Kimberly Askew v. County of Clark ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY TERESE ASKEW, No. 21-15310
Plaintiff-Appellant, D.C. No.
2:18-cv-02026-APG-BNW
v.
COUNTY OF CLARK; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted August 9, 2022
San Francisco, California
Before: OWENS, BADE, and BRESS, Circuit Judges.
Plaintiff-Appellant Kimberly Terese Askew appeals from the district court’s
grant of summary judgment in favor of Defendants-Appellees Clark County, the
Animal Foundation (the “Foundation”), Tiffany Bonnell, Stephanie Clevinger, and
Jason Allswang (collectively, the “County Defendants”), and Defendant-Appellee
Sandra Southwell, on Askew’s claims under 42 U.S.C. § 1983 and Nevada law.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part,
and remand.
1. The district court properly granted summary judgment on Askew’s
Fourth Amendment claims, as these claims are barred under Heck v. Humphrey,
512 U.S. 477, 486–87 (1994). The challenged searches and seizure formed the
basis for the investigation and prosecution of Askew for animal cruelty, as Askew
argued in support of her motion to suppress during her criminal proceedings. See
Whitaker v. Garcetti, 486 F.3d 572, 583 (9th Cir. 2007). Askew has not identified
any independent evidence, apart from the evidence obtained from the challenged
searches and seizure, that could have supported the charges and ultimate
conviction.
2. The district court properly granted summary judgment on Askew’s
due process claims. As for Askew’s due process claim against Southwell, Askew
did not challenge in her opening brief the district court’s alternative holding that
Southwell was entitled to qualified immunity, so Askew has forfeited her challenge
to the district court’s grant of summary judgment on this claim. See Eberle v. City
of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). As for Askew’s due process claim
against the County Defendants, we conclude that Clark County Code § 10.32.020
afforded Askew adequate process. Askew’s due process rights were not violated
by the lack of a pre-deprivation hearing, and § 10.32.020 provided Askew adequate
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post-deprivation process. See Recchia v. City of L.A. Dep’t of Animal Servs., 889
F.3d 553, 561–62 (9th Cir. 2018); cf. Buckingham v. Sec’y of U.S. Dep’t of Agric.,
603 F.3d 1073, 1084 (9th Cir. 2010) (no due process violation when claimant was
“permitted to give oral argument” and “present written arguments and evidence on
his own behalf”); Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005)
(no due process violation resulting from the “absence of a post-deprivation hearing
. . . in light of the opportunity for such a hearing that was given to the
[claimants]”); First Nat’l Bank & Tr. v. Dep’t of Treasury, Comptroller of
Currency, 63 F.3d 894, 898–99 (9th Cir. 1995) (no due process violation when
claimant was given an “opportunity to respond” and an “ample opportunity to
argue its position and to rebut the [opposition’s] conclusions before an impartial
tribunal”).
We reject Askew’s argument that Clark County Code § 10.32.020 is
preempted by Nev. Rev. Stat. § 574.100(9), as there is no conflict between those
statutes and there is no clear indication that the State intended to occupy the entire
field at issue. See Flick Theater, Inc. v. City of Las Vegas, 752 P.2d 235, 237
(Nev. 1988); Kuban v. McGimsey, 605 P.2d 623, 626 (Nev. 1980); Nev. Rev. Stat.
§ 244.359(1)(d) (providing that “[e]ach board of county commissioners may enact
and enforce an ordinance or ordinances . . . [p]rohibiting cruelty to animals”).
Last, because the district court did not err in determining that Askew was afforded
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sufficient due process, it was not error for the district court to decline to address
the constitutionality of Clark County Code § 10.32.020. See Wiren v. Eide, 542
F.2d 757, 762 (9th Cir. 1976).
3. The district court properly granted summary judgment in favor of the
County Defendants on Askew’s state-law conversion claim. Even viewing the
facts in the light most favorable to Askew, the district court correctly concluded
that Askew’s dogs were seized with lawful justification, see Clark County Code
§§ 10.08.130, 10.32.020(A), defeating a claim for conversion. Evans v. Dean
Witter Reynolds, Inc., 5 P.3d 1043, 1048 (Nev. 2000) (stating that conversion is a
“distinct act of dominion wrongfully exerted over another’s personal property”
(emphasis added) (citation and internal quotation marks omitted)). Askew does
not challenge the district court’s finding that the dogs in excess of the number of
dogs that she was permitted to have at her residence under Clark County Code
§ 10.08.130 were lawfully seized. Eberle, 901 F.2d at 818. Additionally, Askew
has not identified any genuine dispute of material fact that would preclude
summary judgment on the basis that the remaining dogs were lawfully seized
because of suspected mistreatment or that all were lawfully impounded even after
she posted a bond for some of the dogs. See Bodett v. CoxCom, Inc., 366 F.3d 736,
742 (9th Cir. 2004) (stating that a “genuine dispute of material fact exists where a
reasonable jury could return a verdict for the non-moving party” (citation
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omitted)).
As for Askew’s conversion claim against Southwell, we vacate the district
court’s judgment and remand for the district court to determine, in the first
instance, whether it lacked subject matter jurisdiction over this claim under Nev.
Rev. Stat. § 41.0337, an issue that Southwell raised for the first time on appeal.
See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999) (stating that
“[j]urisdiction to resolve cases on the merits requires . . . authority over the
category of claim in suit (subject-matter jurisdiction)”).1 We leave for the district
court to determine on remand whether leave to amend would be proper if it lacks
subject matter jurisdiction, or whether to exercise supplemental jurisdiction over
this claim, even if it decides the claim could proceed in federal court.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.2
1
Because Askew named Clark County in her complaint, Section 41.0337
does not affect her conversion claims against several of the County Defendants.
Nev. Rev. Stat. § 41.0337(1) (requiring that the “State or appropriate political
subdivision is named a party defendant” to any tort action brought against an
“[o]fficer or employee of the State or of any political subdivision” (emphasis
added)).
2
Costs are taxed against Askew. Fed. R. App. P. 39(a)(4).
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