                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-1698



ROBERT ORGAIN; REBECCA ORGAIN; M31 ANDROMEDA ENTERTAINMENT,
LLC,

                Plaintiffs – Appellants,

           v.

CITY   OF    SALISBURY,   MARYLAND,   a   Maryland   municipal
corporation; CHIEF OF POLICE ALLAN J. WEBSTER, in his
individual    and   official    capacity;   WICOMICO   COUNTY,
MARYLAND, a Maryland corporate body; LEO MCNEIL, in his
individual and official capacity as Board Member of the
Wicomico County Board of License Commissioners; W.C.
HOLLOWAY, in his individual and official capacity as Board
Member    of   the   Wicomico    County   Board   of   License
Commissioners; SHIRLEY C. GRAY, in her individual and
official capacity as Board Member of the Wicomico County
Board of License Commissioners,

                Defendants – Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Chief District
Judge. (1:02-cv-02797-BEL)


Argued:   October 30, 2008                 Decided:   December 29, 2008


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.
ARGUED: Carolyn Elefant, Washington, D.C., for Appellants.
Daniel Karp, KARPINSKI, COLARESI & KARP, P.A., Baltimore,
Maryland; David Randolph Thompson, COWDREY, THOMPSON & KARSTEN,
P.A., Easton, Maryland, for Appellees.    ON BRIEF: Victoria M.
Shearer, KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

      In    this   civil    rights     action      alleging   violations          of   the

Fourteenth     Amendment’s      Equal      Protection     Clause     and     Title       42

U.S.C. § 1981, plaintiffs Robert Orgain, Rebecca Orgain, and M31

Andromeda     Entertainment,        LLC    (collectively      Plaintiffs)         appeal

from the district court’s grant of summary judgment adverse to

them.      Plaintiffs’ claims are based upon their core allegation

that the City of Salisbury, Maryland, its police chief (in his

individual and official capacities), and the three members of

Wicomico     County’s      Board    of    License     Commissioners         (in    their

individual and official capacities), drove their nightclub out

of   business,     because     it   hosted      nights    with   a   hip-hop       music

format that attracted a predominantly black clientele.

      For reasons that follow, we affirm.



                                           I.

      On    October     25,    2000,      Robert    and    Rebecca     Orgain          (the

Orgains),    through     M31   Andromeda        Entertainment,       LLC,    opened      a

13,000 square-foot, 750-person occupancy-limit nightclub, named

Andromeda, in Salisbury, Maryland. 1               Salisbury is the county seat


      1
       Because this is an appeal from the grant of summary
judgment, we set forth the facts, based upon the evidence,
viewed in the light most favorable to Plaintiffs.    Smith v.
Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996)
(en banc).


                                          - 3 -
of    Wicomico    County,   Maryland.        Andromeda’s        profits    derived

primarily from the sale of alcoholic beverages to its customers,

pursuant to a Class D liquor license issued to the Orgains by

Wicomico     County’s   Board   of   License    Commissioners       (the    Liquor

Board).      The Orgains’ Class D liquor license limited them to

admitting customers who were at least twenty-one years old.

      Andromeda    operated     at   least     four    nights    per    week   and

offered both live bands and disc jockeys, with each night having

a different theme.       Hip-hop nights at Andromeda, initially held

only on Wednesday nights, proved to be the most popular and drew

a predominantly black clientele.             At some later point in time,

Saturday nights also became hip-hop nights at Andromeda.

      Unfortunately, Andromeda soon became a trouble spot for the

Salisbury Police Department (the SPD).                By August 10, 2001, the

SPD    had   received   fifty-eight     Calls     for     Service      concerning

incidents at or near Andromeda. 2        Some Calls for Service were for

petty offenses such as vandalism.              Many others, however, were

for more serious crimes such as assaults, thefts, disorderly

conduct, and shootings.

      2
       According to the SPD’s website, a Call for Service is “an
event occurring in or near the City of Salisbury to which one or
more Salisbury Police employees must respond to evaluate or take
action, or an event that comes to the attention of police or is
initiated by police that requires formal documentation (an
offense report, supplemental report, or accident report).”
Definition of “Call for Service,” http://www.salisburypd.com/
FAQ/faq.html (as of June 5, 2007).


                                     - 4 -
     Andromeda’s           first      shooting            incident        occurred     at

approximately       2:30     a.m.,         on     a     Wednesday       hip-hop    night.

Specifically, at approximately 2:30 a.m., on Thursday, August 9,

2001,   a   fight   took     place     near       the     vehicle    of    an   Andromeda

customer parked in Andromeda’s parking lot, resulting in a gun

being fired at the customer’s vehicle.                         The shooting left a

bullet hole in the rear hatch of the customer’s vehicle and a

bullet in its passenger compartment.

     Salisbury      Police         Chief        Allan    Webster     (Chief       Webster)

promptly    followed-up       by    sending           Robert   Orgain     the   following

letter, on August 10, 2001:

     Dear Mr. Orgain:

          According to the crime statistics compiled by the
     Salisbury    Police     Department,    your    business
     establishment known as Andromeda has generated fifty-
     eight (58) calls for service since October 25, 2000.
     The nature of the calls run from weapons possession to
     traffic accidents.    Of the fifty-eight (58) calls,
     twenty-six (26) of those calls are violence related.

          On   August   9,   2001,  the    Salisbury Police
     Department again responded to a large altercation at
     your business.    The repeated calls associated with
     violence cause me great concern, not only to the
     safety of your patrons, but to the officers of the
     Salisbury Police Department.     These calls cause a
     burden to our resources that ultimately affect our
     policing efforts throughout the City.

          Please review your internal policies concerning
     alcohol consumption and security to assist us in
     decreasing the incidents at the Andromeda. Should the
     violence related calls continue, I will discuss the
     issue with Mr. Davis Ruark, State’s Attorney for
     Wicomico County, to explore violations of the nuisance
     law.
                                           - 5 -
(J.A.   810).   Chief   Webster   copied     the   Liquor   Board,   State’s

Attorney Davis Ruark, and Salisbury Mayor Barrie Tilghman on the

letter.

     After the Liquor Board received its copy of Chief Webster’s

letter to Robert Orgain, the Liquor Board sent its own warning

letter to the Orgains on August 15, 2001, stating the following:

          The    Wicomico    County   Board    of    License
     Commissioners received a copy of a letter, dated
     August 10, 2001, sent to you from Chief Allan Webster,
     Salisbury Police Department.   This letter stated that
     there have been 58 calls for police service since
     October [2]5, 2000 at your nightclub, 26 of which were
     violence related.    The policy of this Board is that
     you, as a licensee, must maintain peace and safety for
     your patrons at all times.          Alcoholic beverage
     licenses are issued for the convenience of the public.

