Theodore Edenstrom v. Thurston County

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEODORE BRUCE EDENSTROM, No. 17-35786
Plaintiff-Appellant, D.C. No. 3:16-cv-05982-RJB
v.
MEMORANDUM*
THURSTON COUNTY, a municipal
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Theodore Bruce Edenstrom appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging constitutional violations relating
to land use regulation. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Dodd v. Hood River County, 136 F.3d 1219, 1224 (9th Cir. 1998). We
*
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).
affirm.
The district court properly granted summary judgment on Edenstrom’s due
process and takings claims premised on a Notice of Violation letter because
Edenstrom failed to raise a genuine dispute of material fact as to whether
defendants took his property and whether Edenstrom pursued available state
administrative or judicial remedies after a final decision. See Tahoe–Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321-28 (2002)
(distinguishing cases involving physical takings and regulations that cause a
taking); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized
intentional deprivation of property by a state employee does not constitute a
violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available.”); Rancho de Calistoga v. City of Calistoga, 800 F.3d 1083, 1089 (9th
Cir. 2015) (discussing finality and exhaustion requirements for regulatory takings
claims).
The district court properly granted summary judgment on Edenstrom’s
Fourth Amendment claim because Edenstrom failed to raise a genuine dispute of
material fact as to whether defendants’ conduct constituted a seizure for purposes
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of the Fourth Amendment. See Lavan v. City of Los Angeles, 693 F.3d 1022, 1027
(9th Cir. 2012) (“A seizure of property occurs when there is some meaningful
interference with an individual’s possessory interests in that property.” (citation
and internal quotation marks omitted).
The district court did not abuse its discretion in denying Edenstrom’s motion
for reconsideration because Edenstrom failed to establish any ground for relief.
See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration
under Fed. R. Civ. P. 59(e) and 60(b)).
The district court did not abuse its discretion in denying Edenstrom’s motion
to recuse Judge Bryan because Edenstrom failed to identify any ground for recusal.
See 28 U.S.C. § 144 (requirements for recusal); Yagman v. Republic Ins., 987 F.2d
622, 626 (9th Cir. 1993) (standard of review; “recusal will be justified either by
actual bias or the appearance of bias”).
We reject as meritless Edenstrom’s contention that his Seventh Amendment
right to a jury trial has been violated. See Johnson v. Neilson (In re Slatkin ), 525
F.3d 805, 811 (9th Cir. 2008) (“[A] summary judgment proceeding does not
deprive the losing party of its Seventh Amendment right to a jury trial.”).
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We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Appellees’ motion to strike Edenstrom’s opening brief (Docket Entry No. 6)
is denied.
AFFIRMED.
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