TN v. Chattanooga , 403 F.3d 392 ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0164a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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STATE OF TENNESSEE ex rel. WIRELESS INCOME
Plaintiff-Appellant, -
PROPERTIES, LLC,
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No. 03-6608
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v. >
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CITY OF CHATTANOOGA and WILLIAM C.
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MCDONALD, in his capacity as Administrator of
Defendants-Appellees. -
Public Works,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 02-00372—R. Allan Edgar, Chief District Judge.
Argued: August 11, 2004
Decided and Filed: April 7, 2005
Before: SILER, MOORE, and COLE, Circuit Judges.
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COUNSEL
ARGUED: James T. Williams, MILLER & MARTIN, Chattanooga, Tennessee, for Appellants.
Michael A. McMahan, NELSON, McMAHAN & NOBLETT, Chattanooga, Tennessee, for
Appellees. ON BRIEF: James T. Williams, MILLER & MARTIN, Chattanooga, Tennessee,
Camden Ballard Scearce, Jr., HUSCH & EPPENBERGER, LLC, Chattanooga, Tennessee, for
Appellants. Michael A. McMahan, NELSON, McMAHAN & NOBLETT, Chattanooga, Tennessee,
for Appellees.
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AMENDED OPINION
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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Wireless Income Properties,
LLC (“Wireless”) appeals the decision of the district court, which granted in part and denied in part
both its and Defendant-Appellee City of Chattanooga’s (“City”) respective motions for summary
judgment. Wireless, a company engaged in the construction and management of
telecommunications towers, filed applications with the City for permits to construct monopole
communication towers. The City then called for a moratorium on the issuing of such permits to
consider amendments to the pertinent zoning ordinances. After the moratorium was lifted,
1
No. 03-6608 State of Tennessee et al. v. City of Chattanooga et al. Page 2
Wireless’s applications no longer complied with the newly amended zoning ordinances. Wireless
brought suit in federal court seeking mandamus relief requiring the City to issue the permits, and
also asserting that the City had committed violations of the Telecommunications Act of 1996
(“TCA”) and 42 U.S.C. § 1983. Both sides filed motions for summary judgment, which the district
court granted in part and denied in part. Among other things, the district court ordered the City to
act on the pending applications within sixty days of the judgment.
Wireless makes three arguments on appeal: (1) the district court erred when it ordered the
City to act upon Wireless’s permit applications within sixty days of the judgment; (2) the district
court erred when it held that the City was not required to apply the zoning ordinances in effect at
the time Wireless filed its applications for building permits; and (3) the district court erred when it
held that a violation of the TCA does not give rise to a cause of action under 42 U.S.C. § 1983.
For the reasons explained below, we REVERSE the district court’s sixty-day order; instead
the district court should issue appropriate injunctive relief compelling the City to grant Wireless the
requested permits. We AFFIRM the district court’s dismissal of Wireless’s § 1983 claims in light
of the Supreme Court’s recent decision in City of Rancho Palos Verdes v. Abrams, No. 03-1601, –
S. Ct. –, 2005 WL 645209 (March 22, 2005).
I. BACKGROUND
Wireless constructs, owns, and manages telecommunications towers in the Southeastern
United States. Between December 14, 2001 and January 15, 2002, Wireless filed seven Land
Disturbing Activity Permit Applications (“applications”) with the Public Works Department of the
City, seeking approval for the construction of monopole communication towers. At the time each
application was filed, Wireless or the company’s principal, G. Larry Wells (“Wells”), either owned
or leased the underlying property, or had an agreement with the owner of the property to file the
applications. In addition, the property underlying each application conformed to the particular
zoning ordinances then in effect.1
On January 15, 2002, the Chattanooga City Council (“City Council”) passed a resolution
which declared a moratorium on the issuance of building permits for communication towers in
certain zones effective until March 13, 2002.2 The purpose of the moratorium was “to allow [for]
consideration of amendments to the provisions of the Zoning Ordinance for communication towers
in [the cited] zones by the City Council,” due to concern that the then-effective ordinances failed
sufficiently to “protect the public welfare.” Joint Appendix (“J.A.”) at 112. A second resolution
was passed on February 12, 2002, extending the moratorium until April 5, 2002.
