___________ No. 95-3647

___________ John D. Samuels; Mary Samuels,* *

Appellees, * * v. * * David Meriwether, Individually* and as City Manager of the * City of Hope, Arkansas, * * Appeal from the United States Appellant, * District Court for the * Western District of Arka nsas. Dennis Ramsey, Individually * and as Mayor of the City of * Hope, Arkansas; David Johnson,* Individually and Vice Mayor of* the City of Hope, Arkansas; * J. C. Winemiller, Individually* and as a Member of the Board * of Directors of the City of * Hope, Arkansas; Don Still, * Individually and as a Member * of the Board of Directors of * the City of Hope, Arkansas; * Bucky Sharp, Individually and * as a Member of the Board of * Directors of the City of Hope,* Arkansas; Willie Walker, * Individually and as a Member * of the Board of Directors of * the City of Hope, Arkansas; * Doodle Franklin, Individually * and as a Member of the Board * of Directors of the City of * Hope, Arkansas, * *

Defendants, * * Dale Garrett, Individually and* as an employee of the City of * Hope, Arkansas; City of Hope, * Arkansas, * * Appellants. *

### *THE HONORABLE RICHARD W. GOLD BERG, Judge, United States

Court of International Trade, sitting by designation. -2- ____________ Submitted: April 12, 1996 Filed: August 30, 1996

____________ Before MAGILL and LOKEN, Circuit Judges, and GOLDBERG, Judge. *

____________ GOLDBERG, Judge.

Dale Garrett, Code Enforcement Officer for the City of Hope , Arkans as, and David Meriwether, City Manager, appeal from the distric t court's denial of a motion for summary judgment based on qualifie d immunity. The City appeals on the merits of the denial of summar y jud gment. Garrett, Meriwether and the City, among others not mentione d here, were named as defendants in a lawsuit filed under 42 U.S.C. § 1983 byJohn D. Samuels and Mary Samuels. The Samuels alleged that th e destruction of their building by the City violat ed both the Procedural Due Proce ss Clause of the Fourteenth Amendment and the "reasonableness " requirement of the Fourth Amendment. Construingall facts in favor of the Samuels, we find that the City and its officials acted reasonably and that no violation of feder al law occurred. Accordingly, no liability attaches to the Cit y and City employees Garrett and Meriwether are entitled t o qualified immunity. We reverse.

I. Background

On Nov ember 2, 1993, a fire destroyed one of three apartments in a building owned by the Samuels. Garrett, acting under the direction of Cit y Manager Meriwether, inspected the building and

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poste d a sign declaring the structure unsafe for human occupancy. Th e electricity and water company discontinued service.

Anexchange of correspondence ensued between the Samuels and th e City. On November 12 , the City sent a letter outlining twenty conditions found to be in violation of City ordinances. Three days later, the City sent another letter listing additional violations including rubbish an d burnt furniture on th e property. Finally, three weeks later, on December 6, the Ci ty notified the Samuels by letter that the property was i n violation of City Ord inance No. 1203, which provides for condemnation and removal of nuisance structures. A copy of the o rdinance was included with the let ter. The letter notified the Samuels that a hearing was set fo r January18, 1994 to consider condemnation of their property. The letter
was sent certified mail; the signature card shows that Mary Samuel s received the letter.

The Samuels attended this hearing, at which time the Board o f Directors of the City of Hope adopted a resolution directing the Samuels to clean and repair t he exterior of the building and to start work on the interior within thirty days and no later than February 18. If the buildin g
was not brought into compliance with City regulations by that date, th e Citywould destroy the structure at the property owner's expense. There
was a discussion regarding an extension of the February 18th deadline if steps were taken to repair the buildings. However, the minutes proved tha t the Boar d did not grant an extension, and found that the buildin g
con stituted a nuisance under City Ordinance No. 1203. A copy of tha t resolutionwas mailed to the Samuels indicating that if the nuisance was not abated within 30 days, the City would destroy the structure at th e Samuels' expense.
During the month after the hearing, Code Enforcement Officer Garrett conducted numerous drive-by inspections and determined that the Samuels ha d not complied with the Board's resolution.

