The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, proceeding pro se, brings this civil action regarding seizure of cattle. Pending before the court is defendants' motion for summary judgment (Doc. 46). Plaintiff filed an opposition to the motion*fn1 (Doc. 53), and defendants filed a reply (Doc. 54). A hearing on this matter is was taken off calendar pursuant Local Rule 78-230(c), (h).
Plaintiff commenced this action on October 18, 2006. Pursuant to 28 U.S.C. § 1915(e)(2), the court was required to screen plaintiff's complaint. Accordingly, the court found plaintiff's complaint asserted cognizable claims against defendants Mike Kuyper and Ralph Mauck for deprivation of his property without proper due process. Plaintiff's complaint also named two federal agencies, the Bureau of Land Management (BLM) and the Department of the Interior, as defendants. The two agencies were dismissed as defendants to this action, and this action proceeds against the two individual defendants. (See Docs. 10, 43). The individual defendants filed a motion to dismiss, which was granted in part and denied in part. (See Docs. 40, 45).
Plaintiff's complaint alleges that the BLM impounded his cattle without providing him proper notice of the seizure. He claims he did not get a trespass notice until April 18, 2005, 12 days after the cattle were impounded. He alleges he had a meeting with defendant Kuyper regarding the return of his cattle, and was told he had to provide proof of ownership and had to have a brand inspection. However, no further meeting was held prior to the cattle being sold at auction. Plaintiff alleges his constitutional due process rights were violated. Following the partial granting of the motion to dismiss, this action proceeds against defendants Kuyper and Mauck, in their individual capacities only, on Plaintiff's claim of due process violation pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Any tort claims Plaintiff attempted to claim have been dismissed.
II. MOTION FOR SUMMARY JUDGMENT
Defendants bring this motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Defendants argue Plaintiff was provided multiple opportunities to prove the cattle were his, but he was unable to establish his property interest therein. They claim they followed all the proper procedures in allowing Plaintiff an opportunity to prove the cattle were his. In addition, they argue they are entitled to qualified immunity because Plaintiff's constitutional right was not clearly established, and even if it was, no reasonable officer would have known their actions were unlawful.
Plaintiff argues that he was not provided due process to prove his ownership in the cattle. He states numerous meetings were set up and cancelled, and he was not allowed an opportunity to participate in the State Brand Inspector's determination of ownership.
A. Summary Judgment Standards
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).
"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
The Due Process Clause of the Fifth Amendment guarantees that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." In order to prevail on a claim of deprivation of due process, a plaintiff must first establish the existence of a liberty or property interest for which the protection is sought; it then has to be decided "what procedures constitute 'due process of law.'" Ingraham v. Wright, 430 U.S. 651, 672 (1977) (citations omitted); see also Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972). Due process protects against the deprivation of property where there is a legitimate claim of entitlement to the property. See Bd. of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are defined, by existing rules that stem from an independent source -- such as state law -- and which secure certain benefits and support claims of entitlement to those benefits. See id.
It is well settled that "some form of hearing is required before an individual is finally deprived of a property interest." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974)). While "'[d]ue process is flexible and calls for such procedural protections as the particular situation demands,'" "[t]he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). However, there can be circumstances "that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971). "A predeprivation hearing may be postponed 'where some valid governmental interest is at stake.'" First Nat. Bank & Trust v. Dep't of Treasury, 63 F.3d 894, 896 (9th Cir. 1995) (quoting U.S. v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993)).
To determine whether a predeprivation hearing is required, a balancing of three factors is required: "First, the private interest that will be affected by the official action; second the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335.
The defendants summarize the statutory and regulatory law regarding cattle grazing and ownership as follows, which Plaintiff does not contest:
BLM Regulations Regarding Unauthorized Grazing on Public Lands
The Taylor Grazing Act of 1934 requires the Secretary of the Interior to protect, administer, regulate, and improve grazing districts on public land. 43 U.S.C. § 315a. In particular, it requires him to make rules and regulations "to regulate [the grazing districts'] occupancy and use, to preserve the land and its resources from destruction or unnecessary injury, to provide for the orderly use, improvement, and development of the range." Id. These regulations make it illegal to allow livestock such as cattle to graze on ...