NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KERRY CLARK, 

Plaintiff-Appellee, 

 v. 

RHETT DAVIS, Police Chief in his Official 

Capacity, 

Defendant-Appellant.

No. 18-35776 

D.C. No. 

6:17-cv-00033-JR 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael McShane, District Judge, Presiding

Argued and Submitted June 6, 2019 

Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,** District 

Judge.

Rhett Davis, police chief for the city of Powers, appeals the district court’s 

denial of summary judgment on the basis of qualified immunity in Kerry Clark’s 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Fernando J. Gaitan, Jr., United States District Judge 

for the Western District of Missouri, sitting by designation.

FILED

JUL 8 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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action against Davis under 42 U.S.C. § 1983. Clark contends that on July 11, 

2016, Davis violated his Fourth Amendment rights by conducting a warrantless 

search, as well as his Fourth and Fourteenth Amendment rights by ordering Clark 

to leave his leased home without notice or process. Ultimately, Clark’s home and 

its contents were destroyed in September 2016 by his landlord and other private 

individuals. We have jurisdiction under 28 U.S.C. § 1291. Moran v. Washington, 

147 F.3d 839, 843 (9th Cir. 1998). We affirm in part, reverse in part, and remand.

1. Denial of qualified immunity on summary judgment is reviewed de 

novo by this Court. Curnow v. Ridgecrest Police, 952 F.2d 321, 323 (9th Cir. 

1991). “[Q]ualified immunity shields public officials from liability insofar as their 

conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.” Biggs v. Best, Best & Krieger, 

189 F.3d 989, 993 (9th Cir. 1999) (internal quotation marks omitted). Qualified 

immunity may be denied on summary judgment “only if (1) the facts alleged, taken 

in the light most favorable to the party asserting injury, show that the officer’s 

conduct violated a constitutional right, and (2) the right at issue was clearly 

established at the time of the incident such that a reasonable officer would have 

understood her conduct to be unlawful in that situation.” Torres v. City of Madera, 

648 F.3d 1119, 1123 (9th Cir. 2011).
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2. With respect to Clark’s Fourth Amendment search claim, Davis is not 

entitled to qualified immunity because it is clearly established that an officer 

cannot enter a home without a warrant or other justification such as emergency or 

exigency, even if the landlord called the officer over a rent dispute. King v. 

Massarweh, 782 F.2d 825, 828 (9th Cir. 1986); see also Hopkins v. Bonvicino, 573 

F.3d 752, 763 (9th Cir. 2009); United States v. Martinez, 406 F.3d 1160, 1163-64 

(9th Cir. 2005). To the extent that Davis argues that a warrantless entry claim was 

not before the district court, that argument is belied by the allegations in the 

operative complaint. 

3. As to Clark’s Fourth Amendment seizure claim related to the July 

2016 order to leave the leased home, Davis is not entitled to qualified immunity 

because a reasonable officer would have known that such an order, made without 

notice or process, would constitute a “meaningful interference” in Clark’s 

possessory interests. Soldal v. Cook Cty., Ill., 506 U.S. 56, 61 (1992).

4. In addition, Davis is not entitled to qualified immunity on Clark’s 

Fourteenth Amendment claim related to the July 2016 order to leave the leased 

home, as a reasonable officer would have known that such an order, made without 

process or authority, would violate Clark’s due process rights. Greene v. Lindsey, 

456 U.S. 444, 456 (1982); see also Fuentes v. Shevin, 407 U.S. 67, 87 (1972).
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5. However, to the extent that Clark claims Davis is responsible for the 

September 2016 destruction of his leased home and some personal property left 

inside, Davis is entitled to qualified immunity. The facts viewed in the light most 

favorable to Clark do not demonstrate that the destruction was caused by state 

action. Instead, the home was destroyed months after Davis’s July 2016 actions, 

and Davis did not have direct involvement in its destruction. Under these facts, 

even assuming that the destruction of the home was unlawful, Clark has not 

demonstrated that the harm is attributable to the state. See Meyers v. Redwood 

City, 400 F.3d 765, 771 (9th Cir. 2005).

AFFIRMED in part, REVERSED in part, and REMANDED.