          This is to notify you that, should this type of
     activity continue at your licensed premise, a show-
     cause order will be issued against you and your
     license may be suspended or revoked as a result of the
     hearing.    Please make a more diligent effort to
     control alcohol consumption and provide safety for
     your patrons.

(J.A. 815).

     Robert Orgain responded to the Liquor Board by letter dated

August 20, 2001, in which letter he denied ever having received

Chief Webster’s letter; took issue with the Calls for Service

statistics cited by the Liquor Board; stated that he had drafted

correspondence to Chief Webster requesting copies of the police

reports   supporting    such   statistics;    stated   that    recent   (but

unspecified)    management      changes      at    Andromeda    had     been



                                  - 6 -
implemented;       and    stated     that    he     would   keep    the    Liquor       Board

advised.     Robert Orgain copied Chief Webster, State’s Attorney

Davis Ruark, and Salisbury Mayor Barrie Tilghman on his letter.

        Despite whatever positive management changes may have taken

place at Andromeda, on November 9, 2001, the Wicomico County

Alcohol     Task     Force     discovered           five    underage        drinkers       at

Andromeda, each who had gained entrance to Andromeda by using a

false     driver’s        license.          Additionally,         all     five    underage

drinkers failed breathalyzer tests.

        After the Task Force officers cited the Orgains for five

counts of allowing an underage person to be on the premises, and

five counts of serving alcohol to an underage person, the Liquor

Board issued the Orgains a show-cause order to appear for a

hearing on the charges on December 13, 2001.                            Four days after

such    hearing,     at    which     hearing      the     Liquor    Board       heard   live

testimony    and     the     Orgains    were        represented     by     counsel,      the

Liquor    Board    found     the     Orgains      guilty     of    ten    violations       of

Maryland’s    liquor        laws,    fined     them     $5,000.00,        and    suspended

their    liquor     license     for    five       days.      Although       the    Orgains

initially noted an appeal of the suspension to state court, they

later withdrew such appeal and served their suspension in mid-

January 2002.

        Notably, the Orgains served their liquor license suspension

after two more shooting incidents occurred on hip-hop nights at

                                            - 7 -
Andromeda.     On Wednesday, January 2, 2002, at 11:38 p.m., a

complainant advised the SPD, via a Call for Service, of shots

fired   in   Andromeda’s   parking     lot.   On   Thursday,      January   10,

2002, at 2:30 a.m., a complainant advised the SPD, via a Call

for Service, “THAT A GUN SHOT HAS GONE OFF IN THE BAR.                      ONE

EMPLOYEE WAS STRUCK OVER THE HEAD WITH A BOTTLE AND TRANSPORTED

TO [the hospital].”      (J.A. 1078).

      The day after this latest shooting incident, Chief Webster,

via   hand-delivery   by   an   SPD    officer,   sent   Robert    Orgain   the

following letter:

      Dear Mr. Orgain:

           In August of 2001, I sent you a letter concerning
      calls for service at the Andromeda Nightclub. Of the
      fifty-eight calls, almost half were of a violent
      nature.   I asked you to take steps to reduce these
      incidents in the hope it would decrease violence at
      your establishment.

           Since my letter, the Salisbury Police Department
      has responded to an additional twenty-six incidents at
      your nightclub. Of these twenty-six incidents, eleven
      have been violence related. Of the eleven, two of the
      cases involved the discharging of a handgun.

           It is quite apparent to me that whatever measures
      you have taken are ineffective which creates a very
      unsafe condition.   I have discussed this continuing
      problem with the State’s Attorney for Wicomico County
      who has also expressed grave concern for your staff,
      patrons and the police officers who respond to these
      incidents.

            As a result of your inability to maintain a safe
      establishment, I will be seeking criminal sanctions
      based    upon  this  history   of  violence   at  your
      establishment.


                                      - 8 -
(J.A.    938).          Chief    Webster    again        copied    the     Liquor   Board,

State’s     Attorney       Davis     Ruark,        and     Salisbury       Mayor     Barrie

Tilghman on his letter.

        On the same day that Robert Orgain received Chief Webster’s

letter dated January 11, 2002, Robert Orgain telephoned Chief

Webster to ask “what this was all about and what the nature of

it was.”     (J.A. 2584).           In response, Chief Webster declined to

discuss the matter with Robert Orgain and informed him that he

planned to meet with the State’s Attorney and would get back to

him after that.

        Around    the     same    date,    Chief     Webster       informed       Salisbury

Mayor Barrie Tilghman of his intent to seek charges against the

Orgains for maintaining a public nuisance.                        Also around the same

date,    Major        Jeffrey    Livingston,       Salisbury’s       Assistant      Police

Chief, forwarded a list of Andromeda’s Calls for Service to the

State’s    Attorney       for    Wicomico     County.         Notably,       no    criminal

sanctions        or    charges    were     ever    actually        filed    against    the

Plaintiffs.

        In a letter dated January 15, 2002, Robert Orgain responded

in writing to Chief Webster’s January 11, 2002 letter.                               Robert

Orgain advised Chief Webster about steps taken at Andromeda,

since Chief Webster’s August 2001 letter, to increase security,

such as physical examination of customers’ purses and a full

body    screening       utilizing    a     metal    detector.        He     also    advised

                                           - 9 -
Chief Webster that he had fired an employee whom he had learned

accepted     cash    in     exchange     for    allowing     customers       to    enter

Andromeda      through      the   rear    door,       thereby   escaping      security

screening.        Additionally, he stated that, as a result of the

shooting incidents, “we have decided to close on Wednesday night

for the foreseeable future and implement certain dress code and

other additional preventative measures to further enhance the

safety of our facility.”             (J.A. 941).         Chief Webster never had

another telephone conversation nor a letter exchange with Robert

Orgain.

       In separate letters, each dated February 7, 2002, Chief

Webster    notified       seven   other      businesses      that    they    too    had

excessive Calls for Service, including violence related calls,

and urged such businesses to assist the SPD “in reducing the

number of calls to your property.”                   (J.A. 948).    Of relevance to

the    Orgains’     claim    under     the     Equal    Protection    Clause,       each

letter notified the recipient that “[i]f you need assistance

with    this     effort,     contact      Lieutenant       Elmer     Davis    in    our

Community Affairs Section at 410-548-3165.”                  Id.

