Gary Lowry v. Yavapai County Board of Superv

FILED
NOT FOR PUBLICATION JAN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY LOWRY; MARIAN CAROL, No. 08-17408
Plaintiffs - Appellants, D.C. No. 3:08-cv-08025-NVW
v.
MEMORANDUM *
YAVAPAI COUNTY BOARD OF
SUPERVISORS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Gary Lowry and Marian Carol appeal pro se from the district court’s
judgment in their action alleging violations of their religious freedom rights under
*
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).
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federal and state law. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a grant of summary judgment. San Jose Christian Coll. v. City of
Morgan Hill, 360 F.3d 1024, 1029 (9th Cir. 2004). We may affirm on any ground
supported by the record, id. at 1030, and we affirm.
Summary judgment was properly granted on plaintiffs’ claims under the
Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and
Arizona law because the undisputed evidence establishes there was no substantial
burden on their exercise of religion. See id. at 1035-36 (concluding there was no
substantial burden on the exercise of religion under RLUIPA where party could file
application for zoning permit); State v. Hardesty, 214 P.3d 1004, 1007 (Ariz. 2009)
(explaining that, to establish a violation of Arizona’s Free Exercise of Religion
Act, a party must establish, inter alia, that a governmental act substantially burdens
the exercise of religion).
Summary judgment was properly granted on plaintiffs’ First Amendment
claims because the challenged zoning laws are neutral and generally applicable.
See San Jose Christian Coll., 360 F.3d at 1030-32 (granting summary judgment
where the zoning law was neutral and generally applicable).
Plaintiffs’ equal protection claims fail because plaintiffs have failed to
identify others who were treated differently under the ordinances. See Christian
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Gospel Church, Inc. v. City & County of San Francisco, 896 F.2d 1221, 1226 (9th
Cir. 1990) (“[Any] equal protection argument requires the existence of at least two
classifications of persons which are treated differently under the law.” (internal
quotation marks and citation omitted)).
Plaintiffs’ remaining contentions lack merit.
Because we affirm summary judgment on the merits, we do not address the
district court’s imposition of terminating sanctions as an alternative basis for
dismissal.
We lack jurisdiction to review the district court’s order denying plaintiffs’
motion for rehearing because plaintiffs did not file a notice of appeal from that
order. See TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915
F.2d 1351, 1354 (9th Cir. 1990).
AFFIRMED.
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