Floyd L. Morrow v. City of San Diego, a charter city

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLOYD L. MORROW; MARLENE
MORROW, individually, as taxpayers of the
City of San Diego, State of California, and
on behalf of those similarly situated,
Plaintiffs-Appellants,
v.
CITY OF SAN DIEGO, a charter city,
Defendant-Appellee,
and
MANDEL E. HIMELSTEIN, an individual;
DOES 1-100,
Defendants.
No. 17-56642
D.C. No. 3:11-cv-01497-BAS-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
* 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).
FILED
JUN 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 17-56642
Floyd L. Morrow and Marlene Morrow appeal from the district court’s
summary judgment in their 42 U.S.C. § 1983 action alleging an equal protection
claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Davis
v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007). We affirm.
The district court properly granted summary judgment because the Morrows
failed to raise a genuine dispute of material fact as to whether defendant’s actions
did not have a rational relationship to a legitimate state interest, or whether it had a
discriminatory effect or purpose. See Lacey v. Maricopa County, 693 F.3d 896,
920 (9th Cir. 2012) (to succeed on a selective enforcement claim under the Equal
Protection Clause of the Fourteenth Amendment, “a plaintiff must demonstrate that
enforcement had a discriminatory effect and [that those enforcing the statute] were
motivated by a discriminatory purpose.” (internal quotation marks omitted));
Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990) (a law that does not
implicate a fundamental right or suspect classification need only some rational
relationship to a legitimate state interest).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on

-- 2 of 3 --

3 17-56642
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

-- 3 of 3 --