Meredith v. Board of County Commissioners

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 3, 2015
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GEORGE A. MEREDITH,
Plaintiff - Appellant,
v. No. 14-8026
(D.C. No. 1:13-CV-00068-SWS)
BOARD OF COUNTY (D. of Wyo.)
COMMISSIONERS OF SHERIDAN
COUNTY, WYOMING; STEVE
BOND, in his capacity as Sheridan
County Building Inspector; ROD
LIESINGER, in his capacity as
Sheridan County Director of Public
Works,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges.
George Meredith claims officials in Wyoming’s Sheridan County violated
his equal protection and due process rights by using an unofficial map as the basis
for denying him permission to build a fence on his property. But to prevail on his
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
class-of-one equal protection claim, he had to identify other individuals who are
similar in all material respects and who were treated differently for no objectively
rational reason. He has not. And he forfeited his due process claim by failing to
include appendix materials that would allow us to confirm he raised the due
process claim below and by making cursory, unclear arguments on appeal.
Consequently, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM
the district court’s grant of summary judgment.
I. Background
Meredith began building a ninety-foot-long fence on one of his properties
in Sheridan County, Wyoming in 2012. For flood insurance purposes, the County
classifies some of its property under a series of Flood Insurance Rate Maps (FIR
Maps). As relevant here, one FIR Map was adopted in 1986 and revised in 1998.
When the events underlying the present claims occurred, a new, “preliminary”
FIR Map, which last had been updated in May 2012, was pending official
adoption. See App. 25, Att. 6; Supp. App. 7. The County decisions regarding
Meredith’s fence that required reference to a FIR Map were made based on the
updated preliminary map, not the map adopted in 1986 and revised in 1998.
FIR Maps are divided into zones. Meredith’s property is located in the
preliminary map’s Zone A, which is the primary flood-plain channel for drainage.
The County has adopted “Flood Hazard Standards” governing construction in
Zone A. Supp. App. 14. Those standards establish that “no man-made change to
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improved or unimproved real estate, including but not limited to buildings or
other structures . . . shall be commenced until a separate permit has been obtained
from the designated responsible person for each change.” Id. at 15.
When the County learned of Meredith’s fence construction in May 2012, it
became concerned the fence would impede water flow in the flood plain. Thus, a
County Building Inspector informed Meredith he was in violation of county
regulations and needed to either remove the fence, obtain a flood-plain permit for
the fence, or “[o]pen up the bottom twelve inches” of the fence so water could
flow freely. Id. at 8.
Meredith applied for a variance from the permit requirement and requested
a hearing before the Board of County Commissioners. At the hearing, the Board
denied a variance. He appealed that decision to the state district court, which
affirmed the Board’s decision. Meredith did not appeal further in the state
system. Instead, he sued the Board, the inspector, and the County Director of
Public Works under 42 U.S.C. §§ 1983 and 1985, alleging they violated, and
conspired to violate, his rights under the Fourteenth Amendment’s Equal
Protection and Due Process Clauses. 1
The district court granted the defendants’ motion for summary judgment.
Regarding the equal protection claim, the court concluded that (1) Meredith failed
to identify any similarly situated persons who were treated differently, and (2) the
1
As explained below, appellees dispute that he raised a due process claim.
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Board had an objectively reasonable basis for denying the variance. Turning to
due process, the court noted that Meredith had only cogently pleaded an equal
protection claim, despite his suggestions otherwise in his response brief and oral
argument before that court. Nevertheless, the court construed the suit as also
raising a substantive due process claim and concluded no such claim was
colorable. Finally, because no underlying constitutional violation had been
shown, the court rejected the § 1985 conspiracy claim.
II. Analysis
We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court. Jarvis v. Potter, 500 F.3d 1113,
1120 (10th Cir. 2007).
A. Class-of-one Equal Protection Claim
The “paradigmatic” class-of-one case arises when “a public official inflicts
a cost or burden on one person without imposing it on those who are similarly
situated in material respects, and does so without any conceivable basis other than
a wholly illegitimate motive.” Jicarilla Apache Nation v. Rio Arriba Cnty., 440
F.3d 1202, 1209 (10th Cir. 2006). A claim fails if there is “either a rational basis
for the [challenged] treatment” or “a material difference” between the plaintiff
and others who were allegedly similarly situated. Id. at 1210.
