NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN BORCHARDT,

Plaintiff

- Appellant,

v.

CITY OF TUCSON, a municipal corporation of the State of Arizona; D. COX, in official capacity,

Defendants

- Appellees. No. 16

- 16970

D.C. No. 4:14

- cv

- 02039

- JGZ

MEMORANDUM *

Appeal from the United States District Court

for the District of Arizona Jennifer G. Zipps, District Judge, Presiding

Submitted December 7, 2017 **
San Francisco, California

Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE, *** District Judge.

Plaintiff

- Appellant Brian Borchardt appeals the district court’s grant of

* 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).

*** The Honorable Steven J. McAuliffe, United States District Judge for the District of New Hampshire, sitting by designation. 

# FILED

DEC 13 2017

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

summary judgment with regard to Borchardt’s second cause of action, and its

dismissal of B orchardt’s first cause of action as unripe. We have juris diction

pursuant to 28 U.S.C. § 1291, and we affirm.

As the facts and procedural history are familiar to the parties, we do not

recite them here.

1. A just

- com

pensation claim brought under § 1983 is not ripe where a plaintiff

has not sought compensation through available state procedures. Williamson Cty.

Reg ’ l Planning Comm ’ n v. Hamilton Bank of Johnson City , 473 U.S. 172 , 194

(1985)

. Borchardt has not shown that he made any attempt to seek compensation

in Arizona prior to initiating his federal suit, or that he did not do so because

Arizona’s procedures were unavailable or inadequate. See Del Monte Dunes at

Monterey, Ltd. v. City of Monterey

, 920 F.2d 1496, 1506

- 07 (9th Cir. 1990)

.

Therefore, Borchardt’s § 1983 claim was unripe, and the district court lacked

jurisdiction to consider it. See S. Pac. Transp. Co. v. City of L.A. , 922 F.2d 498,

502 (9th Cir. 1990)

.

2. Borchardt’s Fifth Amendment due process claim fails as a matter of law

because Borchardt has not alleged any misconduct on the part of the federal

government. See Lee v. City of L.A. , 250 F.3d 668, 687 (9th Cir. 2001)

.

3. Borchardt’s Fourteenth Amendment due process claim also fails as a matter

of law because the notice provided by the City of Tucson (the “City”) was3

sufficient. The Fourteenth Amendment requires that notice be “reasonably

calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.”

Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 314 (1950). The City’s

attempts to serve Borchardt at a variety of different addresses, through a variety of

means, and over the course of several years, more than met this standard.

For the foregoing reasons, the district court’s grant of summary judgment

with regard to Borchardt’s second cause of action and dismissal of Borchardt’s

first cause of action as unripe are AFFIRMED.

AFFIRMED.