FILED United States Court of Appeals Tenth Circuit
September 1, 2011 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
KANSAS PENN GAMING, LLC,
Plaintiff-Appellant, v. No. 10-3002 PAT COLLINS, JACK GARNER, RICHARD HILDEBRAND, CARL HAYES, and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CHEROKEE, KANSAS,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 2:09-CV-02149-CM-DJW)
Christopher Tayback, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, California (William D. Beil, Daniel B. Hodes, and Jeremy M. Suhr, Rouse Hendricks German May PC, Kansas City, Missouri, with him on the briefs), for Appellant.
Toby Crouse (Wendell F. Cowan, Samuel P. Logan, and James D. Oliver with him on the brief), Foulston Siefkin LLP, Overland Park, Kansas, for Appellees.
Before TYMKOVICH, McKAY, and GORSUCH, Circuit Judges.
TYMKOVICH, Circuit Judge. This case requires us to consider a class-of-one equal protection lawsuit
against a county government based on its demand that a property owner correct a
nuisance. Kansas Penn alleges that after it and Cherokee County became
involved in litigation concerning a casino development agreement, the County
health department targeted Kansas Penn for a regulatory enforcement action. In
particular, the County sent Kansas Penn a notice stating that the unkempt
condition of its property violated state and local nuisance laws and regulations,
and warning that failure to clean up the property would lead to an enforcement
action.
Although the County never brought an enforcement action against Kansas
Penn, Kansas Penn sued the County and some of its officials under 42 U.S.C. §
1983. In its complaint, Kansas Penn alleged the notice of nuisance violated its
right to equal protection by arbitrarily and maliciously singling it out for selective
enforcement.
Because we agree with the district court that Kansas Penn has failed to state
a claim for relief under the standard set forth by Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), we AFFIRM the
dismissal of the complaint.
I. Background
Kansas Penn acquired property in Cherokee County, Kansas with the aim of
developing a casino on the site. It applied for the necessary licenses to become a
-2- Lottery Gaming Facility Manager of the planned casino under the Kansas
Expanded Lottery Act, K AN . S TAT . A NN . § 74-8733, et seq. It also entered into a
pre-development agreement with the Cherokee County Board of County
Commissioners, which apparently included a number of provisions regulating the
ultimate casino project.
A year later, Kansas Penn withdrew its Facility Manager application.
Cherokee County filed suit in Kansas state court, alleging Kansas Penn had
breached the pre-development agreement. The court granted the County’s request
for an Order of Attachment securing a $25 million bidder’s fee that Kansas Penn
had deposited in connection with its application. That litigation is still pending.
After Kansas Penn withdrew its application, Cherokee County extended the
deadline for Facility Manager applications, but no additional applications were
filed. The day after the application deadline passed, Carl Hayes, an enforcement
official in the Environmental Section of the Cherokee County Health Department
(CCHD), sent a notice letter to Kansas Penn regarding its property. The notice
stated Kansas Penn’s property appeared “abandoned” and claimed an “onsite
investigation” revealed “[s]ix structures in various stages of deterioration;” the
remains of “a concrete house foundation;” “solid debris and waste,” including
“tires, barrels, appliances, concrete,” and other items; and “evidence that an
indeterminate amount of waste material [had been] disposed of by burning.”
Aplt. App. at A17 (CCHD notice). The notice went on to assert these conditions
-3- were “visually offensive” and violated five Kansas statutes and a Cherokee
County resolution relating to nuisances and abandoned property. Id. It directed
Kansas Penn to bring the property into compliance within 45 days and to submit
documentation regarding the disposal of debris. The notice warned that failure to
do so would result in prosecution by the Cherokee County Attorney.
Kansas Penn investigated the allegations in the notice by sending agents to
inspect the property. Kansas Penn claims its investigation revealed “no evidence
of burning,” and, in its opinion, the property’s condition did not “amount to a
public nuisance or otherwise violate applicable environmental regulations.” Id. at
A11–12 (Compl. ¶ 22). Kansas Penn also alleges other, unnamed Cherokee
County properties were in conditions similar to, and in some cases worse than,
those on its property.
