     Case: 15-50946      Document: 00513546036         Page: 1    Date Filed: 06/13/2016




                           REVISED JUNE 13, 2016

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-50946                              FILED
                                                                            June 10, 2016

THREE LEGGED MONKEY, L.P.,                                                 Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CITY OF EL PASO TEXAS; EMMA ACOSTA, In Her Official Capacity as
City Representative for District Three of El Paso, Texas; JOYCE WILSON, In
Her Official Capacity as City Manager of El Paso, Texas; STEVE ORTEGA,
In His Official Capacity as City Representative for District Seven of El Paso,
Texas; JOHN F. COOK, In His Official Capacity as Mayor of the City of El
Paso; SUSANNAH M. BYRD, In Her Official Capacity as City Representative
for District Two of El Paso, Texas; ANN MORGAN LILLY, In Her Official
Capacity as City Representative for District One of El Paso, Texas,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CV-360


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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      Three Legged Monkey, LP, which operated a sports bar in El Paso from
2003 to 2013, appeals the dismissal on summary judgment of its 42 U.S.C.
§ 1983 claims that the City violated its constitutional protections against
unreasonable searches and its rights to due process and equal protection.
These claims center on inspections of and regulatory demands on the bar,
which were driven largely by complaints from people who lived nearby.
      “We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below.”               Rogers v.
Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Having reviewed the briefs and record, we agree
with the district court that there is no triable issue whether Three Legged
Monkey’s constitutional rights were violated and, in any event, no showing
that any violations were attributable to the City under Monell v. Department
of Social Services, 436 U.S. 658 (1978).
      The    Fourth    Amendment’s         general     rule    against   warrantless
administrative searches does not apply to establishments with liquor licenses,
which have “long [been] subject to close supervision and inspection.”
Colonnade Catering Corp. v. United States, 397 U.S. 72, 76–77 (1970). This is
because, in Texas as elsewhere, “the owner of a closely regulated industry, such
as that involving liquor, is considered to have a reduced expectation of privacy
in the premises.” Crosby v. State, 750 S.W.2d 768, 774 (Tex. Crim. App. 1987)
(en banc) (discussing Colonnade Catering, 397 U.S. at 72); see also Tex. Alco.
Bev. Code § 101.04(a) (“By accepting a license or permit, the holder consents
to . . . a peace officer entering the licensed premises at any time to conduct an
investigation or inspect the premises for the purpose of performing any duty
imposed by this code.”). Considering this reduced expectation of privacy, Three
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                                  No. 15-50946
Legged Monkey has not pointed to evidence showing a triable issue whether
the City conducted inspections that were unjustified by valid regulatory
motives or otherwise unreasonable. Thus, the district court properly granted
summary judgment on the Fourth Amendment claims.
         The district court also correctly dismissed Three Legged Monkey’s
substantive due process claims. The Due Process Clause protects against
arbitrary government action. See County of Sacramento v. Lewis, 523 U.S. 833,
845 (1998). Executive action violates the clause’s substantive aspect only if it
“shocks the conscience.” Id. at 846; accord Jordan v. Fisher, 813 F.3d 216, 224
(5th Cir. 2016). This is an “extremely high” standard “requiring stunning
evidence of arbitrariness and caprice that extends beyond mere violations of
state law, even violations resulting from bad faith to something more egregious
and more extreme.” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel Keys,
675 F.3d 849, 868 (5th Cir. 2012) (en banc) (quoting J.R. v. Gloria, 593 F.3d
73, 80 (1st Cir. 2010)). Three Legged Monkey’s cited evidence, at best, shows
that the City aggressively enforced valid regulations and responded to citizen
complaints, and used its leverage to encourage Three Legged Monkey’s
landlord to terminate the bar’s lease after a long string of problems—including
a fatal shooting at the bar.     This is not conscience-shocking conduct that
violates substantive due process.
         Three Legged Monkey’s claims under the Equal Protection Clause also
fail.     Usually, an equal protection plaintiff alleges that she was treated
differently due to membership in a protected class. See Engquist v. Or. Dep’t
of Agric., 553 U.S. 591, 601 (2008). Three Legged Monkey instead relies on the
doctrine that “an equal protection claim can in some circumstances be
sustained even if the plaintiff has not alleged class-based discrimination, but
instead claims that she has been irrationally singled out as a so-called ‘class of
one.’” Id. “We review such claims under a two-prong test: the plaintiff must
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                                  No. 15-50946
show that (1) he or she was intentionally treated differently from others
similarly situated and (2) there was no rational basis for the difference in
treatment.” Lindquist v. City of Pasadena, 669 F.3d 225, 233 (5th Cir. 2012).
Three Legged Monkey identifies no other bar or similar entity that presented
similar regulatory issues yet was treated more favorably by the City. Nor has
the appellant shown that the City acted without rational basis when it
increased enforcement at the bar in response to complaints, required Three
Legged Monkey to hire fire-safety guards while it worked on becoming fire-
code compliant, or took any other actions supported by record evidence.
      Even if there were a genuine issue of material fact on any of Three
Legged Monkey’s § 1983 claims, summary judgment would still be appropriate.
These claims all target the City and its officers in their official capacities. See
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (explaining that official-capacity
suits are treated as suits against the governmental entity).         There is no
vicarious municipal liability under § 1983; rather, plaintiffs “must prove that
‘action pursuant to official municipal policy’ caused their injury.” Connick v.
Thompson, 563 U.S. 51, 60 (2011) (quoting Monell, 436 U.S. at 691).
Establishing municipal liability requires proof of (1) a policymaker who can be
charged with actual or constructive knowledge of (2) an official policy or custom
that (3) was the moving force behind a constitutional violation. See Zarnow v.
City of Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010); Valle v. City of Houston,
613 F.3d 536, 541–42 (5th Cir. 2010). Though Three Legged Monkey argues in
conclusory fashion that several City employees were “policymakers” aware of
a custom of violating its rights, the appellant fails to show that the City
delegated to any of them policymaking authority—which is “more than
discretion” and “far more than the final say-so” on a given decision, Bennett v.
City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en banc).


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                                 No. 15-50946
 For these reasons, we AFFIRM the district court’s judgment. 1




 1   We need not decide whether any of Three Legged Monkey’s claims are time-barred.
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