Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

John Wright MILLS, Plaintiff-Appellant,v.Patrolman MENCHACA, # 68; Sgt. Macedo, #S-19; Mr. GaleLarks, owner of Hustead's Towing Service of Berkeley,California; University of CA, Police Department; andDouglas Allen Carter, Defendants-Appellees.

No. 88-1822.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 1989.Decided June 22, 1989.

Before HUG, CYNTHIA HOLCOMB HALL and O'SCANNLAIN, Circuit Judges.


MEMORANDUM* 

Appellant John Wright Mills appeals the district court's dismissal of his amended complaint for damages under 42 U.S.C. § 1983 (1982). We treat the order of dismissal as an order granting summary judgment because the district court considered documents submitted by the parties that raised matters beyond the pleadings. See Fed. R. Civ. P. 12(b). Our jurisdiction rests on 28 U.S.C. § 1291 (1982), and our review is de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We affirm.

Mills first argues that he was deprived of liberty without due process of law. The arresting and handcuffing of Mills clearly implicated a liberty interest within the purview of the fourteenth amendment. See Ingraham v. Wright, 430 U.S. 651, 673-74 (1977) (protected liberty interests have always been thought to include freedom from bodily restraint). However, Mills received all the procedural protection of that interest that was constitutionally due. "Due process does not entitle an individual to a hearing prior to arrest based on probable cause." United States v. One 1967 Porsche, 492 F.2d 893, 895 (9th Cir. 1974). Based on Mills' own admissions and the routine computer check completed before the arrest, Officer Menchaca had probable cause to believe that Mills had violated California statutes requiring vehicle registration, display of license plates, and possession of an authorized driver's license. Because the arrest was constitutionally proper and Mills was released after the arresting procedure was complete, he cannot state a due process claim for deprivation of liberty.

Mills next maintains that the towing and storage of his truck deprived him of a constitutionally protected property interest without due process of law. Mills is correct that the uninterrupted use and enjoyment of one's own vehicle constitutes a protected property interest under the fourteenth amendment. Scofield v. City of Hillsborough, 862 F.2d 759, 762 (9th Cir. 1988). Here again, however, the procedural safeguards afforded Mills were constitutionally adequate.

The hallmarks of the protection afforded by the due process clause are notice and an opportunity to be heard at a meaningful time and in a meaningful way. Brady v. Gebbie, 859 F.2d 1543, 1554 (9th Cir. 1988), cert. denied, 109 S. Ct. 1577 (1989). Mills does not dispute that he received adequate notice before his truck was towed. Rather, he argues that he was entitled to a hearing on the legality of the tow either before or immediately after those actions.

Mills was not entitled to a pre-deprivation hearing. As authorized by statute, Officer Menchaca ordered the towing and storage of Mills' truck because Mills lacked a valid driver's license, and there was no licensed passenger who was authorized to remove the vehicle from the street. See Cal.Veh.Code Sec. 22651(p) (West 1985). The computer records check and pre-tow investigation performed by Officer Menchaca rendered the risk of erroneous deprivation of property quite low. This low risk of error combined with the legitimacy of the government's need for swift removal of unlicensed drivers from public roadways justified the absence of a pre-tow hearing. Compare Soffer v. City of Costa Mesa, 607 F. Supp. 975, 980-83 (C.D. Cal. 1985), aff'd in part, 798 F.2d 361, 362 (9th Cir. 1986) (government interest in administrative efficiency in removal of abandoned cars combined with low risk of erroneous deprivation justified towing before providing a hearing).

Some form of post-tow hearing within a reasonable time following the tow, however, was mandatory under the due process clause. See Scofield, 862 F.2d at 764; Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1344-45 (9th Cir. 1977). California law provided for such a hearing. Under section 22852 of the California Vehicle Code, the police department was required to send Mills a written notice of his right to a hearing on the legality of the tow, and to conduct the hearing within 48 hours of Mills' request. Cal.Veh.Code Sec. 22852 (West 1985 & Supp.1989). We have previously held that the provisions of section 22852 satisfy the demands of due process. See Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1324 (9th Cir. 1982) (tows of abandoned cars); Scofield, 862 F.2d at 764 & n. 3 (tows of unregistered and illegally parked cars). Thus, Mills cannot complain that state law prescribed inadequate procedural protections.

The record, however, indicates that the Campus Police failed to comply fully with the requirements of section 22852. Although the police sent Mills a written notice of the tow and the storage location, the notice, as it appears in the record, failed to notify Mills of his right to a hearing within 48 hours of his request. Additionally, the police failed to convene a hearing within 48 hours of the repeated demands that Mills issued during his arrest. Nevertheless, we conclude that no due process violation occurred because the police department's failure to follow section 22852 was a deviation from established state procedure and because Mills ultimately received opportunities for adequate post-deprivation procedural relief. See Parratt v. Taylor, 451 U.S. 527, 543 (1981).

By a letter dated six days from the tow of his truck, Mills received notice from the captain of the Campus Police that a hearing would be conducted upon Mills' request. Thus, the police department's procedural deficiency under section 22852 was corrected through state procedures. Compare Joshua v. Newell, No. 87-4239, slip op. at 3338-39 (9th Cir. April 3, 1989) (steps to correct omission of procedural safeguards caused by deviation from established state practices precluded due process claim). At the offered hearing, Mills could have contested the legality of the tow and could have recovered the costs of the tow if improper. See Cal.Veh.Code Sec. 22852 (West 1985). Moreover, to the extent such a hearing would not have allowed Mills to recover his total loss from any illegality in the tow, California law permitted him to file a tort action against the defendant public employees and public entities as well as the private defendants. See Cal.Gov't Code Secs. 815.2, 820 (West 1980). The availability of these remedies, which Mills rejected, furnished adequate procedural safeguards. See Joshua, slip op. at 3338-39.

For the foregoing reasons, the district court's order dismissing Mills' complaint is AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3