Unpublished Disposition, 923 F.2d 862 (9th Cir. 1988)

MEMORANDUM^** 

A.C. O'Leary appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6). We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir. 1989). We affirm in part and reverse and remand in part.

O'Leary contends that the district court erred in determining that the California Highway Patrol (CHP) and the individual CHP officers are immune from suit under the eleventh amendment. Because the CHP is a state agency, see Cal. Gov't Code Sec. 11000 (West 1985 & Supp.1990), and the State of California has not consented to suit, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), both the State and the CHP enjoy sovereign immunity and cannot be sued under section 1983, regardless of the nature of the relief sought, see Welch v. Texas Dept. of Highways and Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984); Shaw v. California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir. 1986). Moreover, the eleventh amendment bars O'Leary's claims against the CHP officers sued in their official capacities for monetary damages. Pennhurst State School, 465 U.S. at 101.

Construing O'Leary's pro se complaint liberally, however, we conclude that he sued the individual CHP officers in their personal capacities. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Soffer v. City of Costa Mesa, 798 F.2d 361, 363 (9th Cir. 1986); see also Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). O'Leary might possibly maintain an action against these officers in their personal capacities. See Scheuer v. Rhodes, 416 U.S. 232, 238 (1974); Draper v. Coombs, 792 F.2d 915, 919 (9th Cir. 1986). Therefore, we now turn to the merits of O'Leary's contentions to determine whether he has stated a claim for violation of his due process rights.

O'Leary contends that he was deprived of due process because he did not receive a hearing before his car was towed. It is settled law in this circuit, however, that due process does not require a pre-towing hearing. See Scofield v. City of Hillsborough, 862 F.2d 759, 762 (9th Cir. 1988); Soffer v. City of Costa Mesa, 798 F.2d 361, 362-63 (9th Cir. 1986).

O'Leary contends that his post-towing hearing violated due process because the hearing officer, a lieutenant with the CHP, was institutionally biased. There is, however, no constitutional requirement that the decisionmaker be an uninvolved person when a property interest protected by due process is at stake. Jordan v. City of Lake Oswego, 734 F.2d 1374, 1376 n. 1 (9th Cir. 1984) (citing Arnett v. Kennedy, 416 U.S. 134, 155-56 & n. 21 (1974)). O'Leary fails to allege any personal bias by Lt. Veale and thus, does not state a due process claim. See Jordan, 734 F.2d at 1376 n. 1.

O'Leary contends that the CHP failed to show probable cause at his post-towing hearing to justify the towing of his car. Section 22651(o) of the California Vehicle Code (West 1985 & Supp.1990) authorizes CHP officers to tow and impound vehicles found on the highway with a registration expiration date in excess of one year before the date the vehicle is found. Section 22852, as amended in 1986, only requires that "reasonable grounds for the storage" be established. See California Vehicle Code Sec. 22852(e) (West Supp.1990). Because Lt. Veale found that O'Leary's car registration had expired on January 20, 1986, more than one year before the car was found on the highway on August 20, 1988, reasonable grounds were established to justify the towing and storage of the car. Therefore, the district court did not err in dismissing this claim.

O'Leary next contends that California Vehicle Code Sec. 22651(o) is unconstitutional as a violation of his substantive due process rights.¹  To establish a claim of denial of substantive due process, O'Leary must prove that the state officials' action was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, or general welfare. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir. 1989), cert. denied, 110 S. Ct. 1317 (1990). O'Leary made only a conclusory allegation that section 22651(o) violates his due process rights. Moreover, the officials' action in this case was clearly warranted pursuant to the vehicle code and thus, O'Leary has failed to show any irrational or arbitrary interference with property rights. Therefore, the district court did not err in dismissing this claim.

O'Leary contends that he was deprived of due process because his post-towing hearing was not conducted within 48 hours of his request as required by California Vehicle Code Sec. 22852 (West 1985 & Supp.1990).

"The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1343-44 (9th Cir. 1977) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Seizure of property without prior hearing has been sustained only where the owner is afforded a prompt post-towing hearing. See Scofield v. City of Hillsborough, 862 F.2d 759, 764 (9th Cir. 1988) (citing Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1324 (9th Cir. 1982)).

In Stypmann, this court held that the California Vehicle Code, which at that time did not provide for any post-towing hearing, was not constitutionally sufficient. 557 F.2d at 1342. There was a San Francisco ordinance in existence at that time, however, that provided for a post-towing hearing within five days of a request. See id. at 1340-41. This court stated that " [a] five-day delay in justifiying detention of a private vehicle is too long" and that "a five-day delay is clearly excessive." Id. at 1344. This court held, therefore, that the procedural protection afforded by the San Francisco ordinance was not constitutionally sufficient and violated the due process clause. See id. at 1342, 1345.

Following the Stypmann decision, section 22852 of the California Vehicle Code was enacted and provided that a hearing must be held within 48 hours of the request, excluding weekends and holidays. Scofield, 862 F.2d at 764 n. 3 (citing Goichman, 682 F.2d at 1323); California Vehicle Code Sec. 22852(c). In Goichman, this court held that the provision for a post-seizure hearing within 48 hours satisfied the requirements of due process. 682 F.2d at 1325.

Here, O'Leary requested his post-towing hearing on August 22, 1988, and the hearing was conducted on August 26, 1988, more than 100 hours after his request. Based on this circuit's ruling in Stypmann, the five-day delay may in fact amount to a violation of O'Leary's procedural due process rights. Therefore, the district court erred in determining that O'Leary failed to state a due process claim for the delay in holding the post-towing hearing.

AFFIRMED in part, REVERSED and REMANDED in part.