                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 08 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THOMAS PAUL,                                     No. 09-36043

              Plaintiff - Appellant,             D.C. No. 2:08-CV-05039-LRS

  v.
                                                 MEMORANDUM *
CITY OF SUNNYSIDE, et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                     for the Eastern District of Washington
                  Lonny R. Suko, Chief District Judge, Presiding

                     Argued and Submitted November 5, 2010
                              Seattle, Washington

Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**

       Thomas Paul appeals from the district court’s order granting summary

judgment for Defendants City of Sunnyside, et al., in his 42 U.S.C. § 1983 action.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
grant of summary judgment. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922

(9th Cir. 2004). We affirm.

      Although the district court may have erred in relying on some theories that it

raised sua sponte in its ruling, it also relied on the grounds raised by Defendants,

which were well taken. Defendants asserted that Paul’s substantive due process

claims failed because he did not proffer evidence of clearly arbitrary and

unreasonable conduct. They maintained that Paul’s equal protection claim failed

because there was no evidence that he was treated differently from other

contractors in Sunnyside. As for Paul’s conspiracy claim, Defendants argued that

there was no evidence that Stockwell, Kunkler or Storms agreed to violate Paul’s

civil rights. Finally, with regard to Paul’s retaliation claim, Defendants asserted

that Kunkler had prosecutorial immunity and probable cause to charge Paul with

misdemeanors. These arguments gave Paul adequate notice of the grounds that

justify summary judgment, and we conclude that he has had a “full and fair

opportunity to ventilate” those issues. Cool Fuel, Inc. v. Connett, 685 F.2d 309,

312 (9th Cir. 1982).

      With respect to his substantive due process claim for the revocation of his

conditional use permit, Paul did not tender any evidence to suggest that the

individual Defendants’ conduct would shock the conscience of a reasonable trier of


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fact. See Tennison v. City & County of S.F., 570 F.3d 1078, 1089 (9th Cir. 2009).

Consequently, summary judgment in favor of these Defendants is appropriate on

this claim.

      Summary judgment also is warranted on Paul’s substantive due process

claim against Defendants Stockwell and Kunkler for their purported decisions not

to overrule Storms. The record lacks any evidence to suggest that their decisions

would shock the conscience. In addition, even if proved, their decisions would not

have violated Paul’s due process liberty interest in pursuing his occupation. See

Conn v. Gabbert, 526 U.S. 286, 291 (1999). Cases involving a violation of this

interest “have ‘dealt with a complete prohibition on the right to engage in a calling,

and not a sort of brief interruption.’” Guzman v. Shewry, 552 F.3d 941, 954 (9th

Cir. 2009) (quoting Conn, 526 U.S. at 292) (emphasis in original and brackets

omitted). Thus, even if Paul were prohibited from working in Sunnyside as a

building contractor, there is no evidence that Stockwell’s and Kunkler’s alleged

decisions precluded him from working as such elsewhere. See, e.g., Llamas v.

Butte Cmty. College Dist., 238 F.3d 1123, 1128 (9th Cir. 2001); Wedges/Ledges

of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 65 (9th Cir. 1994).

      Summary judgment in favor of Stockwell and Kunkler also is justified on

Paul’s equal protection claim against them. Although a plaintiff may bring such a


                                     Page 3 of 5
claim as a “class of one,” there must be evidence that a public official intentionally

treated the plaintiff differently from others similarly situated. Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here, the record does not show

that AHO Construction was a similarly situated building contractor or that

Stockwell and Kunkler intentionally subjected Paul to irrational, disparate

treatment. Because there is no evidence that Stockwell, Kunkler or Storms

violated Paul’s civil rights, summary judgment is also appropriate on his related

claim that they conspired to do so.

      Kunkler filed misdemeanor charges against Paul in his role as city attorney

and, therefore, had absolute prosecutorial immunity from liability on Paul’s claim

for First Amendment retaliation. See Milstein v. Cooley, 257 F.3d 1004, 1007-08

(9th Cir. 2001). Paul argues that Kunkler was not immune because he acted as a

complaining witness. There is no factual basis for this argument. Kunkler filed a

“Narrative,” which stated the nature of the charges against Paul. Kunkler did not

sign the document under penalty of perjury or make any other affirmation as to the

truth of its allegations. Thus, his filing of the Narrative is analogous to the filing of

an information, for which prosecuting attorneys have absolute immunity. Kalina v.

Fletcher, 522 U.S. 118, 129 (1997).




                                      Page 4 of 5
         Even if Kunkler were not immune, Paul’s retaliation claim against him fails

on the merits. There is no evidence that Kunkler had retaliatory intent and, even if

he did, that it was the but-for cause for his decision to charge Paul with

misdemeanors. See Hartman v. Moore, 547 U.S. 250, 256 (2006); Dietrich v. John

Ascuaga’s Nugget, 548 F.3d 892, 900-01 (9th Cir. 2008). Kunkler had probable

cause to charge Paul. For this reason, as well as his prosecutorial immunity,

Kunkler is entitled to summary judgment on Paul’s First Amendment retaliation

claim.

         Because the record does not support a finding that Paul suffered a

constitutional injury, the City is entitled to summary judgment on the claims

against it under Monell v. Department of Social Services, 436 U.S. 658 (1978).

McSherry v. City of Long Beach, 584 F.3d 1129, 1147 (9th Cir. 2009).

         Finally, we conclude that the district court did not abuse its discretion by

denying Paul a continuance pursuant to Federal Rule of Civil Procedure 56(f). In

his affidavit, Paul’s counsel did not establish that the sought-after facts existed, nor

did he demonstrate how they were essential to opposing summary judgment.

Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822,

827 (9th Cir. 2008).

         AFFIRMED.


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