Dornon v. Jurgens , 636 F. App'x 457 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 28, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DONALD DORNON,
Plaintiff - Appellant,
v. No. 15-3137
(D.C. No. 5:14-CV-04065-RDR-KMH)
CHRIS JURGENS, Chief of Police in his (D. Kan.)
individual capacity; RICHARD FORD,
Ordinance Officer in his individual
capacity; DAN GOODMAN, Mayor in his
individual capacity; EVERETT GREEN,
Ward I Councilman in his individual
capacity; BO PARKINSON, Ward I
Councilman in his individual capacity;
GARY EITEL, Ward 2 Councilman in his
individual capacity; JONATHAN
BRUNSWIG, Ward 2 Councilman in his
individual capacity; JACK SCHMITT,
Ward 3 Councilman in his individual
capacity; PERRY NOWAK, Ward 3
Councilman in his individual capacity;
JOSHUA GOODEN, Ward 4 Councilman
in his individual capacity; FRED
KUNTZSCH, Ward 4 Councilman in his
individual capacity; TED KUFFLER, in his
individual capacity; JOHN SHIRLEY, City
Attorney in his individual capacity,
Defendants - Appellees.
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CITY OF SCOTT CITY, KANSAS,
Intervenor.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
_________________________________
This case stems from an abatement of nuisance conditions on Donald Dornon’s
property in Scott City, Kansas. Acting under the city code, officials removed items
from the property in May 2014. Dornon, proceeding pro se, sued several city
officials alleging they violated his constitutional rights. The district court granted the
defendants’ motion to dismiss for failure to state a claim. Dornon appeals, and we
affirm.
I. Background
Scott City’s code prohibits a property owner to allow “conditions which are
injurious to the health, safety or general welfare of the residents of the city or conditions
which are detrimental to the aesthetic characteristics of adjoining properties,
neighborhoods or the city.” Code of the City of Scott City, Kansas § 4-4-6 (2013). The
city may remove items from private property to abate such conditions after notifying the
owner and giving him an opportunity to remedy the violation or seek a hearing in the
matter. See id. §§ 4-4-7, 4-4-9.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2
After the city removed items from Dornon’s property in accordance with this
provision, Dornon brought this lawsuit under 42 U.S.C. § 1983, claiming that Scott City’s
mayor, city council members, chief of police, and others conspired to violate his
constitutional rights by passing the abatement provision and using it to search and seize
his property without a warrant or conviction. The district court ruled that Dornon’s
complaint failed to allege facts sufficient to state a plausible claim against any of the
defendants and granted their motion to dismiss under Fed. R. Civ. P. 12(b)(6). As
alternative grounds for dismissal, the court ruled that the mayor and city council members
were entitled to legislative immunity and that Dornon had failed to allege wrongful acts
by defendants Shirley, Kuffler, and Jurgens.
II. Analysis
We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6). See S.E.C. v.
Shields, 744 F.3d 633, 640 (10th Cir. 2014). A complaint must contain a “short and
plain statement of the claim showing that the [plaintiff] is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, the complaint must allege
facts that, if true, are sufficient “to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A
claim is facially plausible when the court can “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Because Dornon appears pro se,
we liberally construe his pleadings. Diversey v. Schmidly, 738 F.3d 1196, 1199
(10th Cir. 2013).
3
As the defendants correctly point out, Dornon does not challenge the district
court’s finding that the mayor and city council members are entitled to legislative
immunity. Nor does he dispute the court’s determination that he failed to allege
unlawful acts by Shirley, Kuffler, and Jurgens. Dornon has therefore waived any
argument that the district court erred by dismissing his claims against these
defendants on these grounds. See Blue Mountain Energy v. U.S. Dep’t of Labor,
805 F.3d 1254, 1259 n.3 (10th Cir. 2015).
That leaves only Dornon’s claim against defendant Ford, the public service
officer who conducted the abatement. We must determine whether the district court
erred when it held that Dornon failed to allege facts sufficient to state a plausible
claim against Ford under § 1983; that is, that Dornon failed to allege facts that, if
true, show Ford deprived him of his federal constitutional or statutory rights under
color of state law. See 42 U.S.C. § 1983; Brokers’ Choice of Am., Inc. v. NBC
Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014). Dornon’s complaint claims
that Ford “without a conviction or any warrant[,] . . . searched, seized, and destroyed
[his] personal property” under color of state law. R. at 10. Dornon refers generally
to his “constitutional rights” and various constitutional amendments, but he does not
identify the specific rights he accuses Ford of violating. The district court interpreted
Dornon’s claims to allege violations of his Fourth or Fourteenth Amendment rights,
and because Dornon does not explain how any other constitutional provisions apply,
we do the same.
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We have held that in the absence of egregious actions (which could violate
substantive due process) nuisance abatement does not violate a property owner’s
Fourth or Fourteenth Amendment rights if he is given adequate notice and an
opportunity for a hearing, and if the abatement is conducted in a reasonable manner.
See Santana v. City of Tulsa, 359 F.3d 1241, 1244-45 (10th Cir. 2004). Although
Dornon argues on appeal that the city seized items from the wrong property and that
the condition of his property did not warrant abatement under the code, we decline to
consider these arguments because Dornon failed to raise them in the district court.
See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). Otherwise,
Dornon does not identify any egregious action on the part of the city or any
unreasonableness in the performance of the abatement; and he does not dispute that
he was notified of the proposed abatement and failed to request a hearing. He argues
only that Ford seized his property without a warrant or conviction. But neither was
required for the civil abatement here. The district court did not err by holding that
Dornon’s complaint failed to state a plausible claim for relief under § 1983.
III. Conclusion
We affirm the district court’s order dismissing Dornon’s claims.
Entered for the Court
Harris L Hartz
Circuit Judge
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