       Serious    Calls     for   Service       to    Andromeda     continued      after

Robert Orgain’s January 15, 2002 letter to Chief Webster, albeit

by a lesser amount.          The most serious incidents were as follows.

On Sunday, February 10, 2002, at 12:54 a.m., the SPD received a

Call for Service in which the complainant advised that “HE WAS

                                         - 10 -
BEATEN AND 750 DOLLARS WAS TAKEN FROM HIM LAST NIGHT AT THE

ANDROMEDA.”         (J.A. 1078).             On Sunday, May 12, 2002, at 2:34

a.m., the SPD received a Call for Service because, between 2:00

a.m.    and   2:30       a.m.,    an    Andromeda     customer     had   been     shot    in

Andromeda’s parking lot as he was leaving the club.                             On Sunday,

May 19, 2002, at 2:00 a.m., the SPD received a Call for Service

to Andromeda, which the police blotter described as follows:

“COMP ADVISED A SUBJECT PULLED A 10-32 OUT ON HIM.                              AS OFFICER

WAS AWAITING THE ARRIVAL OF THE COMPLAINANT, OFFICER ADVISED

SHOTS    FIRED      AT    0202     HRS,      POSSIBLY   TWO    DIFFERENT        SHOOTERS.”

(J.A. 1079).             Each of these incidents occurred in the early

morning hours of a hip-hop night.

       Just two days before this latest shooting incident, on May

17, 2002, the Liquor Board issued the Orgains a second order to

show cause why their liquor license should not be suspended or

revoked.      The Orgains were notified to appear before the Liquor

Board at a hearing on the matter on June 4, 2002.

       At   such    hearing,       Major      Livingston      of   the   SPD,    whom    the

Liquor Board had summoned as a witness, testified on behalf of

the SPD.      Major Livingston testified that from January 1, 2001

to May 2002, the SPD had received forty-four Calls for Service

for Andromeda “that we felt were of a violent nature or had the

potential     for    some        type   of    violence.”       (J.A.     1000).      Major

Livingston summarized each of these forty-four calls, describing

                                             - 11 -
Calls for Service relating to fights, disorderly conduct, large

crowds, and shootings.          At no time did he mention hip-hop music

or the racial composition of Andromeda’s clientele. 3

     The    Orgains   had   a    full   opportunity    to    be   heard   at   the

hearing    before   the   Liquor    Board.      In   her    testimony,    Rebecca

Orgain did not contend that any Calls for Service on the SPD’s

books were fabricated.          Indeed, she testified that Andromeda had

placed most of the Calls for Service as part of its efforts to

maintain order.       She attributed the violence related Calls for

Service at Andromeda to a local criminal element and testified

the club had hired off-duty police officers from Prince George’s

County in order to reduce the number of Calls for Service.

     Robert    Orgain     supplemented    his   wife’s      testimony.      Among

other things, he informed the Liquor Board that, after the May

12, 2002 shooting incident, Andromeda had begun barricading its

parking lot at closing time.            This measure, he explained, was

designed to prevent people bent on causing trouble from getting

near the club when the crowd was letting out.

     The Orgains called as a witness their adult son Ken Orgain,

who worked at Andromeda.          He testified that, in his view, a lot

of the problems at Andromeda were likely caused by eighteen to


     3
       Calls For Service records from the middle of March 2002 to
the middle of May 2002 were unavailable because of a computer
virus that had infected the SPD’s computer system.


                                    - 12 -
twenty-one year olds who binge drink and then engage in mischief

for lack of better things to do in Salisbury.                      The Orgains also

called James Fountain Smith, who worked at Andromeda as a part-

time disc jockey.         He remarked during the hearing that Andromeda

“‘deal[s]    with       ninety    percent     more    black      people      than   other

establishments.’”            (J.A.        554)     (alteration         in     original).

      Towards the end of the hearing, the Liquor Board invited

Assistant Wicomico County State’s Attorney Beau Oglesby (State’s

Attorney Oglesby), who was attending the hearing as an observer,

to speak.         In response, he explained that Chief Webster had

approached his office for guidance on whether Andromeda could be

prosecuted under the nuisance laws.                    State’s Attorney Oglesby

advised     the     Liquor       Board     that      his   office       had       reviewed

Andromeda’s       Calls    for     Service       record,   and    was       prepared   to

present evidence to a soon-to-be-convened grand jury.                         He stated

that there was no telling whether the grand jury would indict,

but   that        the     degree     of      violence      warranted          a     formal

investigation.

      The    Liquor       Board    members        questioned      State’s         Attorney

Oglesby, who opined that it was the responsibility of Andromeda,

not the SPD, to maintain order.                  He suggested that the club use

video cameras as a security device.                  He also stated that he did

not   see    a     similar       pattern     of     violence      at    other       county

establishments.

                                          - 13 -
       The Board then asked for closing comments.                           Rebecca Orgain

insisted          that     the       violence       occurring        at     Andromeda        was

symptomatic         of   a    larger        community    problem.          As     proof,     she

entered into evidence the Calls for Service history for Brew

River, a large restaurant/nightclub in Salisbury.                                She pointed

out    that       Brew   River       had     problems    with       violence      similar     to

Andromeda even though Brew River’s owner was highly experienced. 4

       Commenting        on        Rebecca    Orgain’s      testimony,          Liquor    Board

Commissioner W.C. Holloway stated that it was his understanding

that       Brew    River’s         Calls     for    Service       were    largely        traffic

related.          He also stated that the Liquor Board had a duty to

protect the community from shootings.

       Ultimately,           the    Liquor     Board    concluded         the    Orgains     had

violated Maryland Code Art 2B § 10-401(a)(2) and suspended their

liquor license for thirty-five days.                        The Orgains did not avail

themselves of their right to appeal the Liquor Board’s decision

to    state       court.           Instead,    on    June     12,    2002,       the     Orgains

surrendered         their          liquor     license       and      permanently         closed

Andromeda.




       4
       In the present case, Plaintiffs allege that Brew River
serves a predominantly white clientele, and therefore, the SPD
turned a blind eye to the violence at Brew River while clamping
down on Andromeda.    At no time during the hearing before the
Liquor Board, did Plaintiffs make this argument.