Seeking more information, Kansas Penn made a document request to the
County and CCHD under the Kansas Open Records Act (KORA) regarding the
County’s enforcement activities. Kansas Penn asserts the County’s response
showed that: (1) Cherokee County did not receive any citizen’s complaint
regarding the conditions of Kansas Penn’s property; (2) there was no written
record of an “onsite investigation” of Kansas Penn’s property; (3) since January
2006, the CCHD had sent no other notices to landowners alleging violations of
environmental regulations; and (4) no such notices were ever sent to the prior
-4- owners of the Kansas Penn property, though it was in the same condition at the
time Kansas Penn acquired it. Aplt. App. at A9–14 (Compl. ¶¶ 11, 24–30).
Kansas Penn brought this suit in federal court, claiming defendants violated
its right to equal protection by treating it differently than other, similarly situated
property owners in Cherokee County, without a rational basis for doing so.
Kansas Penn asserts defendants sent the CCHD notice in retaliation for its
withdrawal of the Facility Manager application and the legal positions it has taken
in the breach of contract lawsuit.
In response to defendants’ motion, the district court dismissed Kansas
Penn’s complaint for failure to state a claim. Kansas Penn appeals that
disposition here.
II. Discussion
A. Standard of Review for a Motion to Dismiss
We review de novo the dismissal of a complaint for failure to state a claim.
Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007).
The Supreme Court recently clarified the standard for granting a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
Prior to these cases, courts followed the axiom that dismissal is only appropriate
where “it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Conley v. Gibson, 355
-5- U.S. 41, 45–46 (1957). Observing that this language “has been questioned,
criticized, and explained away long enough,” the Court concluded the Conley
formulation “has earned its retirement.” Twombly, 550 U.S. at 562, 563.
In its place, the Court articulated a new, further refined standard: to
withstand a motion to dismiss, a complaint must have enough allegations of fact,
taken as true, “to state a claim to relief that is plausible on its face.” Id. at 570.
The Court has explained that two working principles underlie this standard. First,
“the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Iqbal, 129 S. Ct. at 1949. Thus,
mere “labels and conclusions,” and “a formulaic recitation of the elements of a
cause of action” will not suffice; a plaintiff must offer specific factual allegations
to support each claim. Twombly, 550 U.S. at 555. And second, “only a complaint
that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 129 S.
Ct. at 1950. In other words, a plaintiff must offer sufficient factual allegations to
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 129 S. Ct. at 1950. Thus, in ruling on a
motion to dismiss, a court should disregard all conclusory statements of law and
consider whether the remaining specific factual allegations, if assumed to be true,
plausibly suggest the defendant is liable.
-6- For example, in Twombly, the Supreme Court found the plaintiffs’
allegation of parallel conduct between two companies did not plausibly suggest a
conspiracy in restraint of trade, because this behavior was as likely to have been
the result of legal, unilateral action as the product of illicit collusion. 550 U.S. at
566 (“[T]here is no reason to infer that the companies had agreed among
themselves to do what was only natural anyway.”). Since the plaintiffs failed to
make specific factual allegations plausibly suggesting an agreement between the
two companies, the complaint failed to state an antitrust claim.
Similarly, in Iqbal, the allegation that the FBI disproportionately detained
Arab Muslim men as part of its investigation of the events of September 11, 2001
was “consistent with” the claim of invidious discrimination. Iqbal, 129 S. Ct. at
1951. But the allegation did not “plausibly establish” a wrongful purpose, as the
disparate impact could equally be explained by a legitimate policy of seeking out
individuals with a connection to the known perpetrators, who belonged to an
Islamic fundamentalist group. Id.
This pleading requirement serves two purposes: “to ensure that a defendant
is placed on notice of his or her alleged misconduct sufficient to prepare an
appropriate defense,” and “to avoid ginning up the costly machinery associated
with our civil discovery regime on the basis of ‘a largely groundless claim.’”
-7- Pace v. Swerdlow, 519 F.3d 1067, 1076 (10th Cir. 2008) (Gorsuch, J., concurring)
(quoting Twombly, 550 U.S. at 557).
Since these decisions, courts have struggled to apply the new pleading
standard consistently. The primary source of confusion has been the meaning of
the term “plausibility.” According to the Supreme Court, “the plausibility
standard ... asks for more than a sheer possibility” of unlawful conduct:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Iqbal, 129 S. Ct. at 1949 (quotations omitted).
