Opinion
Case No. C-01-0010-MMC
February 11, 2002
JOHN A. RUSSO, City Attorney State Bar #129729 RANDOLPH W. HALL, Assistant City Attorney State Bar #080142 RACHEL WAGNER, Deputy City Attorney State Bar #127246 CHRISTOPHER KEE, Deputy City Attorney — State Bar #157758 One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612 Telephone: (510) 637-0268 X00756:281 274 Attorneys for Defendants CITY OF OAKLAND, et al.
ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT OR ALTERNATIVELY PARTIAL SUMMARY JUDGEMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEROF
The Court rules on defendants' Motion for Summary Judgment, or Alternatively, Partial Summary Judgment as follows and the February 15, 2002 hearing is vacated.
Plaintiffs Fourth Amendment Claims:
Defendants are entitled to judgment as to plaintiffs Fourth Amendment claims because plaintiff cannot show that he was subjected to any unreasonable seizure. As an initial matter, it does not appear from these facts that plaintiff was actually "seized" as that term is understood under Fourth Amendment jurisprudence. Terry v. Ohio, 392 U.S. 1, 19. N. 16, 88 S.Ct. 1868,1879 n. 16, Dalyrimple v. Rena, 164 F. Supp.2d 1364 (S.D. FL. 2001) (protestors not seized when they left premises when told to do so by police officers).
Even were plaintiff deemed to have been seized, there has been no Fourth Amendment violation because the alleged seizure was reasonable as a matter of law. Balancing the governmental interests on the one hand against the nature and quality of the intrusion on plaintiffs individual rights on the other, it is clear that the government's interests must prevail. Here the government's substantial interest in the safe and efficient operation of the library outweighs the minimal intrusion on plaintiffs rights represented by a two-hour suspension of his library privileges. Terry, supra, at 20-24, 1879-81, Kreimer Bureau of Police for the Town of Morristown, 958 F.2d 1242,1255 (3rd Cir. 1992).
Plaintiffs Due Process Claims:
Defendants are entitled to judgment as to plaintiffs due process claims because plaintiff received constitutionally adequate process. has established any protected liberty or property interes 971,975 (9th Cir. 1994).
Second, the record demonstrates that plaintiff did indeed have notice of the regulations that were the basis for his December 30th expulsion, and an opportunity to be heard, prior to the December 30th incident.
Even were this not so, the constitution does not require defendants to have given plaintiff a hearing prior to his expulsion. Balancing plaintiffs private interest against the risk of erroneous deprivation and the governmental interest at issue, it is clear that no hearing was required, or indeed practical before plaintiff was temporarily expelled from the library. Mathews v. Eldridge, 424 U.S. 319,335, 96 S.Ct.893 (1976).
Furthermore, as to any entitlement to a post-deprivation hearing, plaintiff has waived that claim by failing to avail himself of the opportunities to air his grievances either administratively or judicially following the December 30th incident. Hroch v. City of Omaha, 4 F.3d 693,696 (8th Cir. 1993), Connor v. City of Santa Ana, 897 F.2d 1487,1493 (9th
Cir. 1990).
Plaintiffs Equal Protection Claims:
Defendants are entitled to judgment as to plaintiffs equal protection claims because plaintiff cannot show any intent by defendants to discriminate against him on the basis of his race, gender or social class. Plaintiffs evidence is limited to his own expulsion and that of Mr. Shears, who is not similarly situated to plaintiff. Even if he were, the two incidents standing alone are insufficient to show an intent to discriminate against plaintiff on the basis of any protected status or category. Personnel Admr of Mass. v. Feeney, 442 U.S. 256,279, 99 S.Ct. 2282,2296 (1979), Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,265, 97 S.Ct. 555,563 (1977).
Dismissal of Defendants:
The public entities must be dismissed, because there is no evidence that any of plaintiffs alleged constitutional injuries were caused by a policy, custom, or practice of such entities. The two or three incidents offered here are insufficient to establish such a practice or custom such that the public entities may be liable for the alleged constitutional injuries. Trevino v. Gates, 99 F.3d 911,918 (9th Cir. 1996).
In addition, the defendant Oakland Police Officers as well as the defendant library staff and security officers must be dismissed on the grounds of qualified immunity because 1) there is no underlying constitutional injury, 2) the rights claimed to have been violated — unlawful delegation of authority to private security guards and the right to a hearing prior to his expulsion — were not clearly established and 3) because those defendants could have reasonably believed their conduct to have been lawful. Saucier v. Katz, 121 S.Ct. 2151 (2001).
For the foregoing reasons and good cause appearing therefore, defendants' motion for summary judgment is GRANTED and plaintiffs complaint is DISMISSED.