NOT FOR PUBLICATION FILED

SEP 11 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RHAWN JOSEPH, No. 23-15358

Plaintiff-Appellant, D.C. No. 1:19-cv-01294-RMI v.

CITY OF SAN JOSE, a Municipal MEMORANDUM* corporation; et al.,

and

DAVE SYKES; et al., Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Robert M. Illman, Magistrate Judge, Presiding

Submitted September 11, 2024** San Francisco, California

Before: WALLACE, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

Rhawn Joseph appeals pro se from the district court’s summary judgment in

favor of Defendants-Appellees in his action bringing federal and state law claims

* 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). arising from the enforcement efforts of the City of San Jose (“City”) requiring

Joseph to remove structures, lower fencing, and trim strip cypress trees on his

property. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the

district court’s grant of summary judgment de novo. See Perez v. City of Fresno,

98 F.4th 919, 924 (9th Cir. 2024). We affirm.

1. Summary judgment was proper on Joseph’s first claim, impairment of free

religious exercise under the First Amendment. Joseph asserts that the City’s

assessments against his trees placed a substantial burden on the free exercise of his

“religious and spiritual beliefs,” which he describes as having “Buddhist, Taoist,

Celtic, quantum physics, evolutionary, neurological, numerological, and

cosmological foundations.” Although “[i]t is not within the judicial ken to

question the centrality of particular beliefs or practices to a faith, or the validity of

particular litigants’ interpretations of those creeds,” a court may properly consider

“whether the alleged burden imposed by the [challenged state action] is a

substantial one.” Hernandez v. CIR, 490 U.S. 680, 699 (1989). We hold that the

City’s actions did not create a substantial burden. Joseph voluntarily complied

with the generally applicable municipal code requirements to trim the trees’

overgrown vines, and he stated during his deposition that such trimming did not

impair the trees’ spiritual or religious value. See Stormans, Inc. v. Selecky, 586

F.3d 1109, 1127 (9th Cir. 2009), quoting Emp’t Div., Dep’t of Human Res. of Or.

2 v. Smith, 494 U.S. 872, 879 (1990), superseded by statute in other contexts as

stated in Holt v. Hobbs, 574 U.S. 352, 356–57 (2015) (“The right to freely exercise

one’s religion, however, ‘does not relieve an individual of the obligation to comply

with a valid and neutral law of general applicability on the ground that the law

proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”).1

2. Summary judgment was proper on Joseph’s third claim, violation of the

Fourth Amendment.2 Joseph testified that he had not seen any City defendant enter

his property and that nothing was taken from his property. The San Jose Municipal

Code Inspectors testified, under oath, that they did not enter Joseph’s property.

Thus, there is no genuine dispute of material fact that no search occurred, and,

accordingly, the Fourth Amendment is not implicated here. See United States v.

Jones, 565 U.S. 400, 404–05 (2012) (stating that the government “physically

1 To the extent that Joseph’s claim is a violation of the First Amendment’s Free Speech Clause, summary judgment was proper because Joseph had neither alleged nor offered facts demonstrating that the trees conveyed a message “that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative.” Clark v. Cmty. for Creative Non- Violence, 468 U.S. 288, 294 (1984) (emphasis added). 2 To the extent that Joseph argues that the City engaged in conspiracy and bribery, the conduct is prohibited by federal and state law, not the Fourth Amendment. See U.S. Const., amend. IV (emphasis added) (providing the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”); United States v. Attson, 900 F.2d 1427, 1429 (9th Cir. 1990) (“The phrase ‘searches and seizures’ connotes that the type of conduct regulated by the fourth amendment must be somehow designed to elicit a benefit for the government in an investigatory or, more broadly, an administrative capacity.”).

3 occupie[s] private property for the purpose of obtaining information,” that is a

“‘search’ within the meaning of the Fourth Amendment.”); United States v.

Barajas-Avalos, 377 F.3d 1040, 1056 (9th Cir. 2004), citing United States v. Dunn,

480 U.S. 294, 298, 304 (1987) (stating that an “observation” of private property

“does not constitute a search when the observation is made from an open field or

public place.”).

3. Summary judgment was proper on Joseph’s fourth claim, violation of the

Fifth Amendment.3

The administrative hearing afforded Joseph due process. California’s

Administrative Procedures Act (APA), Cal. Gov’t Code § 11400.20 et seq., applies

only to certain California state departments and agencies and expressly does not

apply to “local agenc[ies],” which are defined in relevant part as a “city.” Cal.

