___________

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 Arkansas.

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. GOLDBERG, Judge, United States

Court of International Trade, sitting by designation.

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____________

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,

Arkansas, and David Meriwether, City Manager, appeal from the district

court's denial of a motion for summary judgment based on qualified

immunity. The City appeals on the merits of the denial of summary

judgment. Garrett, Meriwether and the City, among others not mentioned

here, were named as defendants in a lawsuit filed under 42 U.S.C. § 1983

by John D. Samuels and Mary Samuels. The Samuels alleged that the

destruction of their building by the City violated both the Procedural Due

Process Clause of the Fourteenth Amendment and the "reasonableness"

requirement of the Fourth Amendment. Construing all facts in favor of the

Samuels, we find that the City and its officials acted reasonably and that

no violation of federal law occurred. Accordingly, no liability attaches

to the City and City employees Garrett and Meriwether are entitled to

qualified immunity. We reverse.

I. Background

On November 2, 1993, a fire destroyed one of three apartments in a

building owned by the Samuels. Garrett, acting under the direction of City

Manager Meriwether, inspected the building and
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posted a sign declaring the structure unsafe for human occupancy. The

electricity and water company discontinued service. 

An exchange of correspondence ensued between the Samuels and the

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 and

burnt furniture on the property. Finally, three weeks later, on December

6, the City notified the Samuels by letter that the property was in

violation of City Ordinance No. 1203, which provides for condemnation and

removal of nuisance structures. A copy of the ordinance was included with

the letter. The letter notified the Samuels that a hearing was set for

January 18, 1994 to consider condemnation of their property. The letter

was sent certified mail; the signature card shows that Mary Samuels

received the letter. 

The Samuels attended this hearing, at which time the Board of

Directors of the City of Hope adopted a resolution directing the Samuels

to clean and repair the exterior of the building and to start work on the

interior within thirty days and no later than February 18. If the building

was not brought into compliance with City regulations by that date, the

City would 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 that

the Board did not grant an extension, and found that the building

constituted a nuisance under City Ordinance No. 1203. A copy of that

resolution was mailed to the Samuels indicating that if the nuisance was

not abated within 30 days, the City would destroy the structure at the

Samuels' expense. 

During the month after the hearing, Code Enforcement Officer Garrett

conducted numerous drive-by inspections and determined that the Samuels had

not complied with the Board's resolution. 
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Accordingly, City Manager Meriwether ordered Garrett to proceed with

demolition, which was performed on February 22, 1994. 

The Samuels filed suit in district court. They claim that they never

received notice of the Board's decision, that they had substantially

complied with the resolution, and that there was no communication between

the City and the Samuels until after the building had been destroyed. The

City sought 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 to qualified immunity. The

district court denied the motion. 

II. Appellate Jurisdiction

There is an exception to the final decision rule of 28 U.S.C. § 1291

where a district court denies immunity to a government 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 civil damages and are entitled to qualified immunity unless their

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 emerging

standard governing the appealability of qualified immunity cases. In

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 issues

must involve application of established legal principles. A summary

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 not

immediately appealable and must await final judgment. Id. at ___, 115 S.

Ct. at 2156. Johnson involved an appeal by three police officers from
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the denial of their summary judgment motion seeking qualified immunity from

plaintiff's claim that they beat him during arrest. The officers conceded

that they were present at the arrest, but they denied that they had beaten

the plaintiff or that they had been present when others beat him. The

officers claimed qualified immunity based on their contention that the

beating never occurred. The Supreme Court affirmed the Seventh Circuit's

holding that it lacked appellate jurisdiction because of the factual

dispute concerning the conduct of the officers. In Behrens v. Pelletier,

___ U.S. ___, 116 S. Ct. 834, 842 (1996), the Supreme Court clarified that

Johnson permits immediate review of qualified immunity cases in which all

the facts "which the District Court deemed sufficiently supported for

purposes of summary judgment met the Harlow standard of 'objective legal

reasonableness.'" 

Unlike Johnson, the present case involves application of the law and

does not turn on the sufficiency of the evidence. The actions of the City

and its employees are not in dispute. We only need to apply legal

standards to the facts as construed in favor of the non-moving party. 

