Nixon v. Montgomery County MD , 251 F. App'x 141 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1235
DIANE L. NIXON; WILLIAM CLYDE LASSELL,
Plaintiffs - Appellants,
versus
MONTGOMERY COUNTY, MARYLAND; LINDA BIRD, a
Montgomery County resident, Supervisor, Code
Enforcement Section; KEVIN M. MARTELL,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(8:04-cv-03556-PJM)
Argued: September 25, 2007 Decided: October 12, 2007
Before MICHAEL and MOTZ, Circuit Judges, and Joseph F.
ANDERSON, Jr., United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed in part and reversed in part by unpublished per curiam
opinion.
ARGUED: David W. Brown, KNOPF & BROWN, Rockville, Maryland, for
Appellants. Sharon Veronica Burrell, Associate County Attorney,
COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville,
Maryland, for Appellees. ON BRIEF: Charles W. Thompson, Jr.,
County Attorney, Marc P. Hansen, Deputy County Attorney, Patricia
P. Via, Principal Counsel for Litigation, COUNTY ATTORNEY’S OFFICE
FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Diane Nixon and her husband, William Clyde Lassell,
(collectively “Nixon”) contend that Montgomery County Housing
officials violated constitutional rights and committed intentional
torts when they entered Nixon’s property, ostensibly to remove
weeds and other debris as authorized by the County Housing Code.
The district court granted summary judgment to all defendants,
concluding that the possible negligence of County officials did not
rise to the level of either a constitutional violation or an
intentional deprivation of property. We affirm in part and reverse
in part.
I.
On October 25, 2001, the Montgomery County Department of
Housing and Community Affairs received a complaint concerning the
property of Diane Nixon at 708 Ludlow Street, Silver Spring,
Maryland. Kevin Martell, a housing code inspector, visited Nixon’s
property and determined that it was in violation of the County
Code.
Martell sent a notice to Nixon dated October 25, 2001, by
certified mail, return receipt requested, stating that her property
was in violation of Chapter 58 of the Housing Code, which prohibits
“weeds and generalized growth to exceed 12 inches in height limit
in a subdivision.” The notice complied with Chapter 58 in all
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respects: it offered Nixon a 10-day waiting period, the
opportunity to appeal the notice, and the telephone numbers for the
Board of Appeals and for Martell. But the notice warned that on or
after November 5, 2001, the County would enter the property for the
purpose of bringing it into compliance with the Housing Code, with
Nixon responsible for the attending costs. The record includes the
return receipt, bearing the signature of Lassell (Nixon’s husband),
stamped October 26, 2001.
After receiving the letter, Nixon failed to appeal. Instead,
she maintains that she began cleaning her property, hiring local
youths to assist her. Nonetheless, early on November 7, 2001,
Martell and a work crew arrived at Nixon’s property, entered it
through a chain link gate that they removed from its hinges, and
proceeded to clean up the property.
Martell claims that the property was still in violation of the
Housing Code when he arrived on November 7, and that, in cleaning
the property, he cut back and removed dead vegetation, vines,
overgrown bamboo, logs of wood, and dead, dying, or leaning trees.
He acknowledges that he also removed a picnic table and
wheelbarrow, but maintains that these items were unusable and
constituted trash. In contrast, Nixon claims that the yard had
been sufficiently cleared of overgrowth by November 7 to be within
the Housing Code, and that Martell actually destroyed healthy
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trees, ornamental shrubs, and plants with an estimated value of
$17,362.
On November 5, 2004, Nixon filed this action against Martell,
his supervisor, Linda Bird, and the County, alleging violations of
Nixon’s constitutional rights to due process and freedom from
unreasonable search and seizures under both the federal and state
constitutions.* Nixon also alleged state tort claims for trespass
and conversion. The district court granted summary judgment to all
defendants on all claims.
II.
The Due Process Clause guarantees that “[n]o person shall
. . . be deprived of life, liberty, or property, without due
process of the law.” The Supreme Court has repeatedly affirmed
“the general rule that individuals must receive notice and an
opportunity to be heard before the Government deprives them of
property.” United States v. James Daniel Good Real Property, 510
U.S. 43, 48 (1993). Nixon raises two due process challenges.
She initially claims that the County’s notice failed to
identify the legal basis for all of the items that were removed.
Nixon notes that Chapter 58 of the Housing Code addresses only
weeds and generalized plant growth over 12 inches in height. A
*The parties agree that the state claims alleging violations
of the Maryland Constitution effectively rise or fall with the
federal claims. Therefore, we will not address them separately.
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separate section of the Housing Code, Chapter 48, addresses solid
waste matter, like the picnic table, wheelbarrow, and dead trees.
For this reason, Nixon claims the notice was deficient.
In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme
Court held that a court should determine the adequacy of
predeprivation process by balancing three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.
Applying these factors, we can only conclude that the County
provided constitutionally adequate process to Nixon concerning the
removal of the items covered by Chapter 58 and those covered by
Chapter 48. The removal of solid waste items, covered by Chapter
48, appears closely related to the clean-up of the Chapter 58
items. Although lacking specificity, the notice clearly presented
the County’s general concerns, indicated the County’s proposed
solution, and provided Nixon with a means to appeal if she so
chose.
Nixon, however, also claims that the County exceeded its
legitimate authority under any section of the Housing Code by
destroying healthy trees and a functional picnic table and
wheelbarrow. Although little record evidence beyond the testimony
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of Nixon and her husband supports such a claim, we must construe
the facts in the light most favorable to Nixon. Yet, even taking
these facts as a given, Nixon does not present a viable due process
claim because Maryland provides postdeprivation process that offers
Nixon sufficient redress for her alleged property loss.