                                              - 14 -
        On    August      22,   2002,     Plaintiffs      filed     the          present     civil

action in the United States District Court for the District of

Maryland,         asserting       both   federal    and    state     law         claims.       The

Second       Amended       Complaint,      the    one     relevant          to    the    present

appeal, names the following as defendants:                              (1) the City of

Salisbury;          (2)    Chief     Webster,      in   both      his       individual         and

official          capacities;      (3)    Wicomico      County;     (4)          Liquor      Board

Commissioner Shirley Gray, in both her individual and official

capacities; (5) Liquor Board Commissioner Leo McNeil, in both

his individual and official capacities; and (6) Liquor Board

Commissioner W.C. Holloway, in both his individual and official

capacities          (collectively        Defendants).             The       Second        Amended

Complaint alleged a total of six counts.                       Counts I, II, and III

were based upon federal law, and Counts IV, V, and VI were based

upon state law.

        Only Counts I and III are at issue in the present appeal.

Count        I,    brought      pursuant    to     42     U.S.C.        §    1983,       alleged

Defendants          violated      Plaintiffs’      rights      under         the    Fourteenth

Amendment’s Equal Protection Clause, by treating Andromeda less

favorably than other similarly situated night clubs.                                Count III,

brought       pursuant       to     42   U.S.C.     §     1981,    alleges          Defendants

intentionally             interfered      with     Plaintiffs’          rights          to    form

contracts with black customers and black disc jockeys.



                                           - 15 -
      Following discovery, Defendants moved for summary judgment

on all counts.        Plaintiffs then voluntarily dismissed Count VI

(state law defamation) as to all Defendants and all counts as to

Wicomico County, except for Count IV (violation of the Maryland

Declaration of Rights).            The district court granted Defendants’

motion for summary judgment with respect to Counts I, II, and

III and dismissed, without prejudice, Counts IV and V.

      Following the district court’s entry of final judgment in

favor of Defendants, Plaintiffs noted this timely appeal.                         On

appeal,      Plaintiffs    challenge       the    district      court’s   grant   of

summary judgment with respect to Count I (Equal Protection) and

Count   III    (§ 1981),      in   favor     of   (1)   Chief    Webster,   in    his

individual and official capacities; (2) the City; and (3) Liquor

Board Commissioners Shirley Gray, Leo McNeil, and W.C. Holloway,

in their individual and official capacities.



                                        II.

      We review the district court’s grant of summary judgment de

novo.     See Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325,

329   (4th    Cir.   2006).        Summary    judgment    is    appropriate   when,

after adequate time for discovery, a party has failed to make a

“showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.”                 Celotex Corp. v. Catrett,

                                       - 16 -
477 U.S. 317, 322 (1986).          A genuine issue of fact exists when

there is sufficient evidence on which a reasonable jury could

return a verdict in favor of the non-moving party.                    See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).                     In resolving

a   motion   for   summary   judgment,         the    evidence    presented     must

always be taken in the light most favorable to the non-moving

party.       See   Smith,    84    F.3d    at        675.    However,       “neither

unsupported speculation, nor evidence that is merely colorable

or not significantly probative will suffice to defeat a motion

for   summary   judgment;    rather,      if    the    adverse    party     fails   to

bring forth facts showing that reasonable minds could differ on

a material point then, regardless of any proof or evidentiary

requirements imposed by the substantive law, summary judgment,

if appropriate, shall be entered.”               Bouchat v. Baltimore Ravens

Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (internal

quotation marks, alteration marks, and citations omitted).



                                     III.

      We   first   address   Plaintiffs’         challenge       to   the   district

court’s grant of summary judgment in favor of Chief Webster in

his   individual    capacity      with    respect       to   Count    I,    alleging

violation of the Fourteenth Amendment’s Equal Protection Clause.

Plaintiff’s challenge is without merit.



                                    - 17 -
      The Fourteenth Amendment’s Equal Protection Clause states,

in   relevant    part,       that    “[n]o    State    shall       . . .       deny   to    any

person    within      its    jurisdiction       the     equal      protection         of    the

laws.”      U.S. Const. amend. XIV, § 1.                         The Equal Protection

Clause    “limits     all     state    action,       prohibiting         any     state     from

denying     a    person       equal    protection          through       the     enactment,

administration,       or     enforcement       of    its    laws    and     regulations.”

Front Royal & Warren County Indus. Park Corp. v. Town of Front

Royal, 135 F.3d 275, 289 (4th Cir. 1998) (internal quotation

marks & emphasis omitted).

      Plaintiffs       premise       their    Equal     Protection         claim      against

Chief    Webster      in     his    individual       capacity       on     the    following

theories:       (1) Chief Webster intentionally caused there to be a

substantially        greater       police    presence       in   the     parking      lot    of

Andromeda       on     hip-hop         nights,        which        nights         attracted

predominantly        black    customers,       than    on    non-hip-hop          nights    at

Andromeda or on any night of the week at Brew River, which

nights attracted predominantly white customers, in an effort to

drive away black customers from Andromeda; (2) Chief Webster

threatened Andromeda with prosecution of the nuisance laws, but

did not so threaten Brew River, because Andromeda’s customers on

hip-hop    nights      were    predominantly          black,      while     Brew      River’s

customers on any night of the week were predominantly white; and

(3) Chief Webster intentionally refused to invite the Orgains to

                                            - 18 -
contact Lieutenant Elmer Davis in the SPD’s Community Affairs

Section      if       they     needed     assistance         with        Andromeda’s      crime

problems, which invitation he had expressly extended to other

businesses in his February 7, 2002 letters.

      At     a     macro      level,      Plaintiffs’        Equal        Protection      claim

against Chief Webster in his individual capacity theorizes that

facially neutral laws and policies were applied against them in

an intentionally racially discriminatory manner.                               See Yick Wo v.

Hopkins, 118 U.S. 356, 373-74 (1886) (“Though the law itself be

fair on its face, and impartial in appearance, yet, if it is

applied and administered by public authority with an evil eye

and   an    unequal         hand,   so    as   practically          to    make       unjust   and

illegal           discriminations            between          persons           in      similar

circumstances, material to their rights, the denial of equal

justice is still within the prohibition of the constitution.”);

Williams         v.    Hansen,      326      F.3d     569,     584       (4th    Cir.     2003)

(allegation that facially neutral law or policy has been applied

in an intentionally discriminatory manner states claim under the

Equal Protection Clause of the Fourteenth Amendment).                                  Notably,

the   Equal       Protection        Clause     does    not    require       Plaintiffs        “to

prove      that       the    challenged      action    rested        solely      on    racially

discriminatory          purposes.”         Arlington         Heights      v.    Metro.    Hous.

Dev. Corp., 429 U.S. 252, 265 (1977).                         Rather, Plaintiffs need

only establish that racial animus was one of several factors

                                             - 19 -
that, taken together, moved Chief Webster to act as he did.

