NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KYE S. BARKER, a single woman and DSONG LLC, a Washington limited liability 

company, 

Plaintiffs-Appellants, 

 v. 

TOWN OF RUSTON, a political 

subdivision of the State of Washington; et 

al., 

Defendants-Appellees.

No. 16-35395 

D.C. No. 3:14-cv-05589-BHS 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted April 11, 2018

Seattle, Washington

Before: HAWKINS and GRABER, Circuit Judges, and TEILBORG,** District 

Judge.

Kye S. Barker and D-Song LLC, owners of the Unicorn Sports Bar (“the 

Unicorn”), appeal the grant of summary judgment to the Town of Ruston, the 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable James A. Teilborg, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

APR 30 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Ruston Police Department (“RPD”), Bruce Hopkins, Jeremy Kunkel, James 

Kaylor, Victor Celis, and John Doe 1-5 (“Appellees”) on Barker’s 42 U.S.C. 

§ 1983 claims.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Barker’s Fourth Amendment claim fails because none of Appellees’ alleged 

conduct resulted in a search or a seizure. There was no search because RPD 

officers did no more than “examine[] the area[s] [in and around the Unicorn] in the 

same way as might be expected of any other person.” Zimmerman v. City of 

Oakland, 255 F.3d 734, 740 (9th Cir. 2001). There was no seizure because nothing 

in the record establishes that RPD officers meaningfully interfered with Barker’s

possessory interest in the Unicorn. See United States v. Jacobsen, 466 U.S. 109, 

113 (1984).

Barker’s equal protection claim is likewise unavailing because the record 

does not show that the Unicorn was treated differently than similarly situated bars. 

See United States v. Armstrong, 517 U.S. 456, 465 (1996) (applying the “similarly 

situated” test in the racial discrimination context); N. Pacifica LLC v. City of 

 

1 On appeal, both Barker and D-Song LLC allege violations of § 1983; 

however, only Barker asserted such claims below. Barker v. Town of Ruston, No. 

C14-5589 BHS, 2016 WL 1572546, at *1 (W.D. Wash. Apr. 19, 2016). 

Accordingly, D-Song LLC has waived its § 1983 claims. See Taylor v. Sentry Life 

Ins. Co., 729 F.2d 652, 655–56 (9th Cir. 1984) (per curiam) (holding that, except in 

“exceptional circumstances,” claims not raised before the district court are waived 

on appeal (first citing Rothman v. Hosp. Serv. of S. Cal., 510 F.2d 956, 960 (9th 

Cir. 1975); and then citing Gard v. United States, 594 F.2d 1230, 1235 (9th Cir. 

1979))).
3

Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (applying the “similarly situated” test 

in the class-of-one context).

Furthermore, Barker’s substantive due process claim is unsuccessful because 

there is no evidence in the record showing that Barker was completely prohibited 

from pursuing her desired profession. See Conn v. Gabbert, 526 U.S. 286, 292 

(1999); Guzman v. Shewry, 552 F.3d 941, 954 (9th Cir. 2009).

Similarly, Barker’s procedural due process claim is fruitless because no 

evidence in the record supports the finding of a due process violation. See 

Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th 

Cir. 1998).

Finally, there can be no municipal liability under Monell v. Department of 

Social Services of New York, 436 U.S. 658 (1978) because the underlying 

constitutional claims were appropriately dismissed. City of Los Angeles v. Heller, 

475 U.S. 796, 799 (1986) (per curiam).

AFFIRMED.