When a deprivation of property occurs through the “random and
unauthorized acts” of a government employee, then the Constitution
requires only adequate postdeprivation process. See Zinermon v.
Burch, 494 U.S. 113, 128 (1990). In the present case, even
assuming that Martell and his work crew destroyed healthy trees and
a functional wheelbarrow and picnic table, the alleged destruction
did not occur as the result of established state procedures, but
rather through the “random and unauthorized acts” of government
employees.
Maryland presents Nixon with an entirely adequate
postdeprivation remedy for any unauthorized acts by local
government employees, like Martell and his work crew. The Local
Government Tort Claims Act provides that “local government shall be
liable for any judgment against its employee for damages resulting
from tortious acts or omissions committed by the employee within
the scope of employment with the local government.” Md. Code.
Ann., Cts. & Jud. Proc., § 5-303(b)(1). When liability attaches
under the Act, the local government forgoes governmental or
sovereign immunity in exchange for a $200,000 cap on each
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individual claim and a $500,000 cap on the total claim, as well as
freedom from punitive damages. § 5-303(a)-(c). If a local
government employee has acted with actual malice when committing
such tortious acts, then the judgment may be executed against the
employee and the local government may seek indemnification for any
sums it is required to pay. § 5-302(b)(2).
For these reasons, Nixon’s due process claims fail.
III.
The Fourth Amendment, made applicable to the states by the
Fourteenth, provides in pertinent part that the “right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated
. . . ” A “seizure” of property occurs when “there is some
meaningful interference with an individual’s possessory interests
in that property.” United States v. Jacobsen, 466 U.S. 109, 113
(1984). Moreover, the Fourth Amendment's protections apply in the
civil as well as the criminal context, and seizures of property are
subject to Fourth Amendment scrutiny regardless of whether a
“search” has taken place. Soldal v. Cook County, 506 U.S. 56, 67
(1992).
In Camara v. Municipal Court, 387 U.S. 523 (1967), the Supreme
Court held that administrative searches by health and housing
officials constituted significant intrusions on Fourth Amendment
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interests, and that such searches, when authorized and conducted
without a warrant procedure, lacked the traditional safeguards
guaranteed by the Fourth Amendment. Yet, as the Court has
repeatedly reaffirmed, often through explicit reference to Camara,
“reasonableness,” rather than a warrant, “is still the ultimate
standard under the Fourth Amendment,” and its determination will
reflect a “careful balancing of governmental and private
interests.” Soldal, 506 U.S. at 549 (internal quotation marks
omitted). Consequently, as a number of our sister circuits have
held, procedural due process guarantees can, in certain
circumstances, satisfy the Fourth Amendment reasonableness
requirement. See Santana v. City of Tulsa, 359 F.3d 1241, 1245
(10th Cir. 2004); Freeman v. Dallas, 242 F.3d 642, 647 (5th Cir.
2001); Samuels v. Meriwether, 94 F.3d 1163, 1168 (8th Cir. 1996).
But see Conner v. City of Santa Ana, 897 F.2d 1487, 1490-92 (9th
Cir. 1990).
In the case at hand, the County afforded Nixon numerous
procedural guarantees before it entered her property, including
prior written notice, a 10-day waiting period, and the opportunity
to appeal to a board of appeals. Nixon has not provided any
reasons why an ex parte warrant requirement would be more
satisfactory than the existing safeguards, and she has not alleged
that the particular procedures afforded to her failed to assure the
reasonableness of the County’s actions.
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Furthermore, even if Nixon could demonstrate an unreasonable
seizure occurred under the Fourth Amendment, Martell and Bird would
enjoy qualified immunity so long as they could have reasonably
believed that their behavior did not violate a constitutional
right. Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986). Even viewing the facts in the
light most favorable to Nixon, there is no evidence that any County
official “knowingly violate[d]” Nixon’s rights. On the contrary,
the record indicates that all County employees reasonably believed
themselves to be acting in accordance with the law during the
“clean and lien.”
For these reasons, Nixon’s Fourth Amendment claims likewise
fail.
IV.
Finally, we address Nixon’s state law conversion and trespass
claims. For both trespass and conversion, there is an implicit
defense if the acts are committed pursuant to a lawful purpose.
See Heinze v. Murphy, 24 A.2d 917, 922 (Md. 1942) (holding that an
officer entering an individual’s property in the line of duty was
not liable for trespass); Darcars Motors v. Borzym, 841 A.2d 828,
836 (Md. 2004) (recognizing that conversion is “not the acquisition
of the property by the wrongdoer, but the wrongful deprivation of
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a person of property to the possession of which he is entitled”).
Moreover, conversion is an intentional tort requiring both a
physical assertion of ownership over another’s property and the
mental intention to deprive that person of his or her lawful
property. Borzym, 841 A.2d at 836. Here, Nixon has offered no
evidence that any County official intentionally deprived her of any
property that she lawfully possessed. Thus, her conversion claim
fails.
The district court also rejected Nixon’s trespass claim.
Crucially, in contrast to conversion, trespass can involve either
“an intentional or negligent intrusion upon or to the possessory
interest in property of another.” Ford v. Baltimore City Sheriff's
Office, 814 A.2d 127, 129 (Md. App. 2002) (emphasis added). On
appeal, Nixon pursues only the trespass claim against Martell.
Construing the facts in her favor, as we must, the complaint does
state a trespass claim against Martell. Accordingly, we must
reverse the grant of summary judgment to Martell on this claim. Of
course, on remand the district court may exercise its discretion to
dismiss the state law claim against Martell, without prejudice, now
that no federal law claims remain. See United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966).
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V.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED IN PART AND REVERSED IN PART.
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