Williams, 326 F.3d at 584-85.

       Applying       the     legal     principles          we     just    set     forth      to

Plaintiffs’ first and second theories of liability, Plaintiffs,

at     the    summary       judgment        stage,      were     required        to     proffer

sufficient evidence for a reasonable jury to find that:                                      (1)

Andromeda,       on     hip-hop       nights,        was     similarly       situated         to

Andromeda on non-hip-hop nights and Brew River on any night of

the     week;    and       (2)      Chief    Webster        intentionally         caused       a

substantially greater police presence at Andromeda on hip-hop

nights than Andromeda on non-hip-hop nights and Brew River on

any night of the week and threatened Plaintiffs with prosecution

for violation of the nuisance laws without similarly threatening

Brew River, because Andromeda’s customers on hip-hop nights were

predominantly black.             See Veney v. Wyche, 293 F.3d 726, 730 (4th

Cir.     2002)    (“To        succeed        on    an      equal      protection         claim,

[plaintiff]      must       first    demonstrate         that    he    has   been       treated

differently from others with whom he is similarly situated and

that    the   unequal       treatment       was    the     result     of   intentional        or

purposeful discrimination.”) (internal quotation marks omitted).

       Notably,       we    agree     with        Plaintiffs’       argument          that   the

district court erred in requiring them to prove, as an element

of their Equal Protection claim against Chief Webster pertaining

to the level of police presence at Andromeda on hip-hop nights,

                                            - 20 -
that the SPD’s level of presence at Andromeda on hip-hop nights

was   objectively       unreasonable           under     the     circumstances.               While

proof of objective unreasonableness, the touchstone of a Fourth

Amendment      violation,       would        be     probative             on    the     issue    of

discriminatory intent in the Equal Protection context, objective

unreasonableness         is    not    a    stand-alone              element      of     an    Equal

Protection claim.             See Veney, 293 F.3d at 730; cf. Whren v.

United States, 517 U.S. 806, 813 (1996) (“We think [our] cases

foreclose any argument that the constitutional reasonableness of

traffic      stops     depends       on     the       actual          motivations        of     the

individual      officers       involved.               We      of      course         agree     with

petitioners          that      the        Constitution              prohibits           selective

enforcement of the law based on considerations such as race.

But    the    constitutional         basis      for      objecting         to    intentionally

discriminatory         application        of      laws      is      the    Equal       Protection

Clause, not the Fourth Amendment.                     Subjective intentions play no

role in ordinary, probable-cause Fourth Amendment analysis.”).

As    our    further    analysis      will        explain,       however,        the     district

court’s error in this regard was harmless.

       As    Plaintiffs’       primary         evidence          in       support       of    their

allegation of substantially greater police presence at Andromeda

on hip-hop nights, Plaintiffs offered an affidavit by Robert

Orgain.      In its Memorandum Opinion addressing Defendants’ motion



                                           - 21 -
for summary judgment, the district court accurately summarized

Robert Orgain’s affidavit on this issue as follows:

          [Robert] Orgain stated that on hip hop nights,
     one to two Salisbury patrol cars (with one or two
     officers per car) would regularly park across the
     street from the club. He described the cars as being
     “intermittently    present”   for    “limited   periods
     throughout the evening.”     “Periodically,” he added,
     “the police would be present near the property (one or
     two blocks away) where they could observe patrons
     leaving.”   According to [Robert] Orgain, the “police
     presence exuded the appearance of setting a trap.”

          [Robert] Orgain also stated that the police
     patrolled the Andromeda parking lot.    He observed at
     least one squad car and one officer on the lot
     “virtually every Wednesday night.”    On most hip hop
     nights, “multiple” patrol cars would enter the parking
     lot on “multiple occasions, perhaps as much as once
     every half hour.”

(J.A.   566-67) (footnotes omitted).

     The district court immediately went on to explain:

          At the summary judgment hearing, the Court
     established that the police did not patrol inside
     Andromeda, and that they did not activate their
     emergency   lights    while  parked   or   patrolling.
     Plaintiffs do not allege that the police set up
     roadblocks or checkpoints.     Their core allegation,
     therefore, is of a “looming” police presence on hip
     hop nights. They contend that the police presence was
     excessive, that the police were more in evidence at
     Andromeda than they were at other Salisbury clubs, and
     that the police presence deterred customers from
     patronizing the club.

(J.A. 567).

     Assuming    arguendo   that     Plaintiffs     proffered    sufficient

evidence   for   a   reasonable     jury    to    find   the    SPD   had   a

substantially greater presence at Andromeda on hip-hop nights


                                   - 22 -
than at Andromeda on non-hip-hop nights and Brew River on any

night of the week, we hold that Plaintiffs failed to proffer

sufficient     evidence       for    a     reasonable       jury      to     find     that

Andromeda,     on     hip-hop       nights,       was     similarly        situated     to

Andromeda on non-hip-hop nights or Brew River on any night of

the week.      See Cleburne v. Cleburne Living Center, Inc., 473

U.S. 432, 439 (1985) (Equal Protection Clause “is essentially a

direction that all persons similarly situated should be treated

alike.”).      From the record, a reasonable jury could only find

that,    in   general,    hip-hop        nights     at    Andromeda        presented     a

greater   threat     to   public      safety       than    non-hip-hop       nights     at

Andromeda or any night of the week at Brew River.                            Cf. United

States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996) (criminal

offenders are similarly situated for Equal Protection analysis

“when their circumstances present no distinguishable legitimate

prosecutorial       factors     that       might    justify       making      different

prosecutorial decisions with respect to them”).                       First, the SPD

was not called upon by employees of Brew River, as it was by

employees of Andromeda on hip-hop nights, to disperse unruly

crowds    after     closing   time.         Second,       despite     the    fact     that

Andromeda     was   generally       open    at    least    four     nights    per     week

between October 25, 2000 and January 11, 2002 (the date of Chief

Webster’s second warning letter to Robert Orgain), thirty-two of

thirty-six Calls for Service to Andromeda relating to violent

                                         - 23 -
crimes (88%) occurred on hip-hop nights.                        Third, many Calls for

Service to Brew River relating to violent crimes were of a far

less serious nature than the Calls for Service to Andromeda on

hip-hop nights relating to violent crimes.                          For example, during

the same time period of October 25, 2000 to January 11, 2002,

Andromeda had three shooting incidents, each on a different hip-

hop night, while Brew River had none.                          Also, during the same

time       period,    there    were    two     assaults       on    police     officers    at

Andromeda, but none at Brew River.                          Fourth, Andromeda had two

more shooting incidents in May 2002, each on a hip-hop night.

