FILED
NOT FOR PUBLICATION DEC 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THOMAS PAUL, No. 09-36043
Plaintiff - Appellant, D.C. No. 2:08-CV-05039-LRS
v.
MEMORANDUM *
CITY OF SUNNYSIDE, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted November 5, 2010
Seattle, Washington
Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**
Thomas Paul appeals from the district court’s order granting summary
judgment for Defendants City of Sunnyside, et al., in his 42 U.S.C. § 1983 action.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
grant of summary judgment. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922
(9th Cir. 2004). We affirm.
Although the district court may have erred in relying on some theories that it
raised sua sponte in its ruling, it also relied on the grounds raised by Defendants,
which were well taken. Defendants asserted that Paul’s substantive due process
claims failed because he did not proffer evidence of clearly arbitrary and
unreasonable conduct. They maintained that Paul’s equal protection claim failed
because there was no evidence that he was treated differently from other
contractors in Sunnyside. As for Paul’s conspiracy claim, Defendants argued that
there was no evidence that Stockwell, Kunkler or Storms agreed to violate Paul’s
civil rights. Finally, with regard to Paul’s retaliation claim, Defendants asserted
that Kunkler had prosecutorial immunity and probable cause to charge Paul with
misdemeanors. These arguments gave Paul adequate notice of the grounds that
justify summary judgment, and we conclude that he has had a “full and fair
opportunity to ventilate” those issues. Cool Fuel, Inc. v. Connett, 685 F.2d 309,
312 (9th Cir. 1982).
With respect to his substantive due process claim for the revocation of his
conditional use permit, Paul did not tender any evidence to suggest that the
individual Defendants’ conduct would shock the conscience of a reasonable trier of
Page 2 of 5
fact. See Tennison v. City & County of S.F., 570 F.3d 1078, 1089 (9th Cir. 2009).
Consequently, summary judgment in favor of these Defendants is appropriate on
this claim.
Summary judgment also is warranted on Paul’s substantive due process
claim against Defendants Stockwell and Kunkler for their purported decisions not
to overrule Storms. The record lacks any evidence to suggest that their decisions
would shock the conscience. In addition, even if proved, their decisions would not
have violated Paul’s due process liberty interest in pursuing his occupation. See
Conn v. Gabbert, 526 U.S. 286, 291 (1999). Cases involving a violation of this
interest “have ‘dealt with a complete prohibition on the right to engage in a calling,
and not a sort of brief interruption.’” Guzman v. Shewry, 552 F.3d 941, 954 (9th
Cir. 2009) (quoting Conn, 526 U.S. at 292) (emphasis in original and brackets
omitted). Thus, even if Paul were prohibited from working in Sunnyside as a
building contractor, there is no evidence that Stockwell’s and Kunkler’s alleged
decisions precluded him from working as such elsewhere. See, e.g., Llamas v.
Butte Cmty. College Dist., 238 F.3d 1123, 1128 (9th Cir. 2001); Wedges/Ledges
of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 65 (9th Cir. 1994).
Summary judgment in favor of Stockwell and Kunkler also is justified on
Paul’s equal protection claim against them. Although a plaintiff may bring such a
Page 3 of 5
claim as a “class of one,” there must be evidence that a public official intentionally
treated the plaintiff differently from others similarly situated. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here, the record does not show
that AHO Construction was a similarly situated building contractor or that
Stockwell and Kunkler intentionally subjected Paul to irrational, disparate
treatment. Because there is no evidence that Stockwell, Kunkler or Storms
violated Paul’s civil rights, summary judgment is also appropriate on his related
claim that they conspired to do so.
Kunkler filed misdemeanor charges against Paul in his role as city attorney
and, therefore, had absolute prosecutorial immunity from liability on Paul’s claim
for First Amendment retaliation. See Milstein v. Cooley, 257 F.3d 1004, 1007-08
(9th Cir. 2001). Paul argues that Kunkler was not immune because he acted as a
complaining witness. There is no factual basis for this argument. Kunkler filed a
“Narrative,” which stated the nature of the charges against Paul. Kunkler did not
sign the document under penalty of perjury or make any other affirmation as to the
truth of its allegations. Thus, his filing of the Narrative is analogous to the filing of
an information, for which prosecuting attorneys have absolute immunity. Kalina v.
Fletcher, 522 U.S. 118, 129 (1997).
Page 4 of 5
Even if Kunkler were not immune, Paul’s retaliation claim against him fails
on the merits. There is no evidence that Kunkler had retaliatory intent and, even if
he did, that it was the but-for cause for his decision to charge Paul with
misdemeanors. See Hartman v. Moore, 547 U.S. 250, 256 (2006); Dietrich v. John
Ascuaga’s Nugget, 548 F.3d 892, 900-01 (9th Cir. 2008). Kunkler had probable
cause to charge Paul. For this reason, as well as his prosecutorial immunity,
Kunkler is entitled to summary judgment on Paul’s First Amendment retaliation
claim.
Because the record does not support a finding that Paul suffered a
constitutional injury, the City is entitled to summary judgment on the claims
against it under Monell v. Department of Social Services, 436 U.S. 658 (1978).
McSherry v. City of Long Beach, 584 F.3d 1129, 1147 (9th Cir. 2009).
Finally, we conclude that the district court did not abuse its discretion by
denying Paul a continuance pursuant to Federal Rule of Civil Procedure 56(f). In
his affidavit, Paul’s counsel did not establish that the sought-after facts existed, nor
did he demonstrate how they were essential to opposing summary judgment.
Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822,
827 (9th Cir. 2008).
AFFIRMED.
Page 5 of 5