James A. McPheters v. City of Boise;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
EN/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES A. MCPHETERS,
Plaintiff - Appellant,
v.
CITY OF BOISE; et al.,
Defendants - Appellees.
No. 08-35708
D.C. No. 1:08-cv-00137-BLW
MEMORANDUM *
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted December 15, 2009**
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
James A. McPheters appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action with prejudice for failure to state a claim
FILED
JAN 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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pursuant to 28 U.S.C. § 1915(e)(2). We have jurisdiction under 28 U.S.C. § 1291.
We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order), and we affirm.
The district court properly concluded that McPheters did not acquire title to
the property at issue by adverse possession because the record shows that he did
not meet the requirements for adverse possession under Idaho law. See Idaho Code
Ann. § 5-210 (2001).
The district court properly dismissed McPheters’s Fourth Amendment claim
because he was not legitimately on the premises at the time of the alleged search
and seizure. See United States v. Cunag, 386 F.3d 888, 893 (2004) (stating that
“when an individual is not legitimately on the premises, he does not enjoy the
protection afforded by the Fourth Amendment”).
The district court properly dismissed McPheters’s due process claim because
the State of Idaho provides an adequate post-deprivation remedy. See Idaho Code
Ann. § 6-901 et seq.; Hudson v. Palmer, 468 U.S. 517, 533 (1984) (deprivation of
property does not constitute a due process violation when a post-deprivation state
remedy is available).

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The district court properly dismissed McPheters’s action without leave to
amend because amendment of the complaint would be futile. See Chappel v. Lab.
Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000).
McPheters’s remaining contentions are unpersuasive.
AFFIRMED.

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