Applying this standard, we have stated that “plausibility” refers to “the
scope of the allegations in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to plausible.’” Robbins
v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008)
(quoting Twombly, 550 U.S. at 570).
The nature and specificity of the allegations required to state a plausible
claim will vary based on context. Smith v. United States, 561 F.3d 1090, 1104
-8- (10th Cir. 2009) (addressing an Eighth Amendment conspiracy); Gee v. Pacheco,
627 F.3d 1178, 1185 (10th Cir. 2010) (resolving a prisoner complaint). “The
Twombly standard may have greater bite” in the context of a § 1983 claim against
individual government actors, because “they typically include complex claims
against multiple defendants.” Robbins, 519 F.3d at 1249. “[I]t is particularly
important in such circumstances that the complaint make clear exactly who is
alleged to have done what to whom, to provide each individual with fair notice as
to the basis of the claims against him or her, as distinguished from collective
allegations against the state.” Id. at 1250.
With these pleading standards in mind, we turn to Kansas Penn’s complaint
of an equal protection claim.
B. Class-of-One Equal Protection Claim
1. Legal Framework
Equal protection jurisprudence has traditionally been concerned with
governmental action that disproportionally burdens certain classes of citizens.
But Kansas Penn does not allege that it is a member of a particular class. Rather,
it seeks to proceed on the “class-of-one” theory set forth by the Supreme Court in
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). There, the Court
recognized the existence of an equal protection claim in a zoning dispute brought
by a single plaintiff, “where the plaintiff alleges that she has been intentionally
-9- treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.” Id.
“The paradigmatic ‘class of one’ case, [] sensibly conceived, is one in
which a public official, with no conceivable basis for his action other than spite
or some other improper motive (improper because unrelated to his public duties),
comes down hard on a hapless private citizen.” Lauth v. McCollum, 424 F.3d
631, 633 (7th Cir. 2005). Successful claims have arisen from unfavorable zoning
decisions, see Olech, 528 U.S. 562, withholding of permits, see Gerhart v. Lake
County Mont., 637 F.3d 1013, 1023 (9th Cir. 2011), and selective regulatory
enforcement, see Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836, 849 (10th Cir.
2005).
Since Olech, we have refined the elements for a class-of-one claim. To
prevail on this theory, a plaintiff must first establish that others, “similarly
situated in every material respect” were treated differently. Jicarilla Apache
Nation v. Rio Arriba County, 440 F.3d 1202, 1210 (10th Cir. 2006). A plaintiff
must then show this difference in treatment was without rational basis, that is, the
government action was “irrational and abusive,” id. at 1211, and “wholly
unrelated to any legitimate state activity,” Mimics, Inc., 394 F.3d at 849
(quotation omitted). This standard is objective—if there is a reasonable
justification for the challenged action, we do not inquire into the government
actor’s actual motivations. Jicarilla Apache Nation, 440 F.3d at 1211.
-10- We have approached class-of-one claims with caution, wary of “turning
even quotidian exercises of government discretion into constitutional causes.” Id.
at 1209. In Jennings v. City of Stillwater, 383 F.3d 1199, 1210–11 (10th Cir.
2004), for example, we discussed the risks such a claim could pose to ordinary
government decision-making:
[T]he concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors. It is always possible for persons aggrieved by government action to allege, and almost always possible to produce evidence, that they were treated differently from others, with regard to everything from zoning to licensing to speeding to tax evaluation. It would become the task of federal courts and juries, then, to inquire into the grounds for differential treatment and to decide whether those grounds were sufficiently reasonable to satisfy equal protection review. This would constitute the federal courts as general-purpose second- guessers of the reasonableness of broad areas of state and local decisionmaking: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system.
These concerns are magnified with challenges to low-level government decision-
making, which often involves a great deal of discretion. The latitude afforded
police officers, IRS agents, university administrators, zoning officials, and other,
similar government actors necessarily results in a sizeable amount of random
variation in outcome. If even innocuous inconsistencies gave rise to equal
protection litigation, government action would be paralyzed.
