603 F. App'x 544
9th Cir.2015Background
- The Konarskis, owners of a Tucson housing-development business, sued the City of Tucson and city officials alleging First Amendment retaliation, equal-protection violations, conspiracy claims, ethnic discrimination, and a state-law claim after city officials declined meetings and ordered a shutdown of a housing project.
- Plaintiffs alleged City Attorney Michael Rankin instructed council members and Development staff to avoid meeting the Konarskis because of a pending civil-rights lawsuit, and that Development staff ordered a shutdown of a project (citing parapet-height violations).
- Plaintiffs asserted First Amendment retaliation under 42 U.S.C. § 1983 for alleged official silence/avoidance and for the shutdown; they also asserted a “class-of-one” equal protection claim under § 1983 and conspiracy/complicity claims under §§ 1985(3) and 1986.
- Plaintiffs alleged ethnic discrimination (Polish ancestry) under §§ 1981 and 1985(3), based on derogatory statements by some Development employees and the shutdown decision.
- The district court dismissed the complaint (with prejudice for some counts); plaintiffs moved under Rule 60(b) which was denied. The Ninth Circuit affirmed most dismissals but vacated the § 1983 class-of-one dismissal (count three) and reversed dismissal with prejudice of the state-law claim (count eight).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation (§ 1983): silence/meetings refusal | Rankin’s instruction to avoid meetings and referral of inquiries was retaliatory for protected litigation activity | Rankin’s advice was litigation-protective (avoid statements in pending suit); no plausible facts showing retaliatory animus | Affirmed dismissal — plaintiffs failed to plausibly plead retaliation |
| First Amendment retaliation (shutdown) | Shutdown was motivated by retaliatory animus tied to Rankin’s directions | Only factual link was referral to Rankin; plaintiffs pleaded conclusory statements insufficient to show Rankin caused retaliatory shutdown | Affirmed dismissal — no plausible causal or animus allegations |
| Class-of-one equal protection (§ 1983) | City treated Konarskis differently without rational basis (meetings and shutdown) | No facts showing similarly situated persons received different treatment or lack of rational basis | Vacated dismissal with prejudice as to count three; remanded with instruction to grant leave to amend |
| § 1985(3) / § 1986 conspiracy to deprive equal rights (class-of-one theory) | Conspiracy to deprive civil rights as a class-of-one | Plaintiffs are not a protected class requiring federal assistance; cannot allege class-based conspiracy | Dismissal affirmed — conspiracy/§1986 claims cannot be cured |
| Ethnic-discrimination claims (§ 1981, § 1985(3)) | Derogatory comments by Development employees and shutdown reflect Polish-ancestry discrimination | Only one decisionmaker (Duarte) plausibly influenced the shutdown; his comment “nobody likes you” insufficient to plausibly show ethnic animus or municipal policy | Affirmed dismissal — insufficient to plausibly plead discrimination |
| State-law claim (count eight) | State-law claims should proceed if federal claims are dismissed | District court dismissed with prejudice along with federal claims | Reversed as to prejudice: dismissal of state claim with prejudice was abuse of discretion; remanded to dismiss without prejudice or allow state resolution |
Key Cases Cited
- Hartman v. Moore, 547 U.S. 250 (2006) (retaliation claims require proof of retaliatory animus and causation)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (courts need not accept conclusory allegations; pleadings must be plausible)
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (class-of-one equal protection standard requires showing no rational basis for disparate treatment)
- Jewel v. National Security Agency, 673 F.3d 902 (9th Cir. 2011) (standard for leave to amend after dismissal)
- Saldana v. Occidental Petroleum Corp., 774 F.3d 544 (9th Cir. 2014) (appellate court may affirm on any basis supported by the record)
- McCalden v. California Library Ass'n, 955 F.2d 1214 (9th Cir. 1990) (limitations on § 1985 conspiracy claims where plaintiff is not a protected class)
- Harmston v. City & County of San Francisco, 627 F.3d 1273 (9th Cir. 2010) (interpretation of prior precedent and procedural rules)
- Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) (municipal liability requires a policy or widespread practice to show discriminatory custom)
- United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) (federal courts should dismisspendent state claims without prejudice when federal claims are dismissed)