On March 19, 2002, the City Council passed Ordinance No. 11253, which changed the
standards for the location of communication towers. The changes were not to take effect until
April 3, 2002. One of the changes was a new requirement mandating that all applications be
approved by the Board of Appeals for Variances and Special Permits (“Variance Board”).3 On
1
Each of the properties “was zoned appropriately for the construction of a communications tower of the type
and height as identified on each individual site plan attached to each of the Applications.” Appellant’s Br. at 6-7. Five
of the properties were zoned C-2 (convenience commercial), one was zoned M-3 (warehouse and wholesale), and one
was zoned M-1 (manufacturing). In addition, at the time of the filings, construction of monopole communication towers
was designated a permitted use in these zones pursuant to the City’s then-effective zoning ordinances.
2
Wireless was aware of the impending moratorium and filed the last of its two applications on January 15, 2002.
3
Wells was aware of this new requirement. In fact, he had attended and participated in some of the City Council
Legal and Legislative Committee meetings on the subject.
No. 03-6608 State of Tennessee et al. v. City of Chattanooga et al. Page 3
March 26, 2002, the City Council passed another resolution setting April 3, 2002 as the termination
date of the moratorium.
As a result of the amendments to the zoning ordinances, all of Wireless’s applications were
rendered defective in various ways such that they did not qualify for issuance of the permits.
Wireless asserts that the City never served it with any type of written documentation signaling either
the approval or denial of its applications. The City concedes that its only communication with
Wireless regarding the allegedly now-inadequate applications was a telephone call on March 20,
2002, between Perry Mayo (“Mayo”), the city employee primarily responsible for processing
applications, and Wireless. During this phone call, Mayo informed Wireless that the applications
could not be approved absent a “special exceptions permit.” Appellees’ Br. at 4; J.A. at 104-05
(Mayo Dep. at 37-38). Mayo believed that the applications were therefore “on hold” at this point,
and accordingly, took no further action. J.A. at 104-05 (Mayo Dep. at 37-38). Wireless never took
the steps necessary to cure the defects in its applications by satisfying the new requirements and
taking the applications before the Variance Board.4
On December 10, 2002, Wireless filed suit in federal court against the City and William C.
McDonald in his capacity as Administrator of Public Works, seeking mandamus relief “requiring
the City to issue the requested permits, and asserted [that] the City had engaged in certain violations
of the TCA, violations of 42 U.S.C. § 1983 and violations of Wireless’ substantive due process
rights.” Appellant’s Br. at 3. On February 6, 2003, Wireless filed a motion for partial summary
judgment on the basis of the City’s violations of the TCA, and requested a writ of mandamus that
would force the City to issue the requested permits. The City filed a cross-motion for summary
judgment on June 30, 2003, asking the court to conclude that it had committed no violations of the
TCA, and asking that Wireless’s claims be dismissed.
On October 20, 2003, the district court issued an opinion, granting in part and denying in part
both of the motions for summary judgment. The court found that the City’s failure to act upon
Wireless’s filed applications constituted a violation of the TCA and ordered the City either to grant
or to deny the applications within sixty days from the date of judgment. The court also denied
Wireless’s motion to the extent that it asked the court “to compel the City to apply zoning laws in
effect before April 3, 2002.” J.A. at 168 (D. Ct. Op. at 12). Finally, regarding Wireless’s § 1983
claim, the district court, after lengthy analysis, concluded that a violation of the TCA did not give
rise to a cause of action under § 1983. Accordingly, the court granted summary judgment in favor
of the City on this issue. Wireless filed a timely notice of appeal on November 18, 2003 from the
district court’s final judgment.
II. ANALYSIS
A. Standard of Review
This court reviews a grant of summary judgment de novo. Walls v. Amerisure Mut. Ins. Co.,
343 F.3d 881, 884 (6th Cir. 2003). “Although the denial of a motion for summary judgment is
usually an interlocutory order that is not immediately appealable, where ‘an appeal from a denial
of summary judgment is presented in tandem with a grant of summary judgment, this court has
jurisdiction to review the propriety of the district court’s denial of summary judgment.’” Id.