The Supreme Court’s latest pronouncement on class-of-one theory also
reflects some of these concerns. In Engquist v. Or. Dep’t. of Agric., 553 U.S. 591
-11- (2008), the Court reconsidered class-of-one liability in the context of public
employment. Noting the zoning context of Olech, the Court reiterated that
“legislative or regulatory classification” must be applied equally and “without
respect to persons.” Id. at 602 (quotation omitted). In other words, to avoid “the
specter of arbitrary classification . . . a rational basis for the difference of
treatment” is necessary “when it appears that an individual is being singled out by
the government.” Id. The Court found it significant that Olech rested on the
existence of a clear and easily administrable standard: the government was not
“exercising discretionary authority.” Id. But a decision in the employment
context is “subjective and individualized, resting on a wide array of factors that
are difficult to articulate and quantify.” Id. at 604. Based on this distinction, the
Court concluded the class-of-one theory of equal protection is a “poor fit” in the
public employment context. 1 Id. at 605 (finding the class-of-one theory as
1 Cherokee County suggests that Engquist established a per se rule that any discretionary decision is immune from class-of-one liability. But we need not consider the outer reaches of the opinion here, since Kansas Penn’s claim fails under our existing case law. We note, however, that several circuits have read Engquist to apply more broadly than the employment context. See, e.g., United States v. Moore, 543 F.3d 891, 898–99 (7th Cir. 2008) (“[A] class-of-one equal protection challenge . . . is just as much a ‘poor fit’ in the prosecutorial discretion context as in the public employment context” because “there is no readily apparent standard against which departures can be assessed for arbitrariness.”); Flowers v. City of Minneapolis, 558 F.3d 794, 799–800 (8th Cir. 2009) (“In light of Engquist, therefore, we conclude that while a police officer’s investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim.”). But see Hanes v. Zurick, 578 F.3d 491, 494–95 (7th Cir. 2009) (declining to extend Engquist to (continued...)
-12- applied to the public employment context does not implicate the “core concern[s]
of the Equal Protection Clause,” and therefore that the “claimed right can more
readily give way to the requirements of the government as employer”).
Relying in part on these concerns, we have recognized a “substantial
burden” that plaintiffs demonstrate others “similarly situated in all material
respects” were treated differently and that there is no objectively reasonable basis
for the defendant’s action. Jicarilla Apache Nation, 440 F.3d at 1212 (“The
requirement that a plaintiff show that similarly situated persons were treated
differently is especially important in class-of-one cases.” (quotation omitted));
see also Jennings, 383 F.3d at 1214 (“It is [] imperative for the class-of-one
plaintiff to provide a specific and detailed account of the nature of the preferred
treatment of the favored class”). 2
1 (...continued) class-of-one claims against police investigators). 2 Cherokee County argues that Jennings further cabined the class-of-one claim by establishing a “material effects” test. We disagree. Jennings involved a dismissal on grounds of standing. 383 F.3d at 1199. There, we found the asserted injury—the state’s decision not to prosecute the plaintiff’s case—was not the result of the defendant police officer’s influence, but instead of the District Attorney’s independent decision not to proceed. Id. at 1213–15 (“Ultimately the decision not to prosecute was made by District Attorney Hudson, and Plaintiff does not contend that Hudson’s actions were discriminatory or wholly arbitrary.”). In other words, we did not find the plaintiff’s alleged injury was inadequate; we held only that the injury was not fairly traceable to the defendant.
-13- This understanding is consistent with the practice of other circuits. See,
e.g., Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 143 (2d Cir. 2010)
(“[P]laintiff [must] show that no rational person could regard the circumstances of
the plaintiff to differ from those of a comparator to a degree that would justify the
differential treatment on the basis of a legitimate government policy.” (quotation
omitted)); Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007) (“This
requirement demands more than lip service. It is meant to be a very significant
burden.” (quotation omitted)); Purze v. Village of Winthrop Harbor, 286 F.3d
452, 455 (7th Cir. 2002) (requiring a class-of-one plaintiff to demonstrate that the
comparable properties were “prima facie identical in all relevant respects”).
We emphasize our strict reading of this element because it addresses the
main concern with the class-of-one theory—that it will create a flood of claims in
that area of government action where discretion is high and variation is common.
