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 2023-01

Keith Sekerke v. City of National City ( 2023 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JAN 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH WAYNE SEKERKE,                            No. 21-56062
Plaintiff-Appellant,            D.C. No. 3:19-cv-01360-LAB-MSB
v.
MEMORANDUM*
CITY OF NATIONAL CITY; et al.,
Defendants-Appellees,
and
NATIONAL CITY POLICE
DEPARTMENT,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 18, 2023**
Before:      GRABER, PAEZ, and NGUYEN, Circuit Judges.
Keith Wayne Sekerke appeals pro se from the district court’s judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissing his
    42 U.S.C. § 1983
     action alleging deprivation of property in violation
of the Fourteenth Amendment. We have jurisdiction under
    28 U.S.C. § 1291
    . We
review de novo. Watison v. Carter,
    668 F.3d 1108
    , 1112 (9th Cir. 2012) (dismissal
under
    28 U.S.C. § 1915
    (e)(2)(B)(ii); Resnick v. Hayes,
    213 F.3d 443
    , 447 (9th Cir.
2000) (dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Sekerke’s action because Sekerke
failed to allege facts sufficient to show that a meaningful post-deprivation remedy
was unavailable to him. See Hudson v. Palmer,
    468 U.S. 517
    , 531-33 (1984)
(neither negligent nor intentional deprivations of property constitute a due process
violation if a meaningful post-deprivation remedy is available); Barnett v. Centoni,
    31 F.3d 813
    , 816-17 (9th Cir. 1994) (“California [l]aw provides an adequate post-
deprivation remedy for any property deprivations.”).
We reject as unpersuasive Sekerke’s contention that he may not have a
meaningful post-deprivation remedy based on the hypothetical application of
unspecified state law immunity.
We do not consider Sekerke’s Fourth Amendment claim because Sekerke
failed to replead it in his operative complaint. See Lacey v. Maricopa County,
    693 F.3d 896
    , 928 (9th Cir. 2012) (en banc) (claims dismissed with leave to amend are
waived if not repled).
We do not consider matters not specifically and distinctly raised and argued
2                                   21-56062
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
Appellees’ motion for judicial notice (Docket Entry No. 23) is granted. All
other requests are denied.
AFFIRMED.
3                                       21-56062