Ashford v. City of Brownsville
This text of Ashford v. City of Brownsville (Ashford v. City of Brownsville) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GAYLE ASHFORD, No. 23-2804 D.C. No. Plaintiff - Appellant, 6:19-cv-01540-IM v. MEMORANDUM* CITY OF BROWNSVILLE, a municipal corporation of Oregon; SCOTT MCDOWELL, City Administrator,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding
Submitted December 3, 2024** Portland, Oregon
Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.
Plaintiff-Appellant Gayle Ashford (“Ashford”) applied to the Planning
Commission of Defendant City of Brownsville (the “City”) for a conditional use
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). permit to expand her medical marijuana business to include recreational marijuana
sales. Defendant Scott McDowell (“McDowell”), the City Administrator, provided
the Planning Commission with legal advice, including informing the Commission
that Ashford’s application complied with all the City’s ordinances. Nonetheless,
the Planning Commission denied Ashford’s application, citing “the increased
potential risk that children and youth could be negatively impacted.” The City
Council initially affirmed the denial upon appeal. When Ashford gave notice of
her intent to appeal to Oregon’s Land Use Board of Appeals, the City Council
retracted its decision. At a subsequent hearing on the application, McDowell
issued a City Administrator Report to express the City’s frustration with Oregon’s
actions in legalizing marijuana while acknowledging that City’s ability to “address
[its] concerns” is “preempted” by state law. The City Council then granted
Ashford’s conditional use permit.
Ashford brought suit under 42 U.S.C. § 1983, seeking damages for the loss
of profits for the year she was without a permit to sell recreational marijuana,
alleging that she suffered a “class-of-one” equal protection violation. The district
court granted Defendants’ motion for summary judgment. We have jurisdiction of
this matter under 28 U.S.C. § 1291, and we affirm.
“We review a grant of summary judgment . . . de novo, applying the same
standard of review as the district court under Federal Rule of Civil Procedure 56.”
2 23-2804 Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). This rule applies
to a grant of summary judgment based on qualified immunity. See Evans v.
Skolnik, 997 F.3d 1060, 1064 (9th Cir. 2021). Under Rule 56, a court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
1. Ashford fails to establish a class-of-one equal protection violation
because she has no evidence of a similarly situated comparator. An equal
protection claim can “be sustained even if the plaintiff has not alleged class-based
discrimination, but instead claims that she has been irrationally singled out as a so-
called ‘class of one.’” Gerhardt v. Lake Cnty., 637 F.3d 1013, 1021 (9th Cir.
2010) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)), cert.
denied, 565 U.S. 881 (2011). To prove a class-of-one equal protection claim, the
plaintiff must show that she has been “[1] intentionally [2] treated differently from
others similarly situated and that [3] there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
As to the second element, a “plaintiff must be similarly situated to the proposed
comparator in all material respects.” SmileDirectClub, LLC v. Tippins, 31 F.4th
1110, 1123 (9th Cir. 2022) (“join[ing] . . . sister circuits” in adopting this test).
There must be “‘an extremely high degree of similarity between themselves and
3 23-2804 the persons to whom they compare themselves.’” Id. (quoting Clubside, Inc. v.
Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). Under this strict standard, the proper
comparator for Ashford is another recreational marijuana dispensary that applied
for a conditional use permit from the City.
Ashford, however, provides no evidence of the existence, let alone the
preferential treatment, of another recreational marijuana dispensary that requested
a conditional use permit from Defendants. Ashford concedes as much in her brief,
stating “no one else had applied for a recreational marijuana permit previously in
the tiny town of Brownsville.” Without a comparator, Ashford cannot establish
that she has been treated differently under the ordinances of the City. Because
Ashford cannot show a genuine dispute of material fact as to whether she suffered
a constitutional violation, her § 1983 claims against both the City and McDowell
fail. See Jackson v. City of Bremerton, 268 F.3d 646, 653–54 (9th Cir. 2001)
(“Neither a municipality nor a supervisor, however, can be held liable under
§ 1983 where no injury or constitutional violation has occurred.”); Lockett v. Cnty.
of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (“Monell claims [] require a
plaintiff to show an underlying constitutional violation.”).
2. Even if there was a genuine dispute as to whether there was a
constitutional violation, McDowell is entitled to qualified immunity. First, the
evidence does not show that McDowell caused the alleged constitutional violation;
4 23-2804 if anything, McDowell’s advice to the Planning Commission and City Council
warned them against denying Ashford’s application. See Leer v. Murphy, 844 F.2d
628, 633 (9th Cir. 1988) (“A person deprives another ‘of a constitutional right,
within the meaning of section 1983, if he does an affirmative act, participates in
another’s affirmative acts, or omits to perform an act which he is legally required
to do that causes the deprivation of which the plaintiff complains.’” (quoting
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) (cleaned up) (emphasis in
original)).
Second, Ashford points to no “‘existing precedent . . . [that] place[s] the
statutory or constitutional question beyond debate,’” Evans, 997 F.3d at 1066
(quoting Kisela v.
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