This is because the requirement that comparators be “similarly situated in all
material respects” is inevitably more demanding where a difference in treatment
could legitimately be based on a number of different factors. A broader
application “could subject nearly all state regulatory decisions to constitutional
review in federal court and deny state regulators the critical discretion they need
to effectively perform their duties.” Lieb v. Hillsborough County Pub. Transp.
Comm’n, 558 F.3d 1301, 1307 (11th Cir. 2009) (quotation and citation omitted).
-14- In cases not involving judgments that are “subjective and individualized,”
the plaintiff will meet this burden easily. For example, in Olech, the defendant
village appeared to have a long-held policy of requiring a 15-foot easement of all
property owners who requested access to the municipal water supply, regardless
of difference in cost or circumstance. 528 U.S. at 563. Accordingly, when the
village demanded that the Olechs alone agree to a 33-foot easement, without
suggesting any proper reason for the deviation, it was likely that the village was
motivated by improper political animus.
But where the government actor enjoys a broader range of discretion, and
may properly base a decision on a myriad of potentially relevant variables, it is
more likely that there are “material distinctions between allegedly similarly
situated parties,” leading to “a ready supply of rational and not wholly arbitrary
reasons for differential treatment.” Jicarilla Apache Nation, 440 F.3d at 1213. In
these cases, the plaintiff must account for a wide range of characteristics in
identifying similarly situated individuals. See, e.g., id. (noting the difficulty of
making this showing in the context of property value assessment for tax purposes,
as each property has unique characteristics); Lieb, 558 F.3d at 1307 (noting the
challenged zoning decision involved “the discretionary application of a variegated
set of factors” such as “aesthetic considerations, [and] comparison with industry
standards”).
-15- In the past, this burden has not presented a significant challenge in the
pleading stage. In Olech, the Supreme Court found the plaintiffs’ complaint
successfully stated a class-of-one claim merely by asserting generally that all
other property owners had been asked to provide a 15-foot easement rather than a
33-foot easement. 528 U.S. at 565. Taking their cue from Olech, some courts
initially required nothing more than the threadbare allegation of different
treatment to similarly situated individuals to defeat a motion to dismiss. See, e.g.,
DeMuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003) (finding the plaintiffs’ assertion
that they received a different standard of police protection than typically given to
town residents was sufficient, “albeit barely”).
But in the wake of Twombly and Iqbal, and consistent with our cases
establishing a more refined analytical framework for class-of-one claims, we must
apply the plausibility standard with care. As at least one circuit has found, in
light of Iqbal, a generalized pleading in the mold of Olech is no longer sufficient
to state a class-of-one claim. Ruston v. Town Bd. for Town of Skaneateles, 610
F.3d 55 (2d Cir. 2010), cert. denied, 131 S. Ct. 824 (2010). In that case, for
example, the Second Circuit upheld the dismissal of plaintiffs’ claim against the
defendant town, for failure to set out specific examples of similarly situated
individuals and differing treatment. Id. at 59. We likewise dismissed a class-of-
one claim on similar grounds in an unpublished but representative opinion. See
Glover v. Mabrey, 384 F. App’x 763, 778 (10th Cir. 2010) (“[Plaintiff] has failed
-16- to allege, as it must, the identity or characteristics of other, similarly situated
contractors and how those similarly situated contractors were treated
differently.”). 3
With these principles in mind, and consistent with our holdings in Robbins,
519 F.3d at 1247, 1253 and Smith, 561 F.3d at 1098, plaintiffs must offer enough
specific factual allegations to “nudge[] their claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570.
2. Kansas Penn’s Complaint
Kansas Penn has not satisfied its pleading burden in this case, for several
reasons.
a. General Allegations
As an initial matter, Kansas Penn alleges the conditions on its property did
not “amount to a public nuisance or otherwise violate applicable environmental
laws or regulations.” Aplt. App. at A11–12 (Compl. ¶ 22). This allegation is not
3 The Eleventh Circuit has also adopted the requirement that class-of-one plaintiffs specifically plead facts supporting a finding that similarly situated individuals were treated differently. Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1202–08 (11th Cir. 2007). Although this rule did not originate with Twombly, but rather with now-superceded circuit precedent holding that § 1983 claims are subject to a heightened pleading requirement, the Eleventh Circuit still observes this standard for class-of-one claims. See, e.g., Leib v. Hillsborough County Public Transp. Comm’n, 558 F.3d 1301, 1307 (11th Cir. 2009) (finding the complaint was sufficiently detailed, but that the detail demonstrated the third parties were not similarly situated, and dismissing the complaint).