(quoting Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 235 (6th Cir. 2003)). While the denial
of a motion for summary judgment “on purely legal grounds” is reviewed de novo, id., a denial
based on the finding of a genuine issue of material fact is reviewed for an abuse of discretion.
4
Wells asserted in his deposition that although he knew that his pending applications would be deficient after
passage of the amendments to the ordinance, he did not amend the applications, as he thought that they would be
grandfathered, i.e., that they would be approved under the old ordinance.
No. 03-6608 State of Tennessee et al. v. City of Chattanooga et al. Page 4
McMullen v. Meijer, Inc., 355 F.3d 485, 489 (6th Cir. 2004). A grant of summary judgment is
proper when, taking the facts in the light most favorable to the non-movant, there exists no genuine
issue of material fact and “the moving party is entitled to a judgment as a matter of law.” Walls, 343
F.3d at 884. Finally, the decision of a district court to grant injunctive relief is reviewed for abuse
of discretion. United States v. City of Detroit, 329 F.3d 515, 520 (6th Cir. 2003) (en banc); New Par
v. City of Saginaw, 301 F.3d 390, 394 (6th Cir. 2002).
B. Sixty-Day Order
On appeal Wireless contends that the district court erred when it ordered the City to either
grant or deny Wireless’s permit applications within sixty days. Specifically, Wireless contends that
the proper remedy for the City’s violations of the TCA would be to require the City to issue the
requested permits. In response, the City contends that Wireless’s claim is not ripe for review under
the TCA. For the reasons set out below, we reject the City’s ripeness claim and agree with Wireless
that the district court erred in failing to require the City to issue the requested permits.
The TCA, codified at 47 U.S.C. § 332, provides in subsection (c)(7)(B) the following:
(ii) A State or local government or instrumentality thereof shall act on any
request for authorization to place, construct, or modify personal wireless
service facilities within a reasonable period of time after the request is duly
filed with such government or instrumentality, taking into account the nature
and scope of such request.
(iii) Any decision by a State or local government or instrumentality thereof to
deny a request to place, construct, or modify personal wireless service
facilities shall be in writing and supported by substantial evidence contained
in a written record.
***
(v) Any person adversely affected by any final action or failure to act by a State
or local government or any instrumentality thereof that is inconsistent with
this subparagraph may, within 30 days after such action or failure to act,
commence an action in any court of competent jurisdiction. The court shall
hear and decide such action on an expedited basis. . . .
47 U.S.C. § 332(c)(7)(B).
At the outset, the City argues that Wireless’s claim is not ripe for review. The City contends
that because Wireless has failed to comply with the requirements of the amended ordinance its
applications are still pending, and the City has yet to take final action on the applications as is
required by 47 U.S.C. § 332(c)(7)(B)(v). Accordingly, the City argues that because “no final action
ha[s] been taken, as contemplated by the TCA, prior to a valid cause of action being pursued under
that statute, . . . no legal injury could have been sustained by [Wireless] due to the City’s alleged
inaction.” Appellees’ Br. at 10.
The City relies on Nextel Partners Inc. v. Kingston Township, 286 F.3d 687 (3d Cir. 2002),
in support of its argument. However, that case is not on point. There, Nextel brought suit against
the township, alleging that the latter had violated the TCA because the ordinance in place
“prohibit[ed] the provision of personal wireless service.” Id. at 690. The plaintiff wanted to
construct a wireless communications tower on private property within the township, and had
negotiated with the township, but had never filed an application for a building permit.
