Lothar Kuster v. Michael Foley ( 2011 )

FILED
NOT FOR PUBLICATION JUN 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOTHAR KUSTER, No. 08-16552
Plaintiff - Appellant, D.C. Nos. 1:07-CV-00264-
SOM-BMK
v. 1:07-CV-00265-
SOM-BMK
MICHAEL W. FOLEY, Director of
Planning for the County of Maui (as an
individual); CHARLES VILLALON, MEMORANDUM*
Building Inspector for the County of Maui
(as an individual); TY FUKUROKU,
Engineer for the County of Maui (as an
individual); JAY ARAKAWA, Zoning
Inspector for the County of Maui (as an
individual); COUNTY OF MAUI, a
governmental entity,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted October 13, 2010
Submission Deferred October 14, 2010
Resubmitted April 13, 2011
Honolulu, Hawaii
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HAWKINS, McKEOWN, and RAWLINSON, Circuit Judges.
Appellant Lothar Kuster (Kuster) appeals the district court’s order granting
Appellees’ motion for summary judgment on Kuster’s claims for relief pursuant to
42 U.S.C. §§ 1983 and 1985.
“To prevail in a civil action against state actors for the deprivation of rights,
privileges, or immunities secured by the Constitution and laws, a plaintiff must
show that (1) acts by the defendants (2) under color of state law (3) deprived him
of federal rights, privileges or immunities and (4) caused him damage.” Thornton
v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (citations, alterations
and internal quotation marks omitted). Kuster advances four constitutional bases
for his § 1983 action against the individual defendants: (a) violation of his
procedural due process rights; (b) violation of his right to substantive due process;
(c) violation of his rights to equal protection of the law; and (d) retaliation in
violation of his First Amendment rights.
A. Procedural Due Process
Kuster contends that although he satisfied all the requirements, Appellees
failed to issue him a building permit, in violation of the Special Management Area
(SMA) Rules governing the permit issuance process. See Maui, Haw., Planning
2
Commission, SMA Rules § 12-202-12. As the reviewing body has discretion to
issue a permit, Kuster does not have a protectable property interest in one, and
therefore cannot demonstrate deprivation of a federal due process right. See
Shanks v. Dressel, 540 F.3d 1082, 1091 (9th Cir. 2008) (“Only if the governing
statute compels a result upon compliance with certain criteria, none of which
involve the exercise of discretion by the reviewing body, does it create a
constitutionally protected property interest. . .”) (citations and internal quotation
marks omitted).
B. Substantive Due Process
To assert a substantive due process claim, a party must “establish that the
[government’s] actions were arbitrary and irrational and had no relationship to a
legitimate government objective.” City of Los Angeles v. McLaughlin, 865 F.2d
1084, 1088 (9th Cir. 1989) (citation omitted). “A substantive due process claim
does not require proof that all use of the property has been denied, but rather that
the interference with property rights was irrational or arbitrary.” Bateson v.
Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988) (citations omitted). “The irreducible
minimum of a substantive due process claim challenging land use regulation is
failure to advance any governmental purpose.” N. Pacifica LLC v. City of Pacifica,
526 F.3d 478, 484 (9th Cir. 2008) (citation omitted).
3
Kuster failed to demonstrate that the delay in the permit application process
was due to arbitrary and capricious conduct. Kuster presented no evidence that the
Planning Director responsible for issuance of the permit was aware of Kuster’s
contentious relationship with his neighbors or that he would be sympathetic to
them while antagonistic toward Kuster. Kuster similarly presented no evidence
that the Planning Director even read his letters complaining of delays. Appellees
presented evidence that the delay in processing, although regrettable, was due to
understaffing and a backlog. Having failed to provide any evidence to the
contrary, Kuster did not raise an issue of a material fact with respect to his
substantive due process claim.
C. Equal Protection
Kuster contends that he was treated differently than similarly situated
building permit applicants. However, Kuster failed to raise a genuine issue of
material fact “that the discriminatory treatment was intentionally directed just at
him, as opposed to being an accident or a random act,” N. Pacifica LLC, 526 F.3d
at 486 (citation, alteration, and internal quotation marks omitted) (discussing the
requirements for an equal protection claim premised on a “class of one” theory), or
that he is similarly situated to other applicants who were treated more favorably,
4
see SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.
2002).
The summary of public records proffered by Kuster is not admissible
evidence because the underlying documents were not accessible on the referenced
website. See City of Phoenix v. Com/Sys., Inc. 706 F.2d 1033, 1038 (9th Cir.
1983).
D. Retaliation
Kuster asserts that the individual Appellees harassed him because he filed a
quiet title action and multiple police reports against his neighbors, and sent
complaint letters to the County about its permit issuance process. However, Kuster
failed to raise a genuine issue of a material fact regarding whether his conduct
“was a substantial or motivating factor in the [Appellees’] decision.” Soranno’s
Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (citation and internal
quotation marks omitted). Indeed, there is no evidence in the record that any
government official took affirmative steps to prevent or delay action on Kuster’s
application.
Because Kuster failed to provide sufficient evidence to raise a material issue
of fact regarding violation of any constitutional right, summary judgment in favor
5
of the individual defendants was appropriate. See Ove v. Gwinn, 264 F.3d 817,
824, (9th Cir. 2001).
Finally, Kuster’s § 1983 claim against the County of Maui fails because
absent a constitutional, Kuster cannot maintain his claim against the government
entity. See Simmons v. Navajo Cnty., 609 F.3d 1011, 1021 (9th Cir. 2010).
AFFIRMED.
6