Brew River never had a shooting incident. 5                         In sum, we hold that

Plaintiffs       failed        to   proffer        sufficient         evidence      on    the

similarly       situated       element        of      their     substantially-greater-

police-presence          theory        and     their         discriminatory-threat-of-

prosecution          theory,    with    respect        to     their    Equal      Protection

claim, for such theories to survive Chief Webster’s motion for

summary judgment.

       Although this failure of proof alone is sufficient for us

to     affirm    the      district      court,         we     now     turn   to     consider

Plaintiffs’ proffer of evidence on the racially discriminatory

intent element of these same two theories.                              In this regard,


       5
       Plaintiffs do not dispute that on March 3, 2002, Brew
River had a Call for Service regarding a “Man with Gun,” that
turned out to be a false alarm. (J.A. 3100).


                                             - 24 -
Plaintiffs primarily rely on the following:                     (1) during the time

of   Andromeda’s        operation,         Plaintiffs   contacted       the     NAACP     on

several occasions, suggesting that the SPD might be showing a

stronger presence at Andromeda as compared to other night clubs

in     Salisbury,       because       of     Andromeda’s       predominantly          black

clientele    on        hip-hop    nights;       (2)     according       to     deposition

testimony by Robert Orgain, on a hip-hop night in August 2001,

SPD Officer Morto, who had responded to a midnight call from

Andromeda for an ambulance for a man who had passed out waiting

in line for admittance, referred to the approximately 100 to 150

primarily black customers waiting in line as a “[b]lack mob,”

(J.A. 2541); (3) according to deposition testimony by Andromeda

employee Freedom Ford, following the January 2, 2002 shooting

incident at Andromeda, SPD Detective Barry Tucker suggested to

him that Andromeda should change its format on Wednesday nights

from hip-hop to country or “something like that” to “keep the

trouble away,” (J.A. 2815); (4) when the owner of Club Vissage,

also     located       in   Salisbury,         asked    Chief     Webster’s           advice

regarding how to lessen the violence on hip-hop nights at his

club,    Chief      Webster      suggested       tightening      the         dress     code,

stopping    the    serving       of   alcohol    earlier    in    the    evening,        and

changing    the     format       to   country       western;    (5)     Chief        Webster

refused to return a phone call from Robert Orgain, which Robert

Orgain    made    in    response      to    Chief    Webster’s    January       11,    2002

                                           - 25 -
letter; (6) Chief Webster copied the Liquor Board, the State’s

Attorney, and the Mayor on his two warning letters to Robert

Orgain, but did not copy the same officials on his February 7,

2002    letters       to   the   seven    other    businesses         in    which     Chief

Webster requested management’s assistance in reducing the number

of Calls for Service; (7) Harry Tindall, Andromeda’s chief of

security, testified in deposition that his friend, SPD Officer

Chris    Davis,    privately      teased    him     for    working         at   a   “n----r

club.”    (J.A.    2716).        These    anecdotal       bits     of   circumstantial

evidence, only three of which even directly pertain to Chief

Webster, viewed collectively and in the light most favorable to

Plaintiffs, fall decidedly short of the evidence necessary for a

reasonable jury to find that any additional police presence at

Andromeda on hip-hop nights, as compared to Andromeda on non-

hip-hop nights or Brew River on any night of the week, was

intentionally         caused     by     Chief     Webster,       in     part,       because

Andromeda’s       customers      on     hip-hop    nights        were      predominantly

black.     The same goes for Plaintiffs’ theory that Chief Webster

threatened Andromeda with prosecution of the nuisance laws, but

did not so threaten Brew River, because Andromeda’s customers on

hip-hop nights were predominantly black.

       Indeed,    a    reasonable       jury,   viewing      the      evidence      in   the

record, in the light most favorable to Plaintiffs, could only

find     that    any       comparable    increase     of     police         presence     at

                                         - 26 -
Andromeda   on   hip-hop   nights     and    Chief   Webster’s       threats     to

prosecute   Andromeda     under    the   nuisance    laws     were     solely    in

response to Chief Webster’s genuine concern for public safety,

given not just the quantity, but the more serious nature of

Andromeda’s record of violent crimes on hip-hop nights and based

upon his law enforcement experience.           For example, Chief Webster

did not send a letter to Robert Orgain regarding violence at

Andromeda   until   a   shooting    incident   had    occurred.          In    fact,

Chief Webster sent each of his letters to Robert Orgain the day

after a shooting incident at Andromeda on a hip-hop night had

occurred.    Such evidence strongly indicates that the shooting

incidents were a critical decision in Chief Webster’s decision

to   recommend   Andromeda   for    prosecution. 6       As      Chief    Webster

testified   in   his    deposition,      without     contradiction        in    the

record,   “the   things    that    really    concerned      me   and     drew    my

attention to the Andromeda were the shootings, so the actual

shootings   that    had    taken     place     inside    and      outside       the


      6
       Chief Webster sent his first letter to Andromeda the day
after the August 9, 2001 shooting incident.     While Plaintiffs
baldly deny in their brief that this shooting incident occurred,
they have forecast no evidence that Chief Webster did not
believe such incident had actually occurred nor any evidence to
create a triable issue of fact that such incident never
occurred.
     Chief Webster sent his second letter on January 11, 2002,
specifically referencing the fact that two incidents involving
the discharge of handguns had recently occurred.


                                   - 27 -
Andromeda.”          (J.A.    1692).      In     sum,    assuming      arguendo      that

Plaintiffs have forecast sufficient evidence for a reasonable

jury   to   find     that    Andromeda   on      hip-hop     nights    was    similarly

situated to Andromeda on non-hip-hop nights and Brew River on

any night of the week, Plaintiffs still lose on the intentional

discrimination element.             See Sunrise Corp. of Myrtle Beach v.

City   of   Myrtle     Beach,    420   F.3d      322,   328-29    (4th      Cir.    2005)

(disparate        treatment      alone      is      insufficient         to       support

constitutional remedy under Equal Protection Clause).

       Similarly, Plaintiffs’ theory that Chief Webster violated

the Equal Protection Clause by failing to notify them by letter

or   otherwise       that    they   could      contact       Salisbury’s      Community

Affairs Division for help with their crime problem while doing

so in letters to seven other businesses in Salisbury, fails for

lack of evidence of racially discriminatory intent on the part

of Chief Webster.            As we just discussed, the record contains

insufficient evidence for a reasonable jury to find that Chief

Webster harbored racially discriminatory animus toward blacks.