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Ac cordingly, City Manager Meriwether ordered Garrett to proceed wit h demolition, which was performed on February 22, 1994.
The Samuels filed suit in district court. They claim that they never receiv ed notice of the Board's decision, that they had substantiall y complied with the res olution, and that there was no communication between the City and the Samuels until after the buildin g had been destroyed. The Citysought summary judgment, claiming that the City did not violate the Samuels' Fourth Amendment or procedural due process rights and that City employees Meriwether and Garrett were entitled t o qualified immunity. The district court denied the motion.

II. Appellate Jurisdiction
There is an exception to the final d ecision rule of 28 U.S.C. § 1291 where a district court denies immunity to a gove rnment official. Mitchell
v. Forsyth , 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985). Government officials performing discretionary functions are shielded from liability for civ il damages and are entitled to qualified immunity unless thei r conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982).

We have jurisdiction over the present case under the emergin g standa rd governing the appealability of qualified immunity cases. I n Johnson v. Jones , 515 U.S. ___, 115 S. Ct. 2151, 2158 (1995), the Supreme Court held that to be appealable, the denial of summary judgment issue s must i nvolve application of established legal principles. A summar y judgment motion denied on the basis of disputes of "evidence sufficiency," concerning facts that may or may not be able to be proven at trial, are no t immediately appealabl e and must await final judgment. Id. at ___, 115 S. Ct. at 2156. Johnsoninvolved an appeal by three police officers from

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the denial of their summary judgment motion seeking qualified immunity fro m plaintiff's claim that they beat him during arre st. The officers conceded that they were present at the arrest, but they d enied that they had beaten the plai ntiff or that they had been present when others beat him. Th e office rs claimed qualified immunity based on their contention that th e beating never occurre d. The Supreme Court affirmed the Seventh Circuit's holdin g that it lacked appellate jurisdiction because of the factua l dispute concerning th e conduct of the officers. In Behrens v. Pelletier , ___ U.S. ___, 116 S. Ct. 834, 842 (1996), the Supreme Court clarified that Johnsonpermits immed iate review of qualified immunity cases in which all the fa cts "which the District Court deemed sufficiently supported fo r purposes of summary judgment met the Harlowstandard of 'objective legal reasonableness.'"

Unlike Johnson , the present case inv olves application of the law and does not turn on the sufficiency of the evidence . The actions of the City and its empl oyees are not in dispute. We only need to apply lega l standards to the facts as construed in favor of the non-moving party.

Inqualified immunity cases, we also have limited jurisdiction t o reach the merits. Drake v. Scott , 812 F.2d 395, 399 (8th Cir. 1987) ; Dawkins v. Graham , 50 F.3d 532, 534 (8th Cir. 19 95). We may decide claims that are "inextricably intertwined" with the district court's denial of th e summary judgment motion. Swint v. Chambers County Com'n , ___ U.S. ___, 11 5 S. Ct. 1203, 1211-2 (1995); Kincade v. City of Blue Springs, Mo. , 64 F.3d 389 , 394-95 (8th Cir. 1995). In the present case, both the qualifie d immunity claim and th e Procedural Due Process and Fourth Amendment claims require application o f the same constitutional tests. Thus, the analyses of the underlying constitutional claims are subsumed in the qualifie d immunity issue.

### -6- III. Procedural Due Process
In general, procedural due process r equires that a hearing before an impartial decision maker be provided at a meaningful time, and in a meaningful manner, prior to a governmental decision which deprive s individuals of a liberty or property interest. Mathews v. Eldridge , 424 U.S. 319, 332-3, 96 S. Ct. 893, 901-2 (1976). We have held that where a property owner is given written notice to abate a hazard on his or he r prope rtyand has been given an opportunity to appear before the prope r munici pal body considering condemnation of the property, no due proces s violation occurs when the municipality abates th e nuisance pursuant to the condemnation notice. Hagen v. Traill County , 708 F.2d 347, 348 (8th Cir. 1983) (per curiam) (upheld legality of destructi on of building for failure to abate nuisance after notice and hearing). The City destroyed the Samuels' building after a hearing at whi ch the Samuels presented the ir position to the Board, and after the Samuels were given a 30 day periodto abate the nuisances or face demolition. Without more, no due process violation occurred. Due process does not requir e additional opportunities to abate nuisances or t o meet with City officials after the notice and hearing have been provided.

Neverthe less, the Samuels dispute a number of facts, which we wil l consider in turn: (1 ) they did not receive notice of the City's decision to condemn; (2) they did not see a condemnation sign posted on th e property; (3) they understood that the Board had granted an extension of time to repair the property.

