                                                                               FILED
                            NOT FOR PUBLICATION                                 MAR 25 2015

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRANK KONARSKI, husband; et al.,                  No. 12-17703

              Plaintiffs - Appellants,            D.C. No. 4:11-cv-00612-LAB

  v.
                                                  MEMORANDUM*
CITY OF TUCSON, a body politic; et al.,

              Defendants - Appellees.


                   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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.

                                          4
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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