Kansas Penn Gaming, LLC v. Collins
2011 U.S. App. LEXIS 18187
| 10th Cir. | 2011Background
- Kansas Penn acquired Cherokee County property to develop a casino and sought licensure as Lottery Gaming Facility Manager under Kansas law.
- Kansas Penn withdrew its Facility Manager application; Cherokee County filed a breach-of-contract suit, securing an attachment of Kansas Penn’s $25 million bidder’s fee, which remained pending.
- After the deadline extension, a Cherokee County Health Department enforcement official issued a notice alleging the property violated nuisance laws and required cleanup within 45 days.
- Kansas Penn conducted its own investigation and found no evidence of burning, but alleged the property condition did not constitute a nuisance and that other Cherokee County properties were in similar or worse condition.
- Kansas Penn requested records under the Kansas Open Records Act and learned there were no citizen complaints, no documented on-site investigations, and no similar notices to other owners since 2006.
- Kansas Penn filed a 42 U.S.C. § 1983 complaint alleging class-of-one equal protection violations; the district court dismissed under Twombly/Iqbal, and the appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kansas Penn states a plausible class-of-one claim. | Kansas Penn alleges selective enforcement without rational basis. | Enforcement discretion and lack of similarly situated comparators foreclose claim. | Dismissed; claim not plausible under Twombly/Iqbal. |
| Whether Kansas Penn sufficiently alleged “similarly situated” comparators. | Numerous parcels exist in comparable or worse condition and were treated differently. | Allegations are conclusory and do not identify specific comparators in all material respects. | Dismissed for failure to plead similarly situated comparators with specificity. |
| Whether the § 1983 claims against individual commissioners and the County survive. | Commissioners acted in concert with Hayes and were personally involved. | Allegations fail to show personal participation or final policymaking by commissioners. | Dismissed; no personal involvement or policy basis shown. |
| Whether the County is liable under municipal § 1983 theory. | Notice issued by CCHD was authorized as county policy. | No formal policy or final policymaker evidence; insufficient link to final policymaker. | Dismissed; no final policy or authorization shown. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (concrete factual allegations required; no mere conclusions)
- Village of Willowbrook v. Olech, 528 U.S. 562 (U.S. 2000) (class-of-one doctrine; similarly situated without rational basis)
- Engquist v. Oregon Dept. of Agric., 553 U.S. 591 (U.S. 2008) (limits class-of-one in discretionary public employment context)
- Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836 (10th Cir. 2005) (class-of-one framework; requires rational basis and similarly situated)
- Jennings v. City of Stillwater, 383 F.3d 1199 (10th Cir. 2004) (caution on broad class-of-one claims; emphasis on specificity)
- Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202 (10th Cir. 2006) (need for similarly situated evidence in class-of-one claims)
- Robbins v. Oklahoma ex rel. Dep't of Human Servs., 519 F.3d 1242 (10th Cir. 2008) (context-specific application of plausibility standard in § 1983)
- Smith v. United States, 561 F.3d 1090 (10th Cir. 2009) (contextual pleading standards in complex claims)
- Leib v. Hillsborough County Pub. Transp. Comm'n, 558 F.3d 1301 (11th Cir. 2009) (demanding comparator showing in class-of-one)
- Purze v. Village of Winthrop Harbor, 286 F.3d 452 (7th Cir. 2002) (requires prima facie identical comparators for class-of-one claims)