NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 6 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GAYLE ASHFORD, No. 23-2804 D.C. No. Plaintiff - Appellant, 6:19-cv-01540-IM v.

MEMORANDUM*

CITY OF BROWNSVILLE, a municipal corporation of Oregon; SCOTT MCDOWELL, City Administrator,

Defendants - Appellees.

Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding

Submitted December 3, 2024** Portland, Oregon

Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.

Plaintiff-Appellant Gayle Ashford (“Ashford”) applied to the Planning

Commission of Defendant City of Brownsville (the “City”) for a conditional use

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). permit to expand her medical marijuana business to include recreational marijuana

sales. Defendant Scott McDowell (“McDowell”), the City Administrator, provided

the Planning Commission with legal advice, including informing the Commission

that Ashford’s application complied with all the City’s ordinances. Nonetheless,

the Planning Commission denied Ashford’s application, citing “the increased

potential risk that children and youth could be negatively impacted.” The City

Council initially affirmed the denial upon appeal. When Ashford gave notice of

her intent to appeal to Oregon’s Land Use Board of Appeals, the City Council

retracted its decision. At a subsequent hearing on the application, McDowell

issued a City Administrator Report to express the City’s frustration with Oregon’s

actions in legalizing marijuana while acknowledging that City’s ability to “address

[its] concerns” is “preempted” by state law. The City Council then granted

Ashford’s conditional use permit.

Ashford brought suit under 42 U.S.C. § 1983, seeking damages for the loss

of profits for the year she was without a permit to sell recreational marijuana,

alleging that she suffered a “class-of-one” equal protection violation. The district

court granted Defendants’ motion for summary judgment. We have jurisdiction of

this matter under 28 U.S.C. § 1291, and we affirm.

“We review a grant of summary judgment . . . de novo, applying the same

standard of review as the district court under Federal Rule of Civil Procedure 56.”

2 23-2804 Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). This rule applies

to a grant of summary judgment based on qualified immunity. See Evans v.

Skolnik, 997 F.3d 1060, 1064 (9th Cir. 2021). Under Rule 56, a court “shall grant

summary judgment 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).

1. Ashford fails to establish a class-of-one equal protection violation

because she has no evidence of a similarly situated comparator. An equal

protection claim can “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.’” Gerhardt v. Lake Cnty., 637 F.3d 1013, 1021 (9th Cir.

2010) (quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)), cert.

denied, 565 U.S. 881 (2011). To prove a class-of-one equal protection claim, the

plaintiff must show that she has been “[1] intentionally [2] treated differently from

others similarly situated and that [3] there is no rational basis for the difference in

treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).

As to the second element, a “plaintiff must be similarly situated to the proposed

comparator in all material respects.” SmileDirectClub, LLC v. Tippins, 31 F.4th

1110, 1123 (9th Cir. 2022) (“join[ing] . . . sister circuits” in adopting this test).

There must be “‘an extremely high degree of similarity between themselves and

3 23-2804 the persons to whom they compare themselves.’” Id. (quoting Clubside, Inc. v.

Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). Under this strict standard, the proper

comparator for Ashford is another recreational marijuana dispensary that applied

for a conditional use permit from the City.

Ashford, however, provides no evidence of the existence, let alone the

preferential treatment, of another recreational marijuana dispensary that requested

a conditional use permit from Defendants. Ashford concedes as much in her brief,

stating “no one else had applied for a recreational marijuana permit previously in

the tiny town of Brownsville.” Without a comparator, Ashford cannot establish

that she has been treated differently under the ordinances of the City. Because

Ashford cannot show a genuine dispute of material fact as to whether she suffered

a constitutional violation, her § 1983 claims against both the City and McDowell

fail. See Jackson v. City of Bremerton, 268 F.3d 646, 653–54 (9th Cir. 2001)

(“Neither a municipality nor a supervisor, however, can be held liable under

§ 1983 where no injury or constitutional violation has occurred.”); Lockett v. Cnty.

of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (“Monell claims [] require a

plaintiff to show an underlying constitutional violation.”).

2. Even if there was a genuine dispute as to whether there was a

constitutional violation, McDowell is entitled to qualified immunity. First, the

evidence does not show that McDowell caused the alleged constitutional violation;

4 23-2804 if anything, McDowell’s advice to the Planning Commission and City Council

warned them against denying Ashford’s application. See Leer v. Murphy, 844 F.2d

628, 633 (9th Cir. 1988) (“A person deprives another ‘of a constitutional right,

within the meaning of section 1983, if he does an affirmative act, participates in

another’s affirmative acts, or omits to perform an act which he is legally required

to do that causes the deprivation of which the plaintiff complains.’” (quoting

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) (cleaned up) (emphasis in

original)).

Second, Ashford points to no “‘existing precedent . . . [that] place[s] the

statutory or constitutional question beyond debate,’” Evans, 997 F.3d at 1066

(quoting Kisela v. Hughes, 584 U.S. 100, 104, (2018)), giving McDowell “fair

notice” that by relaying legal advice to the Planning Commission and the City

Council he was violating a constitutional right, Brosseau v. Haugen, 543 U.S. 194,

198 (2004). The two cases Ashford cites, Ae Ja Elliot-Park v. Manglona, 592 F.3d

1003 (9th Cir. 2010) and Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th

Cir. 2012), present drastically different scenarios than the one before us and thus

are not “particularized” to the facts of this case. Saved Mag. v. Spokane Police

Dep’t, 19 F.4th 1193, 1199 (9th Cir. 2021), cert. denied, 142 S. Ct. 2711 (2022).

Therefore, even if there was a constitutional violation, Ashford’s claim against

McDowell would be barred by qualified immunity.

5 23-2804

AFFIRMED.

6 23-2804