Unpublished Disposition, 907 F.2d 155 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1987)

No. 89-15760.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and ALBERT L. STEPHENS, Jr., Senior District Judge.** 

MEMORANDUM*** 

Appellant John O'Leary brought suit in federal district court against the State Lands Commission ("Commission") and the City of Sacramento ("City") alleging that he was deprived of personal property without due process. The court dismissed the complaint, holding that it lacked personal jurisdiction over the Commission and subject matter jurisdiction over the City. O'Leary appealed and we affirm.

Appellant O'Leary moored two boats illegally along the banks of the Sacramento River in the City of Sacramento. In response, appellees Commission and the City petitioned the state court for a preliminary injunction requiring O'Leary to move the vessels. After conducting a hearing on the matter, the court granted the injunction and ordered appellant to remove the "Yvette" and the "Islais II" by January 12, 1987. When he failed to do so, the Commission towed the vessels to locations in West Sacramento and the Port of San Francisco for temporary storage.

The Commission subsequently contacted O'Leary offering to return the boats to him if he agreed to pay the legal and mooring costs incurred. Appellant refused, at which point the Commission returned to state court requesting a modification of the injunction to permit the sale of the vessels to cover expenses. The court allowed the modification, and the boats were sold.

O'Leary then brought suit against the Commission and the City in federal district court alleging that appellees conspired to deprive him of his property without due process. Both the Commission and the City filed motions to dismiss or, in the alternative, for summary judgment. The district court granted the motions to dismiss, finding that the eleventh amendment barred the suit against the Commission and that the court lacked jurisdiction over the claim asserted against the City.

The existence of personal or subject matter jurisdiction is a question of law which we review de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir. 1989).

The eleventh amendment grants a state immunity from "federal court suits brought by its own citizens as well as by citizens of another state." Riggle v. State of California, 577 F.2d 579, 581 (9th Cir. 1978). As arms of the state, state agencies are likewise entitled to immunity unless the state has consented to being sued. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781 (1978); V.O. Motors, Inc. v. California State Bd. of Equalization, 691 F.2d 871, 872 (9th Cir. 1982). This jurisdictional bar applies whether the relief sought is legal or equitable in nature. Pennhurst, 465 U.S. at 100-01 (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933)); V.O. Motors, 691 F.2d 872; Riggle, 577 F.2d 579. The amendment has also been construed to bar suits against the state brought in admiralty. Riggle, 577 F.2d at 582 (citing Ex parte State of New York, 256 U.S. 490, 497-98 (1921).

In light of the foregoing, it is clear that personal jurisdiction over the Commission is lacking in this action. As an arm of the state, the Commission may be sued by a private citizen only if the state has waived its immunity, and there is no evidence before us indicating that it has done so. O'Leary's assertion of admiralty jurisdiction does not alter this analysis.

The district court found that it lacked subject matter jurisdiction over appellant's claim that the City conspired to deprive him of property without due process of law. Construing the complaint as a veiled attempt to obtain federal review of a state court order, Judge Schwartz held that the provision of a pre-deprivation hearing afforded O'Leary "all the process to which he was due." Further, he held that the district court was accordingly without jurisdiction to "reexamine the adequacy of that hearing simply because [appellant's] claim is couched in constitutional terms."

We believe that the district court erred in finding that it lacked jurisdiction over the claim asserted against the City. An individual, such as O'Leary, who alleges infringement of his constitutional rights may bring suit in federal court against a municipality under 42 USC section 19831  without first exhausting state judicial remedies. See, e.g., Steffel v. Thompson, 415 U.S. 452, 472-73 (1974); Bignall v. North Idaho College, 538 F.2d 243, 246 (9th Cir. 1976). Thus, the district court had jurisdiction over appellant's claim against the City.

Judge Schwartz correctly concluded, however, that O'Leary's due process rights had not been infringed. Since a significant property interest was at stake, O'Leary was entitled to a pre-deprivation hearing "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); see also Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 542 (1985); Matthews v. Harney County, Oregon, Sch. Dist. No. 4, 819 F.2d 889 (9th Cir. 1987). To this end, the state court held a hearing on appellees' motion for preliminary injunction where appellant was given the opportunity to argue his case both orally and in writing. This hearing satisfies appellees' duty to provide due process.

The City has asked that sanctions be imposed on appellant under Fed. R. Civ. P. 11. Specifically, the City contends that O'Leary filed his complaint for an "improper purpose," i.e. "to harass defendants and to extract monetary damages from the public fisc." Because no evidence is proffered to bolster this bald allegation of malfeasance, we decline to sanction appellant.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Albert L. Stephens, Jr., Senior District Judge, Central District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Appellant does not assert a cause of action under 42 U.S.C. section 1983 expressly; however, since he is proceeding in pro per and 42 USC section 1983 is the only statute which may provide a basis for recovery, we will construe his pleadings liberally and assume that he meant to assert a section 1983 claim