William Whitsitt v. Jean Zedlitz ( 2011 )


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  •                                                                               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    NOT FOR PUBLICATION                               NOV 02 2011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
    2                                   08-17526
    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
    3                                    08-17526
    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.
    4                                     08-17526
    Whitsitt shall bear the costs on appeal.
    AFFIRMED in part, VACATED in part, and REMANDED.
    5              08-17526