NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 11 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD MATHIS, AKA Joe R. Mathis, No. 16-16723 Special Administrator of the Estate of Joe 17-16060 Robinson Mathis and as Trustee of the Joe Robinson Mathis and Eleanor Margherite D.C. No. Mathis Trust; et al., 2:07-cv-00628-APG-GWF

Plaintiffs-Appellees,

MEMORANDUM*

v.

COUNTY OF LYON, a Political Subdivision of the State of Nevada,

Defendant,

and

RICHARD GLOVER, individually,

Defendant-Appellant.

RICHARD MATHIS, AKA Joe R. Mathis, No. 16-16751 Special Administrator of the Estate of Joe 17-16061 Robinson Mathis and as Trustee of the Joe Robinson Mathis and Eleanor Margherite D.C. No. Mathis Trust; et al., 2:07-cv-00628-APG-GWF

Plaintiffs-Appellees,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.

COUNTY OF LYON, a Political Subdivision of the State of Nevada,

Defendant-Appellant,

and

RICHARD GLOVER, individually,

Defendant.

RICHARD MATHIS, AKA Joe R. Mathis, No. 16-16938 Special Administrator of the Estate of Joe 17-16194 Robinson Mathis and as Trustee of the Joe Robinson Mathis and Eleanor Margherite D.C. No. Mathis Trust; et al., 2:07-cv-00628-APG-GWF

Plaintiffs-Appellants,

v.

COUNTY OF LYON, a Political Subdivision of the State of Nevada and RICHARD GLOVER, individually,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Argued and Submitted October 17, 2018 San Francisco, California

2 Before: HAWKINS and HURWITZ, Circuit Judges, and EATON,** Judge.

Relying on his statutory authority to “secure” a decedent’s estate, see Nev.

Rev. Stat. § 253.0405, Richard Glover, the public administrator of Lyon County,

Nevada, entered the residence of Joe Mathis without a warrant or notice to Mathis’

heirs, removing weapons and other valuables. Some of the seized property was not

returned to the heirs. In this suit against Glover and the County, Mathis’ sons and

the trustee of a family trust assert violations of the Fourth and Fourteenth

Amendments and state common law claims.

The district court held that Glover and the County were liable to the plaintiffs

on the Fourteenth Amendment claims and that the County was liable on the Fourth

Amendment Claims. Judgment was entered in favor of Glover on the Fourth

Amendment claims because of qualified immunity. A jury then awarded the

plaintiffs compensatory damages against both defendants and punitive damages

against Glover.

The parties cross-appealed. We have jurisdiction under 28 U.S.C. § 1291 and

reverse the district court judgment as to the Fourth Amendment search claims, but

affirm as to the Fourth Amendment seizure, Fourteenth Amendment, and state law

claims.

** Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation.

3

I. The Fourth Amendment Claims.

A. The district court erred by entering judgment against the County on the

Fourth Amendment search claims, because no plaintiff had a reasonable expectation

of privacy in the Mathis home at the time of the search. See Smith v. Maryland, 442

U.S. 735, 740 (1979).

1. The Mathis brothers did not own, pay rent for, or live at the residence. The

fact that they stored personal property at the house and had access did not confer an

objectively legitimate expectation of privacy. United States v. $40,955.00 in U.S.

Currency, 554 F.3d 752, 757–58 (9th Cir. 2009). Nor did any agricultural interest

of James Mathis in the surrounding fields. See Oliver v. United States, 466 U.S.

170, 179–80 (1984).

2. The district court incorrectly held that the Mathis Trust, the owner of the

residence, had a reasonable expectation of privacy. Owning residential property

does not confer the same Fourth Amendment rights as living in it. See United States

v. Warner, 843 F.2d 401, 403 (9th Cir. 1988); see also Carpenter v. United States,

138 S. Ct. 2206, 2213 (2018) (“[T]he Fourth Amendment protects people, not

places.” (quoting Smith, 442 U.S. at 740)).1

1 Even assuming that the trustee could assert the Fourth Amendment rights of beneficiaries, as we noted above, the beneficiaries in this case (the Mathis brothers), had no reasonable expectations of privacy in the residence at the time of the search.

4 B. However, a party “need not show a reasonable expectation of privacy to

enjoy the protection of the Fourth Amendment against seizures of . . . property.”

Lavan v. City of Los Angeles, 693 F.3d 1022, 1027–28 (9th Cir. 2012). A warrantless

seizure is per se unreasonable, “subject only to a few specifically established and

well delineated exceptions.” United States v. Hawkins, 249 F.3d 867, 872 (9th Cir.

2001) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). The district

court correctly rejected the County’s argument that the community caretaking

exception justified the seizure; that doctrine applies only to the impounding and

inventory searches of motor vehicles. See United States v. Erickson, 991 F.2d 529,

532 (9th Cir. 1993).

C. The district court correctly held that the County was liable for the Fourth

Amendment seizure violation because Glover was a final policymaker. See Lytle v.

Carl, 382 F.3d 978, 982 (9th Cir. 2004). Although Nevada law does not explicitly

vest the public administrator with policymaking authority, it expressly prohibits

deputy public administrators from having any such authority, Nev. Rev. Stat.