Moreover, Plaintiffs’ theory here is severely undercut by the

fact that one of the seven businesses to which Chief Webster

sent   a    letter    offering      Lieutenant     Elmer      Davis    as     a   helpful

contact was Club Vissage, which club Keith Orgain, son of the

Orgains and employee of Andromeda, stated in a sworn affidavit

“catered     to    African    Americans     . . .       .”     (J.A.    2877).        Any

                                       - 28 -
finding that race played some role in Chief Webster’s failure to

notify Plaintiffs by letter or otherwise that they could contact

Salisbury’s Community Affairs Division for help with their crime

problem would be purely speculative.                See Bouchat, 346 F.3d at

522 (unsupported speculation will not suffice to defeat a motion

for summary judgment).

     In    conclusion,   we    affirm      the    district    court’s     grant    of

summary judgment in favor of Chief Webster in his individual

capacity   with   respect     to   Count    I,    alleging    violation     of    the

Fourteenth Amendment’s Equal Protection Clause. 7



                                      IV.

     We    next   address     Plaintiffs’        argument    that   the   district

court erred in granting summary judgment in favor of the City

and Chief Webster, in his official capacity, with respect to

Count I, alleging violation of the Equal Protection Clause.                       We

reject Plaintiffs’ argument as without merit.




     7
       To the extent Plaintiffs have made arguments on this issue
that we have not specifically addressed, we find such arguments
without merit.
     We also note that although Chief Webster, in his individual
capacity, raised the defense of qualified immunity with respect
to Count I, the district court, having found no violation of the
Equal Protection Clause, did not reach the merits of his
qualified immunity defense. Neither do we.


                                    - 29 -
     Plaintiffs      premise    Count       I     against   the    City    and    Chief

Webster, in his official capacity, on the theory that “the City

and Webster, a policymaking authority, can be held liable for a

policy of racially motivated selective enforcement that drove

the Orgains out of business.”               (Plaintiffs’ Reply Br. at 5-6).

In   support    of   this    theory,    Plaintiffs          rely    upon   the        same

evidence they proffered in support of their Equal Protection

claim against Chief Webster, in his individual capacity.

     Treating    Chief      Webster    in       his   official     capacity      as    the

City, Edwards v. City of Goldsboro, 178 F.3d 231, 244 & 244 n.8

(4th Cir. 1999), Plaintiffs’ Equal Protection claim against the

City fails, because “a municipality may not be found liable for

a constitutional violation in the absence of an unconstitutional

act on the part of at least one individual municipal actor.”

International Ground Transp. v. Mayor and City Council of Ocean

City, Md., 475 F.3d 214, 219 (4th Cir. 2007).                       Accordingly, we

affirm the district court’s grant of summary judgment in favor

of the City (and Chief Webster in his official capacity), with

respect to Count I.



                                        V.

     We   now   turn   to    consider       the    Orgains’   argument      that       the

district court erred in granting summary judgment in favor of

Liquor Board Commissioners Shirley Gray, Leo McNeil, and W.C.

                                      - 30 -
Holloway (collectively the Liquor Board Commissioners), in their

individual    capacities,       with   respect    to    Count      I,     alleging

violation of the Equal Protection Clause. 8            The Orgains theorize

that the Liquor Board Commissioners violated their rights under

the Equal Protection Clause by issuing a five-day suspension of

their liquor license in December 2001 and subsequently issuing a

thirty-five-day suspension of their liquor license in June 2002.

With respect to the five-day suspension, the Orgains allege that

the Liquor Board Commissioners treated them more harshly than

the holder of the liquor license under which Brew River operated

by imposing a fine-only punishment on such holder for under-age

drinking violations, while imposing a fine plus a suspension on

them for under-age drinking violations.

     The Orgains’ assignment of error on this issue is without

merit.   Below, the district court asked the Orgains to marshal

their proof of racially discriminatory intent on the part of the

Liquor   Board      Commissioners.        The    Orgains     pointed      to    the

following    three    factual    circumstances:        (1)   the    two       orders

suspending    the    Orgains’    liquor    license     did    not       set    forth

detailed findings of fact; (2) a thirty-five-day suspension was

the longest suspension ever issued by the Liquor Board; and (3)


     8
       We agree with the district court that only the Orgains, as
the actual holders of the liquor license under which Andromeda
operated, have standing to sue the Liquor Board Commissioners.


                                     - 31 -
during the June 4, 2002 hearing before the Liquor Board, James

Fountain Smith, an assistant disc jockey at Andromeda remarked

that Andromeda “‘deal[s] with ninety percent more black people

than    other     establishments.’”            (J.A.        554)    (alteration         in

original).

       The district court concluded that no fair-minded jury could

find     that     race     played     any     role     in     the    Liquor          Board

Commissioners’ individual votes regarding the suspensions.                              In

this    regard,   the     district    court    first    noted      that   the    Liquor

Board’s Chairman, Leo McNeil, is himself black.                      By noting this

fact, the district court was apparently relying upon the common

sense    notion    that,     as   a   member    of     the    same    race      as    the

predominant number of Andromeda’s customers on hip-hop nights,

Liquor Board Commissioner Leo McNeil likely did not take the

race of such customers into account in twice voting to suspend

the Orgains’ liquor license.            See Neely v. United States Postal

Serv., 2007 WL 4389473 (E.D.Pa. Dec. 12, 2007) (“Although the

fact that a [decision-maker] is a member of the same protected

class    as     the      plaintiff    does     not     preclude      a      successful

discrimination claim, it substantially weakens any inference of

discrimination.”).          Id. at *8 n.4.       Second, the district court

observed that no Maryland law required the Liquor Board to make

factual findings when issuing a suspension.                   Third, the district

court    noted     that     Liquor    Board     Commissioner         W.C.     Holloway

                                      - 32 -
testified      during       his     deposition       in         this     case,    without

contradiction, that the Liquor Board normally does not provide a

factual     summary    in    its    orders    of    suspension.            Fourth,      with

respect to the length of the thirty-five-day suspension, the

district court observed that the record showed that, since 1977,

the Liquor Board had handed down six, thirty-day suspensions,

and    that    it    added    five     more    days        to     Andromeda’s        second

suspension in order to include the July 4th holiday, because the

Orgains told the Liquor Board that they experienced the biggest

crime problems at Andromeda during holiday periods.

