Lamarr Rowell v. Ewing Bros. Towing Co. , 471 F. App'x 597 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAMARR ROWELL, No. 10-16861
Plaintiff - Appellant, D.C. No. 2:07-cv-01169-RCJ-RJJ
v.
MEMORANDUM *
EWING BROS. TOWING CO.; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, Chief Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Lamarr Rowell, a Nevada state prisoner, appeals pro se from the district
court’s dismissal order and summary judgment in his 42 U.S.C. § 1983 action
alleging constitutional violations in connection with his arrest and the towing of his
car subsequent to his arrest. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo a district court’s grant of summary judgment and dismissal under
Heck v. Humphrey, 512 U.S. 477 (1994). Whitaker v. Garcetti, 486 F.3d 572, 579
(9th Cir. 2007). We review for an abuse of discretion a dismissal for failure to
serve. Puett v. Blanford, 912 F.2d 270, 276 (1990). We affirm in part, vacate in
part, and remand.
The district court granted summary judgment on Rowell’s due process
claims after concluding that the defendant police officers were not responsible for
the sale of Rowell’s car. However, the district court did not address Rowell’s due
process claim regarding the lack of notice about his car being towed. Rowell
stated in his deposition and other court filings that defendant Hiddema was
responsible for the towing; that she knew that the address she provided on the
impoundment report was inaccurate; and that, because she failed to ensure that he
received a copy of the impoundment report, he had no notice that his allegedly
legally parked vehicle had been towed or by whom. He also asserted that he
should have been given an opportunity to have someone move the vehicle before it
was towed. The district court did not address these issues. Accordingly, we vacate
summary judgment as to Hiddema, and remand for the district court to consider in
the first instance whether Rowell was provided adequate notice regarding the
towing of his vehicle. See, e.g., Clement v. City of Glendale, 518 F.3d 1090, 1097
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(9th Cir. 2008) (discussing the importance of government providing notice to
vehicle owners in the context of towing, and noting that the “responsibility to give
notice falls on the police”). The court should also consider whether Hiddema’s
provision of an address she allegedly knew to be outdated on the impound report
contributed to deficiencies in notice regarding the sale of Rowell’s vehicle. See,
e.g., Robinson v. Hanrahan, 409 U.S. 38, 40 (1972) (per curiam).
If the district court determines that Hiddema violated Rowell’s due process
rights, it should also address the question of qualified immunity. See, e.g., Scofield
v. City of Hillsborough, 862 F.2d 759, 765 (9th Cir. 1988).
Summary judgment on Rowell’s due process claims is proper as to
defendants Giannone, Seed and Young because Rowell conceded that they played
no role in the towing or sale of his vehicle.
The district court did not abuse its discretion in dismissing Rowell’s claims
against Ewing Bros. Towing Co. for failure to serve, because Rowell did not show
good cause for why he did not take steps to correct deficiencies in service once
Ewing Bros. notified him that it had not been properly served. See Fed. R. Civ. P.
4; c.f. Puett, 912 F.2d at 274-76.
The district court properly dismissed Rowell’s Fourth Amendment search
and seizure claims arising from his arrest because they were Heck-barred. See
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Heck, 512 U.S. at 483-87; Szajer v. City of Los Angeles, 632 F.3d 607, 611 (9th
Cir. 2011) (recognizing that Heck extends to Fourth Amendment search and
seizure claims). However, because claims barred by Heck should be dismissed
without prejudice, we vacate the judgment as to these claims, and remand with
instructions for the district court to dismiss these claims without prejudice. See
Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam).
Rowell’s remaining contentions, including those relating to not having been
prosecuted for the “ex felon failure to change address” charge, are unpersuasive.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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