July 18, 2019

Tenth Circuit: Property Nuisance Claim Not Arbitrary and Challenge Failed to State a Claim Against Final Policymakers

The Tenth Circuit Court of Appeals issued its opinion in Kansas Penn Gaming, LLC v. Collins on Thursday, September 1, 2011.

The Tenth Circuit affirmed the district court’s dismissal of the complaint. Petitioner alleges that “after it and Cherokee County became involved in litigation concerning a casino development agreement, the County health department targeted [Petitioner] for a regulatory enforcement action”; the County sent Petitioner a notice stating that the unkempt condition of its property violated state and local nuisance laws and regulations, and warned that failure to clean up the property would lead to an enforcement action. No enforcement action was ever brought, but Petitioner sued the County and some of its officials under 42 U.S.C. § 1983, alleging that the notice of nuisance violated its right to equal protection by arbitrarily and maliciously singling it out for selective enforcement.

However, the Court agreed with the district court that Petitioner 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). Petitioner failed to allege facts suggesting that other property owners were similarly situated in all material respects; “it is insufficient to simply allege that other, unidentified properties have ‘comparable’ or ‘similar’ conditions—the claim must be supported by specific facts plausibly suggesting the conditions on the properties and the properties themselves are similar in all material respects.” Also, Petitioner failed to state a claim against the final policymaking commissioners, which is necessary to succeed in its class-of-one equal protection claim.

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