Ky Karnecki v. City of Sisters ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KY KARNECKI, No. 18-35079
Plaintiff-Appellant, D.C. No. 6:13-cv-02150-TC
v.
MEMORANDUM*
CITY OF SISTERS, Oregon; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted May 15, 2019
Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
On summary judgment, the district court dismissed Ky Karnecki’s
(Karnecki) 42 U.S.C. §§ 1983 and 1985 claims, finding them barred by the
doctrines of issue preclusion, Rooker-Feldman abstention, and Younger abstention.
Because we agree that the doctrine of issue preclusion bars this suit, we do not
reach the district court’s alternative holdings. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Karnecki’s complaint alleges that city officials violated his equal protection
rights as guaranteed by the Fourteenth Amendment by treating his business
differently than other similarly situated businesses, as well as a conspiracy to do
the same.1 We review grants of summary judgment de novo. See Szajer v. City of
Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011).
A. Karnecki does not assert that he belonged to a protected class; instead he
asserts a “class of one” equal protection claim. Gerhart v. Lake Cty., Mont., 637
F.3d 1013, 1022 (9th Cir. 2011) (to prove a class of one equal protection claim, a
plaintiff must show that the defendants “(1) intentionally (2) treated [the plaintiff]
differently than other similarly situated [business owners], (3) without a rational
basis.” (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Karnecki’s equal protection claims hinge on the question of whether his
business was similarly situated to another business operating in the City of
Sisters—a farmstand called Richard’s Produce.2 However, Karnecki raised the
1
Karnecki’s complaint also includes several state law claims. Karnecki has not
appealed the district court’s grant of summary judgment on those claims and has
therefore waived any challenge to their dismissal.
2
Karnecki also alleges that his business was similarly situated to another business
in the City of Sisters called the Belfry. However, Karnecki’s opening brief does
not raise any arguments concerning the Belfry, and thus he has waived any
argument that his business and the Belfry were similarly situated. See Hayes v.
Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017) (arguments not specifically
and distinctly raised and argued in an opening brief are waived).
2
question of whether his business and Richard’s Produce were similarly situated as
a defense in a state court action. In that action, Karnecki challenged the citation
issued when he refused to remove his stand after his temporary use permit expired.
Karnecki did not dispute the validity of the citation, but instead argued that it
should be set aside because it was the product of selective enforcement; Karnecki
argued the City had failed to enforce similar temporary use permit violations
committed by Richard’s Produce. Following a trial, the state court found that the
two business were not similarly situated, because they were at all times relevant to
the citation operating pursuant to entirely different licensing schemes; Richard’s
Produce was at all times relevant to the citation operating pursuant to a permanent
site plan, not a temporary use permit. As those businesses were not similarly
situated, the state court enforced the citation, because it found that Karnecki’s
business had not been singled out or otherwise subjected to discriminatory
treatment when the citation was issued. Importantly, Karnecki could have
appealed this finding, but he did not.
We must “give a state-court judgment the same preclusive effect as would
be given that judgment under the law of the State in which the judgment was
rendered.” Dodd v. Hood River Cty., 59 F.3d 852, 861 (9th Cir. 1995) (citation
omitted). Under Oregon Law, issue preclusion applies and bars parties from re-
litigating issues when: (1) the issue in the two proceedings is identical; (2) the
3
issue was actually litigated and was essential to a final decision on the merits in the
prior proceeding; (3) the party sought to be precluded has had a full and fair
opportunity to be heard on that issue; (4) the party sought to be precluded was a
party or was in privity with a party to the prior proceeding; and (5) the prior
proceeding was the type of proceeding to which this court will give preclusive
effect. See Nelson v. Emerald People’s Util. Dist., 862 P.2d 1293, 1297 (Or.
1993).
Each of these elements is present here regarding the question of whether
Karnecki’s business and Richard’s Produce were similarly situated. As for (1),
though the issues raised in the state court proceeding and this federal civil rights
lawsuit would ordinarily not be identical, Karnecki injected the treatment-of-
similarly-situated-businesses issue into the enforcement proceeding—which is
identical to the second essential element of the “class of one” disparate treatment
claim he has pleaded in this lawsuit. See Gerhart, 637 F.3d at 1022. As for (2),
the issue was actually and fully litigated by the same parties during the trial held
concerning Karnecki’s challenge to the citation issued by the City of Sisters and
was essential to the final decision. Elements (3) and (4) of issue preclusion under
Oregon law are present as well. As for (5), though Karnecki may have had a
colorable argument regarding this element by virtue of Oregon Revised Statute
§ 153.108(2), Karnecki has forfeited such an argument by failing to cite, discuss or
4
in any way raise an argument concerning that statutory provision in his opening
(and only) brief. Hayes, 849 F.3d at 1213.
As the question (of whether Karnecki’s business and Richard’s Produce are
similarly situated) was addressed and answered in the negative by the state court,
Karnecki’s federal claims are barred by the doctrine of issue preclusion.3
B. Plaintiff also alleges that the defendants conspired to violate his federal civil
rights. However, his opening brief raises no arguments concerning the dismissal of
this count, so we find that he has waived any objection to dismissal of this claim as
well. See id.
Moreover, even if the argument is not waived, “[c]onspiracy is not itself a
constitutional tort under § 1983” and the “‘[m]ere proof of a conspiracy is
insufficient to establish a section 1983 claim.’” Lacey v. Maricopa Cty., 693 F.3d
896, 935 (9th Cir. 2012) (en banc) (quoting Landrigan v. City of Warwick, 628
F.2d 736, 742 (1st Cir. 1980)). Instead, “there must always be an underlying
constitutional violation.” Id. Because there is none here Plaintiff’s claims of
“class of one” disparate treatment were properly dismissed for the reasons
3
We note that the district court also found that dismissal of Karnecki’s claims was
proper under the so called Rooker-Feldman and Younger abstention doctrines. We
express no view regarding the applicability of either doctrine here.
5
discussed previously.4
AFFIRMED.
4
We acknowledge that various City officials appear to have believed that
Karnecki’s business and Richard’s Produce were both operating under temporary
use permits, and thus may also have had reason to believe that they were similarly
situated when they—according to Karnecki—decided to single out Karnecki’s
business. However, whether this confusion and the surrounding circumstances
would be sufficient to support a conspiracy finding is irrelevant unless Karnecki
establishes an underlying constitutional violation, which he has not done here. See
Lacey, 693 F.3d at 935.
6
FILED
Ky Karnecki v. City of Sisters, 18-35079 MAY 31 2019
MOLLY C. DWYER, CLERK
R. Nelson, Circuit Judge, concurring: U.S. COURT OF APPEALS
I write separately to note that the Rooker-Feldman and Younger abstention
doctrines are not applicable here.
The Rooker-Feldman doctrine does not support supplanting subject matter
jurisdiction where it was properly granted. See Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 292 (2005). While the state-court judgment against
Karnecki may have preclusive effects, it did not divest his claims of properly
invoked subject matter jurisdiction.
Similarly, the Younger abstention doctrine does not apply. Federal damages
claims can only be stayed—not dismissed—under Younger. See Gilbertson v.
Albright, 381 F.3d 965, 968 (9th Cir. 2004) (en banc). As the underlying state
court proceedings had concluded, Karnecki’s claims should have been evaluated
under issue preclusion, not Younger, to determine if they should advance.
The district court inappropriately applied these abstention doctrines.
However, I agree that Karnecki’s claims are barred by issue preclusion. I therefore
concur.