The Sa muels' first two claims, even if true, would not bar a gran t of summary judgment in this case. The Samuels c onceded that they received the City 's notice of December 6 and that they had notice of the City' s intentions from the board meeting which they attended. Because the Samuel s had actual notice that the City

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intende d to condemn the building, there was no procedural due proces s violation. Mennonite Board of Missions v. Adams , 462 U.S. 791, 800, 103 S. Ct. 2706, 2712 (1983) (notice to mortgagee of tax foreclosure); Hroch
v. City of Omaha , 4 F.3d 693, 696 (8th Cir. 1993) (demolition of a buildin g pursuant to City board condemnation).

As to the Samuels' claim that they understood that the Board ha d granted an extension of time, minutes of the meeting show that the Board did not a ctually extend the deadline. The Board only discussed th e possibility that it would reconsider condemnatio n and an extension of time if the Samuels began work on the structure immediately. The Board kept th e pro pertyon the condemnation list, informed the Samuels of the deadlin e after which demolition would be scheduled, and sent notice accordingly.

We con clude that the Samuels were provided adequate procedura l protectionprior to destruction of the building. Meriwether and Garrett acte d in accordance with the Board's resolution issued pursuant to a noticed hearing. Garrett's multiple inspections of the outside of th e propertywere sufficient to assess whether the Samuels had complied with that part of the resolution pertaining to the outside of the building

. After Garrett and Mer iwether determined that the Samuels had not complied with the resolution, the City carried out demolition pursuant to th e Board's resolution. The Samuels were not entitled to any further notice under the law. No violation of procedural due process occurred.

IV. Fourth Amendment

The Samuels contend that the City's seizure of their propert y violated the Fourth Amendment. In United States v. Soldal , the Suprem e Cou rt held that a "seizure" of property occurs when "there is som e meaningful interferen ce with an individual's possessory interests in that property." 506 U.S. 56, 61, 113 S. Ct. 538, 543

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(1992) (quoting United States v. Jacobsen , 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984)).
According to Soldal , in determining whether a government seizur e violates the Fourth Amendment, the seizure must be examined for its overal l reasonabl eness. 506 U.S. at 71, 113 S. Ct. at 549 ("'reasonableness i s st ill the ultimate standard' under the Fourth Amendment") (citation s omitted)

. The analysis must be based upon a careful balancing o f governmental and private interests. Soldal , 506 U.S. at 71, 113 S. Ct. at 549.

Def endants argue that if the government provides procedural du e process of law, nothing more must be done to satisfy the reasonablenes s requirement of the Fo urth Amendment. Flatford v. City of Monroe , 17 F.3d 162, 170 (6th Cir. 19 94) (interpreting Soldal ) (eviction from apartment). We disagree.

We th ink that the Supreme Court's ruling in Soldal requires more

. To collapse the Fourth Amendment reasonableness standard into th e Fou rteenthAmendment notice and hearing requirements in all cases is t o ignore Soldal . When a Fourth Amendment claim is brought, we need t o conduct an independent review of the seizure for reasonableness in additio n to any analysis regarding procedural due process.
Many seiz ures carried out in accordance with procedural due process will u ndoubtedly survive Fourth Amendment review. The Supreme Cour t anticipat ed this in Soldal . 506 U.S. at 71, 113 S. Ct. at 549. Fo r instance, we have held that a seizure pursuant to a court order i s reasonable under the Fourth Amendment. Coleman v. Watt , 40 F.3d 255, 263 (8thCir. 1994) (impoundment of motor vehicle). Similarly, we have held that seizure pursuant to a City board condemnation hearing is reasonable under the balancing test mandated in Soldal

. Hroch , 4 F.3d at 696- 7 (demolitionof a building pursuant to City board condemnation). Thes e holdings

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sug gest that an abatement carried out in accordance with procedural du e proce ss is reasonable in the absence of any factors that outweig h governmental interests.
In the present case, the City acted pursuant to a noticed heari ng and
a resolution effectuating municipal ordinances. The Samuels have failed to ra ise any factual issues that advance a valid claim of unreasonabl e behavior on the part of the City or its agents. Accordingly, we hold that no violation of the Fourth Amendment occurred.

V. Conclusion

We find that no violation of the Procedural Due Process Clause of the Fourteenth Amendment or of the Fourth Amendment occurred. We reverse the district court's denial of summary judgment accordingly.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.