On appeal, the Third Circuit construed Nextel’s complaint as asserting a claim that the
township’s failure to approve Nextel’s proposed facility violated the TCA. The court noted that the
No. 03-6608 State of Tennessee et al. v. City of Chattanooga et al. Page 5
language of 47 U.S.C. § 332(c)(7)(B)(v), which “permit[s] an aggrieved party to commence an
action to challenge a ‘failure to act’ must be read in conjunction with” 47 U.S.C. § 332(c)(7)(B)(iii),
which “requir[es] state and local governments and instrumentalities to act within a reasonable time
on ‘any request for authorization to place, construct, or modify [a] personal wireless service
facilit[y].’” Id. at 692 (citations omitted). Accordingly, the court stated that in order for
§ 332(c)(7)(B)(v) to be triggered, there must have been a request made as referenced in
§ 332(c)(7)(B)(iii). The court noted that because Nextel had never filed an application for a building
permit with the township, or made any other request for the placement or construction of a wireless
facility, the township’s failure to approve the facility did not constitute a “failure to act” within the
language of 47 U.S.C. § 332(c)(7)(B)(v). Thus, Nextel’s claims under the TCA were not actionable
in court. “In the absence of a request to approve the construction of a facility, the failure to approve
the facility is not a ‘failure to act’ within the meaning of this provision.” Id. Here, by contrast, there
is no dispute that Wireless made the appropriate request when it filed its applications with the City.
Accordingly, Nextel is distinguishable.5 Even if there was no action upon Wireless’s applications,
as the City contends, there was a “failure to act” under § 332(c)(7)(B)(v) satisfying ripeness
concerns.
The district court found that the City had violated the TCA by failing to act on Wireless’s
filed applications, as the TCA mandates that such requests be acted on “within a reasonable period
of time after the request is duly filed.” 47 U.S.C. § 332(c)(7)(B)(ii). Because the district court
concluded that the City neither denied Wireless’s applications nor took any action on the
applications during the nine months that passed after the lifting of the moratorium and before the
lawsuit was filed, the court deemed this inaction a violation of both the TCA’s timing and writing
requirements. See 47 U.S.C. § 332(c)(7)(B)(ii-iii). Citing New Par v. City of Saginaw for the
proposition “that injunctive relief is an appropriate remedy for such violations,” 301 F.3d at 399, the
district court ordered the City to act upon Wireless’s applications within sixty days of the judgment.
Under the circumstances of this case, we conclude that the City’s actions during the nine
months following the expiration of the moratorium amounted not simply to a failure to act but rather
constituted a functional denial of Wireless’s applications. As Mayo, the City employee in charge
of processing permit applications, stated in his deposition, it was not the City’s practice to comply
with the substantive and procedural mandates of the TCA when it determined that an application
ought to be denied. Instead when the City received an application which Mayo believed did not
comply with the City’s regulations, his practice was to telephone the applicant and inform the
applicant of the defects in the application. J.A. at 108 (Mayo Dep. at 52). Mayo would then hold
the application until the applicant submitted the necessary amendments to bring the application into
compliance with City regulations. J.A. at 105 (Mayo Dep. at 38). If the applicant did not amend
his application within a several-year period, Mayo would discard the faulty application. Id. A
formal denial of the permit application, as required by the TCA, would never occur.
This is exactly the procedure adhered to by the City when it reviewed Wireless’s permit
applications. Following the passage of the City’s new regulations and the expiration of the City’s
moratorium, Mayo telephoned Wireless and informed Wireless that its applications did not comply
with the new ordinance. J.A. at 104 (Mayo Dep. at 37). Mayo also informed Wireless of the
changes that would need to be made to the applications in order for permits to be granted and
indicated that no further action would be taken on the applications unless these changes were made.
J.A. at 104-105 (Mayo Dep. at 37-38). Consistent with Mayo’s statements to Wireless, no further
5
The City also relies on APT Tampa/Orlando, Inc. v. Orange County & Bd. of Comm’rs, No. 97-891-CIV-ORL-
22, 1997 WL 33320573 (M.D. Fla. Dec. 10, 1997). However, again, in that case, the court determined that in order for
there to have been a final action or failure to act such that 47 U.S.C. § 332(c)(7)(B)(v) would be implicated, the plaintiffs
in the case had to have applied for a tower permit. Absent an application for a permit, their “claims [were] not yet ripe.”
Id. at *4. Accordingly, that case has no application to the present controversy.