-17- supported by factual content, and is merely a conclusion of law. Under Twombly
and Iqbal, this is insufficient, and not entitled to a presumption of truth.
The only specific factual allegation Kansas Penn offers in the face of the
CCHD’s nuisance notice—which itself provides significant detail—is the
assertion that the property did not exhibit “evidence of burning.” Aplt. App. at
A11 (Compl. ¶ 22). While we take that as true at this stage in the proceedings,
Kansas Penn ignores the specific other problems with the condition of the
property— deteriorated buildings, the remains of a house foundation, and the
presence of solid debris and waste.
If Kansas Penn had provided factual allegations suggesting its property was
not in violation of the relevant regulations, it could be considered obvious that
CCHD treated it differently than other, similarly situated property owners. We
take for granted that there are many properties in Cherokee County that are
compliant with nuisance regulations, and also that CCHD has not sent notices to
each of them. But because this theory of the case rests entirely on a legal
conclusion about the condition of the property, we must look elsewhere for
specific factual allegations showing that Kansas Penn was treated differently than
other, similarly situated property owners. This we cannot find.
First, Kansas Penn contends the CCHD “has not sought to enforce the
environmental laws cited in the [CCHD] Letter to [Kansas Penn] against any
landowner or tenant in possession of real property in Cherokee County other than
-18- [Kansas Penn] since, at the latest, January 1, 2006.” Id. at A14 (Compl. ¶ 33). In
other words, Kansas Penn asserts that during this three-year period only it
received a nuisance notice from the CCHD.
This may suggest Kansas Penn has received different treatment than other
property owners in Cherokee County. But the fact that government action is
infrequent, or that a formerly unenforced regulation is enforced, is not enough to
create a federal cause of action. Olech requires more. Kansas Penn must also
allege that some number of the property owners receiving different treatment
were also similarly situated, thereby indicating that the enforcement action was
arbitrary or for an improper motive.
But Kansas Penn offers only conclusory allegations that other property
owners are similarly situated. The complaint alleges that “numerous parcels of
land in Cherokee County exist in conditions comparable to the Subject Property
or exhibit conditions similar to and in many cases much worse than those alleged
by the [CCHD] to exist on the Subject Property.” Id. (Compl. ¶ 35). Again, this
broad allegation is merely a “formulaic recitation” of a legal conclusion, and is
inadequate to show that other properties with ramshackle buildings and visible
debris have somehow gotten a pass from CCHD officials. As we discussed above,
after Twombly and Iqbal, it is insufficient to simply allege that other, unidentified
properties have “comparable” or “similar” conditions—the claim must be
-19- supported by specific facts plausibly suggesting the conditions on the properties
and the properties themselves are similar in all material respects.
These cursory allegations are inadequate to support any class-of-one claim.
But they are particularly problematic here, where the complaint addresses the
inherently subjective and individualized enforcement of health and safety
regulations. Unlike Olech, this is not a case where the regulatory decision is a
simple, one-dimensional inquiry, resolved with a tape measure. Rather, Kansas
Penn challenges an act of regulatory enforcement that implicates a “multiplicity
of relevant (nondiscriminatory) variables,” “from the relative culpability of the
defendants to the optimal deployment of prosecutorial resources,” making it
“correspondingly more difficult to bring an equal protection claim.” Jennings,
383 F.3d at 1214–15.
Because Kansas Penn has failed to allege facts suggesting that other
property owners were similarly situated in all material respects, the district court
did not err in dismissing the complaint.
b. Allegations Against the County Commissioners and the County
Another aspect of the complaint is infirm as well. In addition to suing
Hayes, the CCHD official who sent the notice at issue, Kansas Penn has named
the members of the Cherokee County Board of County Commissioners in their
individual and official capacities and the Cherokee County Board itself as
-20- defendants. But Kansas Penn has not sufficiently alleged liability for the
individual commissioners and the County.
