FILED
NOT FOR PUBLICATION
NOV 6 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEWALT PRODUCTIONS, INC., DBA No. 19-35806
Fontaine Bleau; RODNEY DEWALT,
D.C. No. 3:14-cv-01017-AC
Plaintiffs-Appellants,
v. MEMORANDUM*
CITY OF PORTLAND; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted October 28, 2020
Portland, Oregon
Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.
Plaintiffs DeWalt Productions, Inc., DBA Fontaine Bleau; and Rodney
DeWalt ("Plaintiffs") timely appeal summary judgment. We have jurisdiction
under 28 U.S.C. § 1291. Reviewing de novo, King v. County of Los Angeles, 885
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
F.3d 548, 556 (9th Cir. 2018), we affirm.
1. Defendant Steven Marks is entitled to prosecutorial immunity from
Plaintiffs’ procedural due process claim. Chalkboard, Inc. v. Brandt,
902 F.2d 1375, 1378 (9th Cir. 1989). His authority to rescind the order suspending
Plaintiffs’ liquor license was "inextricably intertwined" with his authority to issue
the order. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 928 (9th Cir. 2004).
Defendant Marks did not engage in any ultra vires act that would remove his
immunity, particularly where his withdrawal of the first suspension order stemmed
from Plaintiffs’ own argument regarding a possible defect with service. Thus, the
district court did not err by dismissing Plaintiffs’ due process claim.
2. Even viewing the facts in the light most favorable to Plaintiffs, there are
no genuine disputes of fact as to whether the City Defendants acted with
discriminatory animus in requesting that the Oregon Liquor Control Commission
suspend Plaintiffs’ liquor license.
As to Plaintiffs’ claim under 42 U.S.C. § 1981, plaintiffs "must initially
plead and ultimately prove that, but for race, [they] would not have suffered the
loss of a legally protected right." Comcast Corp. v. Nat’l Ass’n of African
Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020). Given the fatal shooting and
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concomitant lack of security at the club, which precipitated the City’s request for
the liquor license suspension, Plaintiffs have not established a genuine issue of
material fact that, but for the fact that the club was Black-owned, the liquor license
would not have been suspended.
With respect to Plaintiffs’ equal protection and Title VI claims, we note that
the City has made five requests for a club’s liquor license to be suspended: two for
Black-owned clubs, one for an Asian-owned club, and two for White-owned clubs.
Given those statistics and the nature of the fatal shooting here, there is no genuine
issue of material fact regarding whether similarly situated non-Black-owned clubs
were treated more leniently.
Municipal liability under Monell v. Department of Social Services, 436 U.S.
658 (1978), does not lie because there is insufficient evidence of a racially
discriminatory policy toward Black-owned clubs. Plaintiffs failed to create a
genuine dispute of fact as to whether the suspension of the liquor license was
caused by a "practice or custom which constitutes the standard operating procedure
of the local governmental entity." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.
1996) (internal quotation marks omitted).
3. Plaintiffs forfeited the First Amendment, intentional interference with
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prospective economic relations, and intentional infliction of emotional distress
claims, by failing to brief them meaningfully. United States v. Graf, 610 F.3d
1148, 1166 (9th Cir. 2010).
AFFIRMED.
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