Kerima Lewis v. City of Berkeley

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                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 16 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KERIMA LEWIS,                                    No. 09-16126

              Plaintiff - Appellant,             D.C. No. 4:08-cv-05089-WDB

  v.
                                                 MEMORANDUM *
CITY OF BERKELEY,

              Defendant - Appellee.



                   Appeal from the United States District Court
                     for the Northern District of California
                   Wayne D. Brazil, Magistrate Judge, Presiding

                       Argued and Submitted April 16, 2010
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**

       Plaintiff-Appellant Kerima Lewis appeals the district court’s dismissal of her

complaint alleging violations of the Equal Protection Clause of the Fourteenth


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Amendment and its counterpart in the California Constitution, see Cal. Const. art.

I, § 7. Lewis argues the district court should not have dismissed her complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6).

      The district court properly determined that Lewis’s complaint lacked

sufficient factual allegations to state a claim for a violation of equal protection.

The allegations of discriminatory animus in Lewis’s complaint are all legal

conclusions couched as factual allegations that the district court was not bound to

accept as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

      The court properly took judicial notice of public records to establish that the

City amended its zoning ordinance in 1998, revoked the U-Haul facility’s use

permit in 2007, and stated legitimate, race-neutral reasons for doing so. See Lee v.

City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). The court did not

violate Federal Rule of Evidence 802. The City did not offer the resolution to

prove the truth of the statements it contained concerning complaints that had been

made against the U-Haul facility. The City offered the resolution only to show that

it had stated legitimate reasons for revoking the U-Haul facility’s use permit. See

Las Vegas Nightlife, Inc. v. Clark County, 38 F.3d 1100, 1102 (9th Cir. 1994).

      AFFIRMED.




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