Frank Konarski, husband; v. City of Tucson, a body politic;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK KONARSKI, husband; et al.,
Plaintiffs - Appellants,
v.
CITY OF TUCSON, a body politic; et al.,
Defendants - Appellees.
No. 12-17703
D.C. No. 4:11-cv-00612-LAB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Leslie Ann Bowman, Magistrate Judge, Presiding
Argued and Submitted February 12, 2015
San Francisco, California
Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.
Frank, Gabriela, Patricia, John, and Frank E. Konarski (“the Konarskis”)
appeal from the district court’s grant of summary judgment in favor of the City of
Tucson and three city officials (collectively, “the City”) on civil rights claims
FILED
MAR 25 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.

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brought under 42 U.S.C. § 1983. They also appeal from the court’s denial of leave
to amend their First Amended Complaint.
We have jurisdiction under 28 U.S.C. § 1291. For the reasons stated below,
we affirm in part, reverse in part, and remand for further proceedings on the
Konarskis’ “class of one” equal protection claim.
1. We review de novo the district court’s grant of summary judgment in
favor of the City. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011).
We view the evidence in the light most favorable to the non-moving party and
determine (1) whether there are any genuine issues of material fact and (2) whether
the district court correctly applied the relevant substantive law. See Olsen v. Idaho
State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004); Fed. R. Civ. P. 56(a).
2. Although the Konarskis have conflated their procedural and substantive
due process arguments at times, we address them separately. We affirm the district
court’s summary judgment ruling on the Konarskis’ procedural due process claims.
As a threshold requirement, a plaintiff alleging a due process violation must
demonstrate a deprivation of a constitutionally protected liberty or property
interest. Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999). The
Konarskis failed to allege any constitutionally protectable liberty or property
interest in support of their procedural due process claim. First, they failed to show
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“a complete prohibition” on their ability to pursue their professions as landlords.
Id. (quoting Conn v. Gabbert, 526 U.S. 286, 292 (1999)). Second, they failed to
establish a protectable property interest in Section 8 program participation. See
Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1019 (9th Cir. 2011) (holding that
any claim of entitlement to a government benefit must be supported by an
independent source). Finally, to the extent that the Konarskis did have a property
interest in the rescinded Housing Assistance Payment contracts, a state law breach
of contract action “provides adequate process for the deprivation of a property
right derived from a contract.” See DeBoer v. Pennington, 287 F.3d 748, 749 (9th
Cir. 2002) (citing Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001)).
3. We also affirm the district court’s summary judgment ruling on the
Konarskis’ substantive due process claim. They did not allege government
conduct sufficiently “egregious” to constitute a substantive due process violation.
See Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir. 2008) (quoting Lewis v. Cnty.
of Sacramento, 523 U.S. 833, 846 (1998)).
4. The district court erred, however, in finding no genuine factual dispute on
the Konarskis’ equal protection claim. See Fed. R. Civ. P. 56(a). The Konarskis
supported their “class of one” theory with video evidence that a city official
informed one of the Konarskis’ prospective tenants that there was a “personal
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vendetta” between the City and the Konarskis. When evidence tends to show that
an otherwise rational basis is pretext for genuine animosity, summary judgment is
improper. See Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 947 (9th Cir.
2004), overruled on other grounds by Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,
542 (2005). Because there was evidence in the record which, if credited by a trier
of fact, could support the Konarskis’ claim that they were treated differently
without any rational basis, we reverse the summary judgment ruling and remand
for further proceedings.1
5. The district court did not abuse its discretion in denying the Konarskis’
request for leave to amend their First Amended Complaint. See Ventress v. Japan
Airlines, 603 F.3d 676, 680 (9th Cir. 2010). The Konarskis’ proposed Second
Amended Complaint added new racial discrimination claims under 42 U.S.C. §§
1981 and 1985, but it did not allege facts plausibly showing that the City
intentionally discriminated against the Konarskis on the basis of race. Therefore,
1 We recognize that the Konarskis’ civil rights claim against the City of
Tucson as a municipality is governed by Monell v. N.Y.C. Dep’t of Soc. Servs.,
which requires an additional showing of a governmental “policy or custom.” 436
U.S. 658, 694 (1978). The City did not move for summary judgment on the basis
that the alleged civil rights violations were not “part of an accepted pattern and
practice,” and instead focused on whether the Konarskis presented evidence of a
constitutional violation. Accordingly, our discussion is limited to the
constitutional issue.
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the district court did not abuse its discretion when it determined that the proposed
amendments would be futile. See McQuillion v. Schwarzenegger, 369 F.3d 1091,
1099 (9th Cir. 2004).
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
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