No. 03-6608 State of Tennessee et al. v. City of Chattanooga et al. Page 6
action was taken by the City on Wireless’s applications in the nine months following the expiration
of the moratorium.
These actions by the City constituted an informal denial of Wireless’s applications. Mayo’s
telephone call informed Wireless that its applications, absent amendment, would not be granted.
Following this telephone call, no written decision as to the status of Wireless’s applications was
provided by the City. While such an informal procedure might be sufficient in another context under
state law, such a procedure directly contravenes the substantive and procedural requirements of the
TCA.
The TCA does not preempt all authority of state or local governments over the regulation
of wireless towers. See 47 U.S.C. § 332(c)(7)(A). Instead, it merely imposes several substantive
and procedural requirements upon the state or local government’s consideration of permit
applications. See generally 47 U.S.C. § 332(c)(7)(B). Among those requirements, the TCA
mandates that the state or local governments: (1) act on any permit application “within a reasonable
period of time after” the application is filed; and (2) provide a decision on the application “in writing
and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(ii)-
(iii).
We agree with the district court’s assessment that the City’s informal decision-making
process violated the mandates of the TCA. Because we conclude, however, that an informal denial
was issued by the City, we disagree with the district court as to the provisions of the TCA that were
violated by the City’s actions. First, we conclude that City’s decision violated the TCA requirement
that a decision be “in writing.” 47 U.S.C. § 332(c)(7)(B)(ii). We have held that for a decision to
meet the “in writing” requirement, the written denial must: “(1) be separate from the written record;
(2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the
denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.”
New Par, 301 F.3d at 395-396. The City’s rejection of Wireless’s applications did not meet the “in
writing” requirement for the simple reason that no written documentation of the City’s decision was
ever provided to Wireless. Instead, Wireless merely received a telephone call indicating that its
applications were not in compliance with the City’s regulations.
Additionally we conclude, unlike the district court, that the City’s decision violated the
TCA’s requirement that a decision to deny a permit application must be “supported by substantial
evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). “Substantial evidence is
‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” New Par, 301 F.3d at 396 (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). In this case, the City provided no written record supporting its decision to
deny Wireless’s application. Given that the City failed to provide written documentation in support
of its decision, we must conclude that the City’s decision was not supported by substantial evidence,
in violation of the TCA.
Having determined that the City’s informal denial of Wireless’s applications violated the
TCA’s requirements that such decisions be “in writing” and “supported by substantial evidence,”
we must now determine what is the appropriate relief for such a violation. See 47 U.S.C.
§ 332(c)(7)(B)(v). We agree with the district court that, pursuant to New Par, “injunctive relief is
an appropriate remedy for [TCA] violations.” 301 F.3d at 399. We disagree with the district court,
however, as to the nature of appropriate injunctive relief in this case. The district court concluded
that an order requiring the City to act on Wireless’s applications within sixty days was the
appropriate remedy. This order failed to recognize that the City had already effectively denied
Wireless’s applications in violation of the TCA. The district court’s sixty-day order would therefore
only result in the inevitable occurring, namely a reaffirmance of the City’s informal decision that
the applications ought to be denied under the new regulations. See New Par, 301 F.3d at 400 (noting
No. 03-6608 State of Tennessee et al. v. City of Chattanooga et al. Page 7
that generally where the defendant has already provided a decision in violation of the TCA, remand
would serve no useful purpose). The City has recognized that under the amended zoning ordinances
Wireless’s applications are inadequate. See J.A. at 66 (Answer) (noting that “the proposed site in
each [Wireless] application did not and does not meet the setback requirements” in the amended
zoning ordinance). Given that the sixty-day order would serve no useful purpose, we conclude that
the proper remedy is injunctive relief compelling the City to grant the requested permits.
Although the TCA does not specify a particular remedy for violations of its provisions, see
47 U.S.C. § 332(c)(7)(B)(v), we have repeatedly concluded that where the defendant denied a permit
application, and that denial violated the TCA’s “in writing” and “substantial evidence” requirements,
the proper remedy is injunctive relief compelling the defendant to issue the requested permit. See,
e.g., New Par, 301 F.3d at 399-400; Telespectrum v. Pub. Serv. Comm’n, 227 F.3d 414, 419, 424
(6th Cir. 2000); see also Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1222 (11th Cir.