In evaluating whether a rational basis exists, we “ask not whether the
Defendants’ proffered justifications were sincere, but whether they were
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objectively reasonable.” Id. at 1211. If the justifications were reasonable, “we
do not inquire into the government actor’s actual motivations.” Kan. Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011). And, at the
summary judgment stage, identifying others who are similarly situated requires a
plaintiff to “demonstrate similarity in all material respects.” Jicarilla Apache
Nation, 440 F.3d at 1212. The state has no “duty under a class-of-one analysis to
. . . ferret out information about other parties who may or may not be similarly
situated.” Id. at 1211. That is the plaintiff’s burden.
Meredith had to show that other individuals who are similar in all material
respects were treated differently without justification. At the very least, this
would include identifying specific other landowners in Zone A who were allowed
to build a similar structure without getting a permit or who, despite being asked to
get a permit, were issued a variance upon request. He does not even attempt to do
so. He instead focuses on the County’s use of the preliminary map, arguing in
essence that using that map before its official adoption violated equal protection
by violating best practice for use of such maps. Whether that actually deviates
from best practice is disputed, but the answer would have no effect on the result
here, because it has nothing to do with whether similarly situated individuals were
treated differently.
Because Meredith has not “set forth specific facts showing that there is a
genuine issue for trial as to those dispositive matters for which [he] carries the
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burden of proof,” Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1216–17
(10th Cir. 2008), the district court properly granted summary judgment on the
class-of-one claim. 2
B. Due Process Claim
Meredith also appeals the district court’s grant of summary judgment on his
due process claim. The appellees argue he never raised a due process claim
below. Unfortunately, Meredith has provided none of the materials necessary for
us to determine whether he actually raised the claim (e.g., his complaint or filings
in district court). This fails to comply with the Federal Rules of Appellate
Procedure and this court’s rules. 3 In the past, we have “decline[d] to consider”
arguments where “the record [was] insufficient to determine whether [they were]
raised below.” U.S. S.E.C. v. Maxxon, Inc., 465 F.3d 1174, 1182 n.17 (10th Cir.
2006); see also Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000) (“Where the
2
There is thus no need to address the appellees’ collateral-estoppel
argument.
3
See Fed. R. App. P. 10(a) (requiring that “the original papers . . . filed in
the district court” be included in the record); 10th Cir. R. 10.3(A) (“Counsel must
designate a record on appeal that is sufficient for considering and deciding the
appellate issues.”); id. 10.3(B) (noting this court “need not remedy any failure by
counsel to designate an adequate record” and “may decline to consider” issues if
“the party asserting [the] issue fails to provide a record sufficient” for considering
it); id. 10.3(C) (requiring “[e]very record on appeal” to include “the last amended
complaint and answer”); id. 10.3(D) (noting that “[w]hen the appeal is from an
order disposing of a motion or other pleading” the “supporting documents . . .
filed in connection with that motion or pleading . . . must be included in the
record”).
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record is insufficient to permit review we must affirm.”); Dikeman v. Nat’l
Educators, Inc., 81 F.3d 949, 954–55 (10th Cir. 1996) (declining to “address[] the
substance of the plaintiffs’ claim” where we were “not convinced that the
plaintiffs adequately documented that this issue was preserved for appeal”).
But even if we reached the issue, the claim lacks substance. Meredith
simply repackages his objection to the preliminary map, now arguing that using
the map denied him “due process of a fair hearing.” Aplt. Br. at 44. His
argument lacks citation to any relevant authority. Nor does it address how using
the map violated due process, whether the due process claim is procedural or
substantive, or even what he must show to prevail. We “routinely have declined
to consider arguments that . . . are inadequately presented” in “an appellant’s
opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104–05 (10th Cir. 2007)
(holding that “cursory statements, without supporting analysis and case law, fail
to constitute the kind of briefing that is necessary to avoid application of the
forfeiture doctrine”). We consider the argument forfeited.
Even so, our independent review of the allegations and law discloses no
government conduct that “shocks the conscience” or “infringes upon a
fundamental right,” Seegmiller v. LaVerkin City, 528 F.3d 762, 768 (10th Cir.
2008), under substantive due process. Nor does it reveal that Meredith was
denied “the opportunity to be heard at a meaningful time and in a meaningful
manner,” McDonald v. Wise, 769 F.3d 1202, 1212–13 (10th Cir. 2014) (internal
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quotation marks omitted), or that receiving a variance is a property interest to
which Meredith had a “legitimate claim of entitlement” if certain “substantive
predicates [were] present,” Brown v. Eppler, 725 F.3d 1221, 1226–27 (10th Cir.
2013), which forecloses a procedural due process claim.
C. Section 1985 Claim
Because there is no underlying constitutional violation, the district court
correctly rejected the § 1985 claim. See Jicarilla Apache Nation, 440 F.3d at
1214.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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