§ 253.025, implying that the public administrator is a final policymaker. Moreover,

state law does not provide for direct oversight of the public administrator by any

county official. See Lytle, 382 F.3d at 982–83. Because the public administrator is

elected by county voters and not supervised by the state, the administrator is an

officer of the county, not the state. See Nev. Rev. Stat. § 253.010. We therefore

5 affirm the district court’s judgment as to the Fourth Amendment seizure claim

against the County.2

II. Fourteenth Amendment.

A. The district court correctly held that Glover violated the Fourteenth

Amendment by seizing Mathis’ property without notice. Glover argues, as he has

twice unsuccessfully done before in this Court, that he is entitled to qualified

immunity on the due process claims. Mathis v. Cty. of Lyon, 633 F.3d 877, 879 (9th

Cir. 2011); Mathis v. Cty. of Lyon, 591 F. App’x 635, 635 (9th Cir. 2015). Applying

the law of the case doctrine, we decline to revisit those prior decisions. See

Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988).

B. The district court did not err in denying Glover’s motion for judgment as

a matter of law on punitive damages. The plaintiffs produced evidence that Glover

did not photograph any of the Mathis property when he removed it, contrary to his

routine practice, and hid some of the property in his warehouse, only revealing its

location after his assistant informed the police. A reasonable jury could have

concluded that Glover intended to convert the property. See Smith v. Wade, 461 U.S.

30, 56 (1983).

2 Because the damages awarded on the Fourth Amendment claims all appear to arise from the seizure, our decision to reverse the judgment as to the search claim does not affect the damages award against the County.

6 C. The district court did not abuse its discretion by denying Glover’s motion

for a new trial on the emotional damages award. Had he followed constitutionally

required procedure, this injury would not have occurred. See Chalmers v. City of

Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985). Moreover, the jury was instructed

that the emotional distress damages must arise directly from Glover’s

unconstitutional actions. The Mathis brothers’ testimony about the emotional

distress they suffered was sufficient to support the award. See Zhang v. Am. Gem

Seafoods, Inc., 339 F.3d 1020, 1040–41 (9th Cir. 2003).

4. The County is liable because Glover was a final policymaker. See Lytle,

382 F.3d at 982–83. The district court also correctly rejected the County’s argument

that the plaintiffs had an adequate post-deprivation remedy in the form of a tort

lawsuit. This is not a case in which a “random and unauthorized act by a state

employee” caused a constitutional deprivation, nor was it “impossible” for the

County to prevent the violation. See Zinermon v. Burch, 494 U.S. 113, 128–29

(1990).

III. State Law Claims.

A. The district court did not err by denying Glover’s motion for judgment as

a matter of law on the plaintiffs’ trespass to chattels and conversion claims. Nevada

law authorizes a public administrator to “secure” property; it does not expressly

7 authorize the removal of personal property from a home without notice or judicial

process. See Nev. Rev. Stat. § 253.0405.

B. The district court correctly applied the Nevada statutory cap on tort

damages against state employees. Nev. Rev. Stat. § 41.035. Because the cap

functions “on a per person per claim basis,” the property damage award to the Trust

for six tort claims did not exceed the then-applicable $50,000 limit. See Nev. Rev.

Stat. § 41.035 (1995); Cty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 961 P.2d

754, 761 (Nev. 1998).

C. The district court did not abuse its discretion by denying Glover’s motion

for a new trial because of “ambiguous” jury responses. The district court reasonably

concluded the jury had followed its instruction to consider the constitutional and

state law claims separately and that its verdict did so. See Pierce v. S. Pac. Transp.

Co., 823 F.2d 1366, 1370 (9th Cir. 1987).

IV. Other Issues Raised by the County and Glover.

A. The district court did not abuse its discretion by admitting evidence about

Glover’s prior bad acts and the County’s lack of supervision. The jury was properly

instructed that the evidence was admitted only for the purpose of establishing the

County’s liability for Glover’s constitutional violations.

B. The district court did not abuse its discretion by failing to instruct the jury

that the plaintiffs were not pursuing a negligent hiring claim; it instead allowed the

8 County to argue to the jury that any failure to train or supervise was irrelevant to the

issues before it.

C. The district court did not abuse its discretion by awarding plaintiffs 7%

compound prejudgment interest. The rate was supported by the testimony of the

plaintiffs’ expert, and the district court expressly found the calculation was based on

the appropriate considerations.

D. The district court did not abuse its discretion by awarding attorneys’ fees

for the plaintiffs’ success in prior appellate proceedings. If, as here, a plaintiff

becomes a prevailing party only after an interlocutory appeal, he “should

presumptively be eligible for attorney’s fees incurred during the first appeal, because

that appeal likely contributed to the success of the underlying litigation.” Yamada

v. Snipes, 786 F.3d 1182, 1210 (9th Cir. 2015).

V. The Plaintiffs’ Cross-Appeal.

A. The district court did not err by granting Glover qualified immunity on the

Fourth Amendment seizure claim. No Supreme Court or Ninth Circuit case has held

that a public official violates the Fourth Amendment when he enters the home of a

decedent armed with apparent statutory authority to secure the property. It was

therefore not clearly established that Glover’s “particular” conduct in entering the

home violated the Fourth Amendment. See Mullenix v. Luna, 136 S. Ct. 305, 308

(2015).

9 B. The district court did not abuse its discretion by denying prejudgment

interest on the unliquidated emotional damages awards. The court determined that

prejudgment interest was unnecessary to make the plaintiffs whole, because the

award accounted for the emotional impact suffered after Glover’s entry of the

residence. See In re Acequia, Inc., 34 F.3d 800, 818 (9th Cir. 1994).

AFFIRMED in part; REVERSED in part and REMANDED. Each party

to bear its own costs.

10