Ted Papas v. Charles Leonard , 544 F. App'x 764 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TED PAPAS; ARCADIA No. 12-35467
ENTERPRISES, INC., an Oregon
corporation; DOWNTOWN DELI AND D.C. No. 3:10-cv-00550-BR
GREEK CUSINA, an Oregon corporation,
AKA Downtown Delicatessen, Inc.,
MEMORANDUM*
Plaintiffs - Appellants,
v.
CHARLES RANDALL (RANDY)
LEONARD; CITY OF PORTLAND, an
Oregon municipal corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted November 8, 2013**
Portland, Oregon
Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.
*
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).
Plaintiffs-Appellants (Plaintiffs) appeal from the district court’s order
granting Defendants-Appellees’ (Defendants) motion for summary judgment. On
appeal, Plaintiffs challenge the district court’s conclusions that they: (1) failed to
state a cognizable equal protection claim; (2) failed to produce evidence
demonstrating that Defendants engaged in First Amendment retaliation; and (3)
failed to produce evidence demonstrating that Defendants intentionally interfered
with Plaintiffs’ economic relations, in violation of Oregon law. Because the parties
are familiar with the facts and procedural history of this case, we repeat only those
facts necessary to resolve the issues raised on appeal. We affirm.
Plaintiffs argue that Defendants subjected them to disparate treatment as a
“class-of-one,” in violation of the Equal Protection clause. Nonetheless, Plaintiffs’
allegedly disparate treatment was the result of discretionary decisionmaking, and
the “class-of-one” theory is not cognizable with regard to discretionary actions.
Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (citing Engquist v. Oregon
Dep't of Agr., 553 U.S. 591, 603 (2008)).
With regard to Plaintiffs’ First Amendment claim, Plaintiffs failed to
produce evidence showing that a desire to chill speech was the but-for cause of
Defendants’ allegedly retaliatory conduct. Dietrich v. John Ascuaga’s Nugget, 548
F.3d 892, 900–01 (9th Cir. 2008). Absent such causal evidence, Plaintiffs’ First
Amendment claim fails.
Finally, Plaintiffs cannot demonstrate that Defendants intentionally
interfered with Plaintiffs’ economic relations, because Plaintiffs failed to produce
evidence that Defendants acted through improper means or with an improper
motive. See Nw. Natural Gas Co. v. Chase Gardens, Inc., 982 P.2d 1117, 1123–24
(Or. 1999).
For the foregoing reasons, the district court properly granted Defendants-
Appellees’ motion for summary judgment.
AFFIRMED.