The Bookstore, Inc. v. Randy Leonard , 474 F. App'x 676 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THE BOOKSTORE, INC., an Oregon No. 11-35436
corporation; DANIEL COSSETTE;
DONNA COSSETTE; MICHAEL D.C. No. 3:09-cv-01490-BR
WRIGHT; LINDA WRIGHT,
Plaintiffs - Appellants, MEMORANDUM *
v.
RANDY LEONARD, individually and in
his official capacity as Portland City
Commissioner; MICHAEL ALDERMAN,
individually and in his official capacity as
Portland City Fire Inspector; JEFF
MYERS, individually and in his official
capacity as Portland Police Bureau
Officer; JOSEPH BOTKIN, individually
and in his capacity as Portland Bureau of
Development Services Inspector; HANK
MCDONALD, individually and in his
capacity as Portland Bureau of
Development Services Inspector; CITY
OF PORTLAND, a municipal corporation,
Defendants - Appellees
Appeal from the United States District Court
for the District of Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Anna J. Brown, District Judge, Presiding
Argued and Submitted July 12, 2012
Portland, Oregon
Before: GOODWIN, PREGERSON, and CHRISTEN, Circuit Judges.
Plaintiffs-Appellants, The Bookstore, Inc., an Oregon corporation, and its
owners, appeal the district court’s grant of summary judgment in favor of
Defendants-Appellees, the City of Portland and several Portland officials in their
official and individual capacities. We review de novo, Gerhart v. Lake Cnty., 637
F.3d 1013, 1019 (9th Cir. 2011), and we affirm. The parties are familiar with the
facts underlying the appeal, and thus we do not include them here.
On appeal, Appellants argue that Appellees: (1) violated their equal
protection rights by intentionally treating their property differently than similarly
situated properties without a rational basis, (2) intentionally interfered with their
economic relations, and (3) negligently shut off power to one of their buildings
causing its roof to collapse.
1. Appellants assert a “class of one” equal protection claim. In a “class of one”
claim, a plaintiff “does not allege that the defendants discriminate against a group
with whom she shares characteristics, but rather that the defendants simply harbor
animus against her in particular and therefore treated her arbitrarily.” Lazy Y
Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). To succeed on a “class
of one” claim, a plaintiff must demonstrate that the defendant: “(1) intentionally
(2) treated [plaintiff] differently than other similarly situated property owners, (3)
without a rational basis.” Gerhart, 637 F.3d at 1022. Even if defendants have a
rational basis for their acts, “in an equal protection claim based on selective
enforcement of the law, a plaintiff can show that a defendant’s alleged rational
basis for his acts is a pretext for an impermissible motive.” Engquist v. Or. Dep’t
of Agric., 478 F.3d 985, 993 (9th Cir. 2007). A “plaintiff may show pretext by
creating a triable issue of fact that either: (1) the proffered rational basis was
objectively false; or (2) the defendant actually acted based on an improper motive.”
Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 946 (9th Cir. 2004).
Appellants did not put forth any evidence that they were treated differently
than other similarly situated businesses; they do not establish a genuine issue of
fact that Appellees targeted them without a rational basis; and they do not put forth
sufficient evidence that Appellants’ proffered rational basis was a pretext for an
impermissible motive.
2. Appellants concede that their intentional interference claim rises and falls
with their equal protection claim. Because Appellants’ equal protection claim
fails, their intentional interference claim fails as well.
3. Appellants failed to establish that a genuine issue of material fact exists as to
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whether Appellees acted negligently when they shut off the power to both
buildings. See, e.g., Nelson v. City of Davis, 571 F.3d 924, 929 n.2 (9th Cir. 2009).
AFFIRMED.
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