Praveen Khurana v. North Central District Health Department;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRAVEEN KHURANA,
Plaintiff - Appellant,
v.
NORTH CENTRAL DISTRICT HEALTH
DEPARTMENT; et al.,
Defendants - Appellees.
No. 12-35587
D.C. No. 3:10-cv-00579-BLW
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Praveen Khurana appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging federal and state law claims arising out of
the inspections of his restaurant and the suspensions of his food license. We have
FILED
MAY 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument, and denies Khurana’s request for oral argument, filed on
July 11, 2013. See Fed. R. App. P. 34(a)(2).

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jurisdiction under 28 U.S.C. § 1291. We review de novo. Szajer v. City of Los
Angeles, 632 F.3d 607, 610 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment on Khurana’s claims
for tortious interference with a prospective economic advantage because Khurana
failed to raise a genuine dispute of material fact as to whether defendants’ conduct
was wrongful or whether defendants had an improper motive. See Syringa
Networks, LLC. v. Idaho Dep’t of Admin., 305 P.3d 499, 508-09 (Idaho 2013) (the
elements of a tortious with prospective economic advantage claim); see also Idaho
First Nat’l Bank v. Bliss Valley Foods, Inc., 824 P.2d 841, 861 (Idaho 1991)
(interference must be “wrongful by some measure beyond the fact of the
interference itself”) (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Khurana’s claims
for intentional and negligent infliction of emotional distress, and slander and libel,
because Khurana failed to raise a genuine dispute of material fact as to whether
defendants were entitled to immunity under Idaho Code § 6-904. See Idaho Code
§§ 6-904(1), (3) (in the absence of malice or criminal intent, immunity extends to
any claim arising out of “the failure to exercise or perform a discretionary function
or duty” and to claims for libel and slander); Idaho Code §§ 6-904B(3-4) (in the
absence of malice or criminal intent, immunity extends to claims relating to the
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denial or suspension of a license, and the making of an inadequate inspection); see
also Anderson v. City of Pocatello, 731 P.2d 171, 183 (Idaho 1987) (defining
malice under § 6-904 as “the intentional commission of a wrongful or unlawful act,
without legal justification or excuse and with ill will, whether or not injury was
intended”).
The district court properly granted summary judgment on Khurana’s Fourth
Amendment claims, because Khurana failed to raise a genuine dispute as to
whether it would have been clear to reasonable inspectors that a warrantless search
was unlawful, given prior written consent to unannounced inspections, and a
subsequent verbal revocation of consent. See Pearson v. Callahan, 555 U.S. 223,
232 (2009) (explaining two part test for qualified immunity).
The district court properly granted summary judgment on Khurana’s due
process claims, because Khurana failed to raise a genuine dispute as to whether
defendants violated his substantive or procedural due process rights. See County of
Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998) (for a substantive due process
violation, the conduct at issue must shock the conscience and violate the decencies
of civilized conduct); Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th
Cir. 1993) (elements of a § 1983 procedural due process claim).
The district court properly granted summary judgment on Khurana’s equal
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protection claim against Moehrle, because he failed to raise a genuine dispute as to
whether he was intentionally treated differently from others similarly situated
without a rational basis, or was intentionally discriminated against based on his
membership in a protected class. See Vill. of Willowbrook v. Olech, 528 U.S. 562,
564 (2000) (per curiam) (elements of equal protection “class of one” claim); see
also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (elements
of a § 1983 equal protection claim).
The district court properly granted summary judgment on Khurana’s § 1981
claim, because Khurana failed to raise a genuine dispute as to whether defendants
discriminated against him on the basis of his race. See 42 U.S.C. § 1981; see also
Doe v. Kamehameha Schs./Bernice Pauahi Bishop Estate, 470 F.3d 827, 836-37
(9th Cir. 2006) (en banc) (the purpose of § 1981 was to address racial
discrimination).
We do not consider issues or arguments not specifically and distinctly raised
and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th
Cir. 2009) (per curiam).
AFFIRMED.
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