Gov’t Code §11410.30; Miller v. County of Santa Cruz, 39 F.3d 1030, 1036 (9th

Cir. 1994), citing Knickerbocker v. City of Stockton, 244 Cal. Rptr. 764 (1988);

(recognizing “cases involving public agencies not encompassed by the California

APA, such as cities”). Moreover, “[t]he fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”

3 After conducting our own review of the review, we confirm that: (1) contrary to Joseph’s argument that the “charges” against him “were dismissed” at the administrative hearing, the hearing officer sustained the Order except for the portion concerning the violation that Joseph had voluntarily corrected; and (2) the Appeals Hearing Board did not dismiss the code violations but rather dismissed Joseph’s appeal because all violations had been corrected.

4 Mathews v. Eldridge, 424 U.S. 319, 333 (1976), quoting Armstrong v. Manzo, 380

U.S. 545, 552 (1965). The San Jose Municipal Code mandated, and the City

provided, notice of the violations and the opportunity to be heard on those

violations at a hearing where evidence may be presented to challenge those

violations. SJMC §§ 1.14.045.B, D. Joseph received the notice and availed

himself of the opportunity to attend a hearing and present evidence. Even though

the Code does not provide the right to conduct discovery, present testimony under

oath, subpoena witnesses, or conduct cross-examination, the rights it does

provide—notice and the opportunity to be heard—are more than adequate due

process protections.4 See Mathews, 424 U.S. at 333.

The Appeals Hearing Board afforded Joseph due process. The two-year

deadline Joseph claims the Board violated actually governs the California state’s

Occupational Safety and Health Appeals Board, an entirely separate entity from

the City of San Jose’s Appeals Hearing Board. Compare Cal. Lab. Code § 376

with SJMC § 2.08.620. The City of San Jose Municipal Code contains no such

time restriction. Additionally, the Board did not “refuse[] to allow him to testify or

present or rebut evidence or question his accusers”—by the time of the scheduled

hearing, there was no need for further proceedings because Joseph had corrected

all of the violations and had not been assessed any fines.

4 Additionally, “[a]dministrative proceedings are not, however, bound by strict rules of evidence.” Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983).

5 To the extent that this claim alleged malicious prosecution, summary

judgment was appropriate because the City employees are immune from such a

suit and the City is correspondingly not liable. See Awabdy v. City of Adelanto,

368 F.3d 1062, 1066 (9th Cir. 2004) (stating that federal courts adjudicating

actions brought under 42 U.S.C. § 1983 rely on state common law for elements of

malicious prosecution); AE v. County of Tulare, 666 F.3d 631, 638 (9th Cir.

2012), citing Cal. Gov’t Code § 815; Guzman v. County of Monterey, 46 Cal. 4th

887, 897, 9 (2009) (“California public entities are not subject to common law tort

liability; all liability must be pursuant to statute.”); Cal. Gov. Code § 821.6 (“A

public employee is not liable for injury caused by his instituting or prosecuting any

judicial or administrative proceeding within the scope of his employment, even if

he acts maliciously and without probable cause.”); Cal. Gov. Code § 815.2(b)

(“[A] public entity is not liable for an injury resulting from an act or omission of an

employee of the public entity where the employee is immune from liability.”).

4. Summary judgment was proper on Joseph’s fifth claim, violation of the

Sixth Amendment’s Confrontation Clause. The Confrontation Clause’s “right

. . . to be confronted with the witnesses against him,” U.S. Const. amend. VI, did

not apply to the administrative hearing because “[t]he Sixth Amendment to the

Constitution applies only to criminal proceedings.” Olshausen v. CIR, 273 F.2d

23, 27 (9th Cir. 1959). Similarly, any analogous right under California’s APA did

6 not apply here because the statute does not apply to municipalities like the City.

See Cal. Gov’t Code §11410.30; Miller, 39 F.3d at 1036.

5. Summary judgment was proper on Joseph’s sixth claim, violation of the

Eighth Amendment. Our record confirms that no fines were actually imposed;

Joseph was merely warned of the possible penalties for noncompliance with the

San Jose Municipal Code. See In re Grand Jury Proceedings, 33 F.3d 1060, 1062

(9th Cir. 1994) (“The time to raise the issue of an Eighth Amendment violation of

his right to be free from excessive fines is after the imposition of such a fine.”),

citing Ingraham v. Wright, 430 U.S. 651, 671–72 n.40 (1977).

6. Summary judgment was proper on Joseph’s seventh claim, violation of

the Fourteenth Amendment’s Equal Protection Clause. Joseph does not point to

any evidence in the record from which we may draw a reasonable inference that

the City cited him for his neighbor’s code violations when the inspector did not

specifically measure the height of his fence.5 See Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1065 n.10 (9th Cir. 2002) (“At summary judgment, this court

need not draw all possible inferences in [Joseph’s] favor, but only all reasonable

ones.”). Similarly, Joseph does not present any evidence showing that he was cited

5 Instead, a much more plausible inference is that the Code inspector measured the neighbor’s fence, which complied with the applicable restrictions, then observed Joseph’s fence and interlocked cypress, approximately two and ten times the allowable height, respectively, and concluded that Joseph’s fence was in violation based on clear visual evidence.

