Kerima Lewis v. City of Berkeley , 387 F. App'x 796 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KERIMA LEWIS, No. 09-16126
Plaintiff - Appellant, D.C. No. 4:08-cv-05089-WDB
v.
MEMORANDUM *
CITY OF BERKELEY,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Wayne D. Brazil, Magistrate Judge, Presiding
Argued and Submitted April 16, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**
Plaintiff-Appellant Kerima Lewis appeals the district court’s dismissal of her
complaint alleging violations of the Equal Protection Clause of the Fourteenth
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Amendment and its counterpart in the California Constitution, see Cal. Const. art.
I, § 7. Lewis argues the district court should not have dismissed her complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
The district court properly determined that Lewis’s complaint lacked
sufficient factual allegations to state a claim for a violation of equal protection.
The allegations of discriminatory animus in Lewis’s complaint are all legal
conclusions couched as factual allegations that the district court was not bound to
accept as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The court properly took judicial notice of public records to establish that the
City amended its zoning ordinance in 1998, revoked the U-Haul facility’s use
permit in 2007, and stated legitimate, race-neutral reasons for doing so. See Lee v.
City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). The court did not
violate Federal Rule of Evidence 802. The City did not offer the resolution to
prove the truth of the statements it contained concerning complaints that had been
made against the U-Haul facility. The City offered the resolution only to show that
it had stated legitimate reasons for revoking the U-Haul facility’s use permit. See
Las Vegas Nightlife, Inc. v. Clark County, 38 F.3d 1100, 1102 (9th Cir. 1994).
AFFIRMED.
2