d [567,] 573 [(10th Cir. 1995)] (citing Collins v. City of
Harker Heights Tex., 503 U.S. [115,] 129 [1992]). Even if
W orthington made a poor decision, Camuglia presents no evidence
that W orthington’s actions w ere arbitrary, capricious, or w ithout a

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 rational basis. . . . Thus, Camuglia’s allegations do not meet the high
standard that the Supreme Court set for substantive due process
claims in County of Sacramento v. Lewis[, 523 U.S. 833 (1998)].

Camuglia, 375 F.Supp.2d at 1309-1310. In our view , the district court had it

right.

“An arbitrary deprivation of an individual’s property right can violate the

substantive component of the Due Process Clause.” Clark, 168 F.3d at 1190. But

the arbitrariness must be extreme.

The ultimate standard for determining whether there has been a
substantive due process violation is whether the challenged
government action shocks the conscience of federal judges. It is w ell
settled that negligence is not sufficient to shock the conscience. In
addition, a plaintiff must do more than show that the government
actor intentionally or recklessly caused injury to the plaintiff by
abusing or misusing government power.

M oore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006) (internal quotation marks

and citations omitted). “[T]he plaintiff must demonstrate a degree of

outrageousness and a magnitude of potential or actual harm that is truly

conscience shocking.” Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995). This

is a “high level of outrageousness.” Id. Establishing these limits advances

“three basic principles highlighted by the Supreme Court in evaluating

substantive due process claims: (1) the need for restraint in defining their scope;

(2) the concern that § 1983 not replace state tort law; and (3) the need for

deference to local policymaking bodies in making decisions impacting upon

public safety.” Id. at 573 (internal citations omitted).

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 Even view ing the evidence in the light most favorable to M r. Camuglia, w e

can say with confidence that he has not demonstrated a substantive-due-process

violation. He does not contend that M r. W orthington acted unreasonably when he

first came to Paisano’s and noted certain violations. M r. Camuglia assured

M r. W orthington that they would be taken care of and invited him to return the

next day. He did so, and became concerned about the application of the ULD

300. He spoke w ith his supervisor and they agreed to suspend the restaurant’s

permit temporarily. The restaurant was shut down for only one day, and the

permit was immediately restored once contaminated food had been disposed of

and food-preparation surfaces had been cleaned. As for notification to the media,

the ordinance requires that the inspection report “be made available for public

disclosure . . . to any person who requests it.” Albuquerque Code ch. 9,

§ 9-6-1-12(C), and, after repeated requests by media outlets for the reports, the

City had adopted a policy of automatically faxing them to the media. Thus,

sending the report to the media was a routine part of M r. W orthington’s job. The

conduct of M r. W orthington does not shock the conscience.

B. Claims Against the City

Only individuals, not municipalities, are protected by qualified immunity.

The City may be liable even if M r. W orthington is not:

W hile it would be improper to allow a suit to proceed against the city
if it was determined that the officers’ action did not amount to a
constitutional violation, there is nothing anomalous about allowing

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 such a suit to proceed when immunity shields the individual
defendants. The availability of qualified immunity does not depend
on whether a constitutional violation has occurred. W hile a
government official who violates the constitution will be protected if
his or her actions were reasonable in light of clearly established law
and the information the official possessed when he or she acted,
municipalities enjoy no such shield.

Watson v. City of Kansas City, Kan., 857 F.2d 690, 697 (10th Cir. 1988) (internal

citation omitted). Here, however, we have determined that there was no

constitutional violation. “A municipality may not be held liable where there was

no underlying constitutional violation by any of its officers.” Hinton v. City of

Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). The City was therefore also

entitled to summary judgment.

III. C ON CLU SIO N

W e AFFIRM the summary judgment granted by the district court.

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