7 for the Code violations due to his religious beliefs. See FTC v. Stefanchik, 559

F.3d 924, 929 (9th Cir. 2009) (“A non-movant’s bald assertions or a mere scintilla

of evidence are both insufficient to withstand summary judgment.”).

7. Summary judgment was proper on Joseph’s eighth claim, liability under

Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978)

because there was no violation of Joseph’s constitutional rights. See Hart v. Parks,

450 F.3d 1059, 1071 (9th Cir. 2006), citing City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986).

8. Summary judgment was proper on Joseph’s ninth claim, violation of the

California Bane and Ralph Civil Rights Acts, because he admitted under oath that

Defendants-Appellees did not threaten, intimidate, or coerce him, with violence or

otherwise. See Sandoval v. County of Sonoma, 912 F.3d 509, 519 (9th Cir. 2018),

citing Cal. Civ. Code § 52.1; Corales v. Bennett, 567 F.3d 554, 570–71 (9th Cir.

2009), citing Cal. Civ. Code § 51.7; see also California v. Trump, 963 F.3d 926,

935–36 (9th Cir. 2020), quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412

(2013) (“At summary judgment, a plaintiff cannot rest on mere allegations, but

‘must set forth by affidavit or other evidence specific facts.’”).

9. Summary judgment was proper on Joseph’s tenth claim, “Negligence (42

U.S.C. § 1983) Willful Indifference,” because section 1983 does not create a cause

of action for state-tort liability. See Johnson v. Barker, 799 F.2d 1396, 1399 (9th

8 Cir. 1986), quoting Baker v. McCollan, 443 U.S. 137, 146 (1979) (“It is well

settled that section 1983 ‘imposes liability for violations of rights protected by the

Constitution, not for violations of duties of care arising out of tort law.’”). To the

extent that Joseph relies on California law, the claim is barred because Joseph did

not plead or comply with the California Government Claims Act. Cal. Gov’t

Code § 905 (mandating that “all claims for money or damages against local public

entities” “shall be presented in accordance with” the requirements described

therein); California v. Superior Ct. (Bodde), 32 Cal. 4th 1234, 1243 (2004)

(holding that a “plaintiff must allege facts demonstrating or excusing compliance

with the claim presentation requirement. Otherwise, his complaint is subject to a

general demurrer for failure to state facts sufficient to constitute a cause of

action.”).

10. Joseph’s eleventh claim, intentional infliction of emotional distress, is

barred because Joseph did not properly present it. See Cal. Gov’t Code §905;

Bodde, 32 Cal. 4th at 1243 (2004).

We hold that Joseph forfeited any argument of error with respect to the

dismissal of his second claim, “Conspiracy, Hate Crimes” under federal and

California law, and his twelfth claim, for declaratory and injunctive relief, because

he made no argument to that effect in his opening brief. See Crowley v. Epicept

Corp., 883 F.3d 739, 748 (9th Cir. 2018) (A ‘party forfeits a right when it fails to

9 make a timely assertion of that right and waives a right when it is intentionally

relinquished or abandoned.’”), quoting United States v. Kaplan, 836 F.3d 1199,

1216 (9th Cir. 2016).

To the extent that Joseph’s opening brief argues that the magistrate judge

abused his discretion in denying his motion to recuse and disqualify, see Hebbe,

627 F.3d at 342, we hold that there was no abuse of discretion. See Pesnell v.

Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (providing standard of review).

Joseph does not point to evidence in the record demonstrating any materially false

statement by the magistrate judge nor other evidence showing that “a reasonable

person with knowledge of all the facts would conclude that the judge’s impartiality

might reasonably be questioned.” See Yagman v. Rep. Ins., 987 F.2d 622, 626 (9th

Cir. 1993) (internal quotation marks and citation omitted). See United States v.

McChesney, 871 F.3d 801, 807 (9th Cir. 2017), quoting Liteky v. United States,

510 U.S. 540, 555–56 (1994) (“[J]udicial rulings alone almost never constitute a

valid basis for a bias or partiality motion.”).

Finally, we write to underscore that Joseph’s pleadings, containing “personal

attacks on the distinguished” district and magistrate judges, as well as members of

this court, “were out of all bounds of civic and persuasive discourse.” Washington

v. Trump, 858 F.3d 1168, 1185 (9th Cir. 2017) (Bybee, J., dissenting from denial

of rehr’g en banc). “It does no credit to the arguments of the parties to impugn the

10 motives or the competence of the members of this court; ad hominem attacks are

not a substitute for effective advocacy.” Id.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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