       We agree with the district court that no fair-minded jury

could find, based upon this evidence, that race played any role

in the Liquor Board Commissioners’ individual votes to suspend

the Orgains’ liquor license.            We also add that, with respect to

the five-day suspension, the Orgains have pointed to no evidence

in    the   record    that    the    Liquor    Board       Commissioners          had    any

knowledge,      at    the    time    they     issued       such        suspension,      that

Andromeda     served    a    predominantly         black    clientele        on   hip-hop

nights. 9     In conclusion, we affirm the district court’s grant of


       9
        We also note that the Orgains have not proven that
Andromeda was similarly situated to Brew River with respect to
the underage drinking violations for which the Orgains received
the five-day suspension.      Such suspension was based upon
Andromeda’s admission of five under-age drinkers, while Brew
River’s fine-only punishment was based upon its admission of
only two under-age drinkers.


                                       - 33 -
summary judgment in favor of the Liquor Board Commissioners in

their individual capacities, with respect to Count I, alleging

violation of the Equal Protection Clause. 10



                                              VI.

        We   also    affirm        the     district       court’s    grant    of     summary

judgment in favor of the Liquor Board Commissioners, in their

official capacities, with respect to Count I, alleging violation

of   the     Equal    Protection          Clause.         Treating    the    Liquor   Board

Commissioners in their official capacities as the Liquor Board,

see Edwards, 178 F.3d at 244 & 244 n.8, the Orgains’ Equal

Protection claim against the Liquor Board fails.                               The record

contains no evidence that in either decision by the Liquor Board

to   suspend        the        Orgains’    liquor     license,       the    Liquor     Board

Commissioners were acting pursuant to a policy or custom of the

Liquor       Board        to     discriminate        against        businesses       serving

predominantly black clientele.                     See Board of County Comm’rs of

Bryan      County,    Okla.        v.     Brown,    520    U.S.     397,    403-04    (1997)


      10
        To the extent Plaintiffs have made arguments on this
issue that we have not specifically addressed, we find such
arguments without merit.
     We note that although the Liquor Board Commissioners, in
their individual capacities, raised the defense of qualified
immunity with respect to Count I, the district court, having
found no violation of the Equal Protection Clause, did not reach
the merits of such qualified immunity defense. Neither do we.


                                            - 34 -
(county may be held liable under § 1983 only if it causes a

deprivation        of    a    constitutional         right      through      a   policy     or

custom).



                                             VII.

       Plaintiffs        also    challenge       the     district     court’s      grant   of

summary judgment in favor of Chief Webster, in his individual

capacity,     and       the   City,    with    respect      to    Count     III,   alleging

intentional        interference        with      their    rights      to    contract      with

black customers and black disc jockeys, brought pursuant to 42

U.S.C. § 1981.          Plaintiffs’ challenge is without merit.

       Section      1981      guarantees      that     “[a]ll     persons        within    the

jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts . . . as

is enjoyed by white citizens . . . .”                     42 U.S.C. § 1981.          In the

words of Justice Scalia for the Supreme Court:                              “Section 1981

offers relief when racial discrimination blocks the creation of

a      contractual           relationship,        as      well        as    when     racial

discrimination impairs an existing contractual relationship, so

long    as   the     plaintiff        has   or    would        have   rights     under     the

existing or proposed contractual relationship.”                            Domino’s Pizza,

Inc. v. McDonald, 546 U.S. 470, 476 (2006).

       Plaintiffs contend the district court erred in failing to

analyze      their      § 1981    claim       under      the    burden-shifting        proof

                                            - 35 -
scheme first set forth in McDonnell Douglas Corp. v. Green, 411

U.S.     792        (1973),       for        employment       discrimination          claims.

According       to    Plaintiffs,         they    can       avail    themselves       of    the

McDonnell Douglas proof scheme in the § 1981 context, because

they lack direct evidence of racial animus.                              See Love-Lane v.

Martin, 355 F.3d 766, 786 (4th Cir. 2004) (plaintiff alleging

race    discrimination            in   violation       of   § 1981,       based     only    upon

circumstantial evidence, may seek to prove claim under McDonnell

Douglas).

       This issue need not detain us long.                           Plaintiffs seek to

impose    § 1981      liability         on    Chief    Webster,      in    his      individual

capacity, based upon their theory that he interfered with their

rights to contract with black customers and black disc jockeys,

but did not do so with respect to Brew River, because Andromeda

served     a    predominantly           black     clientele         on    hip-hop     nights.

Plaintiffs implicitly acknowledge that, in order to establish a

prima    facie       case,    under       McDonnell         Douglas,      at   the     summary

judgment       stage,      they    must      proffer    sufficient        evidence      for   a

reasonable jury to find, inter alia, that Chief Webster treated

them differently than a similarly situated club.                            Cf. Love-Lane,

335 F.3d at 802.              Plaintiffs rely upon the same evidence in

support of this element as they did in support of the similarly

situated element of their Equal Protection claim against Chief

Webster,       in    his   individual         capacity.        Needless        to    say,   the

                                              - 36 -
record does not support a reasonable inference that Andromeda,

on hip-hop nights, was similarly situated to Brew River on any

night of the week.         Accordingly, we affirm the district court’s

grant of summary judgment in favor of Chief Webster, in his

individual      capacity,     with   respect      to     Count    III.       Because

Plaintiffs do not attempt to impose § 1981 liability upon the

City upon any different evidence than it relied upon in support

of its § 1981 claim against Chief Webster, in his individual

capacity, we do the same with respect to the City. 11



                                        VIII.

     As their final issue, Plaintiffs contend the district court

erred     in   failing   to   address    the    Liquor    Board’s     assertion   of

Eleventh Amendment immunity below.              This   issue     is   a   nonstarter

for Plaintiffs.          In light of the fact that the Liquor Board

(i.e., the Liquor Board Commissioners sued in their official

capacities) does not request affirmance on the basis of Eleventh

Amendment immunity, if it is not necessary to do so, we too

refuse to reach the merits of such Eleventh Amendment immunity

defense.       See Strawser v. Atkins, 290 F.3d 720, 729 (4th Cir.

     11
        To the extent Plaintiffs have made arguments in support
of their § 1981 claims against Chief Webster, in his individual
capacity, and the City, that we have not specifically addressed,
we find such arguments without merit.




                                     - 37 -
2002) (refusing to reach merits of Eleventh Amendment Immunity

defense when defendant-officials only argued merits of the case

and   relied   upon   Eleventh   Amendment   Immunity   defense   only   if

necessary to prevent judgment against them on the merits).



                                    IX.

      In conclusion, we affirm the entry of judgment with respect

to Counts I and III.

                                                                  AFFIRMED




                                  - 38 -