In qualified immunity cases, we also have limited jurisdiction to

reach the merits. Drake v. Scott, 812 F.2d 395, 399 (8th Cir. 1987);

Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir. 1995). We may decide claims

that are "inextricably intertwined" with the district court's denial of the

summary judgment motion. Swint v. Chambers County Com'n, ___ U.S. ___, 115

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 qualified

immunity claim and the Procedural Due Process and Fourth Amendment claims

require application of the same constitutional tests. Thus, the analyses

of the underlying constitutional claims are subsumed in the qualified

immunity issue. 
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III. Procedural Due Process

In general, procedural due process requires 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 deprives

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 her

property and has been given an opportunity to appear before the proper

municipal body considering condemnation of the property, no due process

violation occurs when the municipality abates the nuisance pursuant to the

condemnation notice. Hagen v. Traill County, 708 F.2d 347, 348 (8th Cir.

1983) (per curiam) (upheld legality of destruction of building for failure

to abate nuisance after notice and hearing). 

The City destroyed the Samuels' building after a hearing at which the

Samuels presented their position to the Board, and after the Samuels were

given a 30 day period to abate the nuisances or face demolition. Without

more, no due process violation occurred. Due process does not require

additional opportunities to abate nuisances or to meet with City officials

after the notice and hearing have been provided.

Nevertheless, the Samuels dispute a number of facts, which we will

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 the

property; (3) they understood that the Board had granted an extension of

time to repair the property.

The Samuels' first two claims, even if true, would not bar a grant

of summary judgment in this case. The Samuels conceded 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 Samuels

had actual notice that the City
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intended to condemn the building, there was no procedural due process

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 building

pursuant to City board condemnation).

As to the Samuels' claim that they understood that the Board had

granted an extension of time, minutes of the meeting show that the Board

did not actually extend the deadline. The Board only discussed the

possibility that it would reconsider condemnation and an extension of time

if the Samuels began work on the structure immediately. The Board kept the

property on the condemnation list, informed the Samuels of the deadline

after which demolition would be scheduled, and sent notice accordingly. 

We conclude that the Samuels were provided adequate procedural

protection prior to destruction of the building. Meriwether and Garrett

acted in accordance with the Board's resolution issued pursuant to a

noticed hearing. Garrett's multiple inspections of the outside of the

property were sufficient to assess whether the Samuels had complied with

that part of the resolution pertaining to the outside of the building.

After Garrett and Meriwether determined that the Samuels had not complied

with the resolution, the City carried out demolition pursuant to the

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 property

violated the Fourth Amendment. In United States v. Soldal, the Supreme

Court held that a "seizure" of property occurs when "there is some

meaningful interference 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 seizure

violates the Fourth Amendment, the seizure must be examined for its overall

reasonableness. 506 U.S. at 71, 113 S. Ct. at 549 ("'reasonableness is

still the ultimate standard' under the Fourth Amendment") (citations

omitted). The analysis must be based upon a careful balancing of

governmental and private interests. Soldal, 506 U.S. at 71, 113 S. Ct. at

549.

Defendants argue that if the government provides procedural due

process of law, nothing more must be done to satisfy the reasonableness

requirement of the Fourth Amendment. Flatford v. City of Monroe, 17 F.3d

162, 170 (6th Cir. 1994) (interpreting Soldal) (eviction from apartment).

We disagree. 

We think that the Supreme Court's ruling in Soldal requires more.

To collapse the Fourth Amendment reasonableness standard into the

Fourteenth Amendment notice and hearing requirements in all cases is to

ignore Soldal. When a Fourth Amendment claim is brought, we need to

conduct an independent review of the seizure for reasonableness in addition

to any analysis regarding procedural due process. 

Many seizures carried out in accordance with procedural due process

will undoubtedly survive Fourth Amendment review. The Supreme Court

anticipated this in Soldal. 506 U.S. at 71, 113 S. Ct. at 549. For

instance, we have held that a seizure pursuant to a court order is

reasonable under the Fourth Amendment. Coleman v. Watt, 40 F.3d 255, 263

(8th Cir. 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

(demolition of a building pursuant to City board condemnation). These

holdings
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suggest that an abatement carried out in accordance with procedural due

process is reasonable in the absence of any factors that outweigh

governmental interests.

In the present case, the City acted pursuant to a noticed hearing and

a resolution effectuating municipal ordinances. The Samuels have failed

to raise any factual issues that advance a valid claim of unreasonable

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.