2002); Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Township, 181 F.3d 403, 410 (3d Cir.
1999); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999). In New Par we
recognized that an injunction requiring the issuance of a permit ordinarily is a proper remedy when
a governmental body has denied a permit without substantial evidence supporting the denial. In
support of this proposition, we cited numerous cases from various circuits, including National
Tower, LLC v. Plainville Zoning Board of Appeals, 297 F.3d 14, 21-22 (1st Cir. 2002), which stated
that:
The statutory requirements [of the TCA] that the board act within “a reasonable
period of time,” and that the reviewing court hear and decide the action “on an
expedited basis,” indicate that Congress did not intend multiple rounds of decisions
and litigation, in which a court rejects one reason and then gives the board the
opportunity, if it chooses, to proffer another. Instead, in the majority of cases the
proper remedy for a zoning board decision that violates the Act will be an order, like
the one the district court issued in this case, instructing the board to authorize
construction.
Id. Were we to affirm the district court’s order giving the City sixty days to act upon the permit
applications, we would subject the parties to further litigation. On remand the City would inevitably
again reject Wireless’s applications, albeit likely in a formal written decision. See J.A. at 66
(Answer) (The City “aver[s] that the applications as submitted would be inadequate to a obtain a
building permit under the applicable Zoning Ordinance.”). Wireless would then challenge this
decision in federal court. Given the Congressional intent embodied in the TCA to avoid multiple
rounds of litigation, we conclude that the proper remedy in this case is injunctive relief compelling
the City to grant Wireless’s permit applications.6 Given that our past cases such as New Par and
Telespectrum indicate that this is the proper remedy, we conclude that the district court abused its
discretion by failing to issue this form of injunctive relief.
6
We are mindful that such a result might be seen as a windfall for Wireless, given that the City has the power
under the TCA and Tennessee law generally to alter its regulations. See 47 U.S.C. § 332(c)(7)(A) (“Except as provided
in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless
facilities.”); Schneider v. Lazarov, 390 S.W.2d 197, 200 (Tenn. 1965) (noting that under state law the filing of a permit
application does not generally “confer[] any right in the applicant or permittee against a change in the zoning ordinance
which imposes further limitations”). The City’s fatal flaw here was that it failed to issue a written decision supported
by substantial evidence. Instead, the City effectively denied Wireless’s applications through the City’s moratoria and
Mayo’s telephone call. Under these circumstances, the City must bear the consequences of its failure to comply with
the TCA.
No. 03-6608 State of Tennessee et al. v. City of Chattanooga et al. Page 8
C. § 1983 Claim
As part of its complaint, Wireless asserted a claim pursuant to 42 U.S.C. § 1983. The district
court granted the City’s motion for summary judgment on this claim on the grounds that the TCA’s
remedial scheme was sufficiently comprehensive to preclude a § 1983 cause of action. Wireless
argues this conclusion was erroneous. The Supreme Court’s recent decision in City of Rancho Palos
Verdes v. Abrams, No. 03-1601, – S. Ct. –, 2005 WL 645209 (March 22, 2005), is dispositive of this
issue. In Rancho Palos Verdes, the Supreme Court concluded that enforcement of the TCA’s
substantive provisions “through § 1983 would distort the scheme of expedited judicial review and
limited remedies created by” the TCA’s remedial provisions. Id. at *9. The Court therefore held
“that the TCA — by providing a judicial remedy different from § 1983 in [the statute] itself —
precluded resort to § 1983.” Id. Given the Supreme Court’s conclusion that Congress foreclosed
a § 1983 cause of action for violations of the TCA, we affirm the district court’s grant of the City’s
motion for summary judgment on this claim.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s sixty-day order and REMAND
so that the district court can issue appropriate injunctive relief ordering the City to grant Wireless
the requested permits. We AFFIRM the district court’s dismissal of Wireless’s § 1983 claims in
light of the Supreme Court’s recent decision in Rancho Palos Verdes.