“In order for liability to arise under § 1983, a defendant’s direct personal
responsibility for the claimed deprivation of a constitutional right must be
established.” Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). Thus,
“when a plaintiff sues an official under . . . § 1983 for conduct arising from his or
her superintendent responsibilities, the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates violated the
Constitution, but that the official by virtue of his own conduct and state of mind
did so as well.” Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010)
(quotation omitted); see also Iqbal, 129 S. Ct. at 1949 (“In a § 1983 suit or a
Bivens action—where masters do not answer for the torts of their servants— . . . .
each Government official, his or her title notwithstanding, is only liable for his or
her own misconduct.”).
Kansas Penn argues the following allegations show personal participation
by the individual commissioners in the alleged violation: (1) that the Board voted
to ratify Cherokee County’s breach of contract suit against Kansas Penn; (2) that
the attorney representing the County in the breach of contract suit also assisted in
preparing the County’s response to Kansas Penn’s KORA request; (3) that Kansas
Penn’s property existed in the same conditions for years, but only prompted a
response from CCHD after Kansas Penn withdrew its application to develop a
-21- casino and no other bidders emerged; and (4) that the individual commissioners
and Hayes acted in concert in sending the CCHD notice.
The first three of these allegations are plainly inadequate to establish the
commissioners were personally involved in sending the CCHD notice. The fact
that the commissioners might have felt animosity towards Kansas Penn, due to its
withdrawal of the Facility Manager application and the subsequent breach of
contract lawsuit, does not connect them to the nuisance notice. Nor does the fact
that the County used the same attorney representing it against Kansas Penn in the
contract suit to respond to Kansas Penn’s KORA demands. These allegations are
speculative, proposing that because the nuisance notice was sent after the County
sued Kansas Penn, the notice was because of the lawsuit—and concomitantly,
because the individual commissioners are involved in the lawsuit, they were
involved in sending the letter. Such post hoc ergo prompter hoc logic does not
create a conspiracy.
Only the last contention, that the commissioners actually acted in concert
with Hayes in sending the notice, is even relevant to this point. But this
allegation is precisely the sort of “naked assertion[] devoid of further factual
enhancement” that Iqbal instructs us to disregard. 129 S. Ct. at 1949. Though
Kansas Penn provides detail suggesting that Hayes sent the notice (including an
attached copy of the notice with his signature), it offers nothing to support the
-22- notion that the commissioners were involved. Kansas Penn does not even allege
that Hayes reports to the commissioners, or that they had any professional contact
whatsoever.
Kansas Penn must show some active involvement by the Board in Hayes’s
enforcement action to link them to the deprivation of a constitutional right. Thus,
even if Kansas Penn could show that Hayes acted arbitrarily, we see no basis for
linking that act to the commissioners.
As a final matter, under § 1983, a municipality is liable for the
unconstitutional acts of its employees only where the action was authorized by
official municipal policy. Milligan-Hitt v. Bd. of Trs. of Sheridan County Sch.
Dist. No. 2, 523 F.3d 1219, 1223 (10th Cir. 2008). Official policy may take the
form of “formal rules or understandings” or, alternatively, a decision by a
municipal officer who is “responsible for establishing final policy with respect to
the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469,
480, 483 (1986).
Because Kansas Penn does not allege the CCHD notice was the product of a
formal policy, the success of its claim against Cherokee County rests on whether
the notice was authorized by a final policymaker. The individual commissioners
likely qualify as final policymakers—such positions are commonly granted
authority to make discretionary decisions that are not reviewable or constrained
-23- by the decisions of others. See Milligan-Hitt, 523 F.3d at 1228. But Kansas Penn
has failed to state a claim against these defendants, and it does not even attempt
to argue that Hayes, an employee in the CCHD, is a final policymaker.
We therefore conclude the claim against Cherokee County must fail as
well.
III. Conclusion
Because Kansas Penn has failed to state a class-of-one equal protection
claim under the standard announced in Twombly and Iqbal, we AFFIRM the
district court’s dismissal of this complaint.
-24-