                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 30 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KYE S. BARKER, a single woman and D-            No.    16-35395
SONG LLC, a Washington limited liability
company,                                        D.C. No. 3:14-cv-05589-BHS

                Plaintiffs-Appellants,
                                                MEMORANDUM*
 v.

TOWN OF RUSTON, a political
subdivision of the State of Washington; et
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                       Argued and Submitted April 11, 2018
                               Seattle, Washington

Before: HAWKINS and GRABER, Circuit Judges, and TEILBORG,** District
Judge.

      Kye S. Barker and D-Song LLC, owners of the Unicorn Sports Bar (“the

Unicorn”), appeal the grant of summary judgment to the Town of Ruston, the

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James A. Teilborg, United States District Judge for the
District of Arizona, sitting by designation.
Ruston Police Department (“RPD”), Bruce Hopkins, Jeremy Kunkel, James

Kaylor, Victor Celis, and John Doe 1-5 (“Appellees”) on Barker’s 42 U.S.C.

§ 1983 claims.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Barker’s Fourth Amendment claim fails because none of Appellees’ alleged

conduct resulted in a search or a seizure. There was no search because RPD

officers did no more than “examine[] the area[s] [in and around the Unicorn] in the

same way as might be expected of any other person.” Zimmerman v. City of

Oakland, 255 F.3d 734, 740 (9th Cir. 2001). There was no seizure because nothing

in the record establishes that RPD officers meaningfully interfered with Barker’s

possessory interest in the Unicorn. See United States v. Jacobsen, 466 U.S. 109,

113 (1984).

      Barker’s equal protection claim is likewise unavailing because the record

does not show that the Unicorn was treated differently than similarly situated bars.

See United States v. Armstrong, 517 U.S. 456, 465 (1996) (applying the “similarly

situated” test in the racial discrimination context); N. Pacifica LLC v. City of


      1
             On appeal, both Barker and D-Song LLC allege violations of § 1983;
however, only Barker asserted such claims below. Barker v. Town of Ruston, No.
C14-5589 BHS, 2016 WL 1572546, at *1 (W.D. Wash. Apr. 19, 2016).
Accordingly, D-Song LLC has waived its § 1983 claims. See Taylor v. Sentry Life
Ins. Co., 729 F.2d 652, 655–56 (9th Cir. 1984) (per curiam) (holding that, except in
“exceptional circumstances,” claims not raised before the district court are waived
on appeal (first citing Rothman v. Hosp. Serv. of S. Cal., 510 F.2d 956, 960 (9th
Cir. 1975); and then citing Gard v. United States, 594 F.2d 1230, 1235 (9th Cir.
1979))).

                                         2
Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (applying the “similarly situated” test

in the class-of-one context).

      Furthermore, Barker’s substantive due process claim is unsuccessful because

there is no evidence in the record showing that Barker was completely prohibited

from pursuing her desired profession. See Conn v. Gabbert, 526 U.S. 286, 292

(1999); Guzman v. Shewry, 552 F.3d 941, 954 (9th Cir. 2009).

      Similarly, Barker’s procedural due process claim is fruitless because no

evidence in the record supports the finding of a due process violation.        See

Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th

Cir. 1998).

      Finally, there can be no municipal liability under Monell v. Department of

Social Services of New York, 436 U.S. 658 (1978) because the underlying

constitutional claims were appropriately dismissed. City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986) (per curiam).

      AFFIRMED.




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