Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1990)

William E. FUNK, Jr., Plaintiff-Appellant,v.LOYALTY ENTERPRISES, LTD., Defendant-Appellee.

No. 89-16392.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 8, 1990.* Decided Dec. 28, 1990.

On Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding.



Before SKOPIL, BEEZER and FERNANDEZ, Circuit Judges.


William E. Funk brought this action to redress an alleged violation of the Fair Housing Act of 1968. Funk claims that Loyalty Enterprises deprived him of the opportunity to rent an apartment solely because he is white. The district court granted summary judgment in favor of Loyalty, concluding that Loyalty's "first come, first served" application process is racially neutral. On appeal, Funk contends that the district court erred by (1) granting summary judgment; (2) denying his motion to amend his complaint; and (3) denying him a continuance. We reject these contentions. We affirm.


The Fair Housing Act makes it unlawful for a person to "make unavailable ... a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a) (1988). A plaintiff may recover for alleged unlawful discrimination on two theories: (1) disparate treatment and (2) disparate impact or effect. See Fragante v. City and County of Honolulu, 888 F.2d 591, 594 (9th Cir. 1989) (employment discrimination), cert. denied, 110 S. Ct. 1811 (1990). Funk asserts that he should be permitted to proceed to trial on both theories. We disagree and conclude that the district court properly granted summary judgment.

Funk's disparate treatment claim fails because he did not allege that others behind him in line were offered an opportunity to fill out an application. See Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 551 (9th Cir. 1980) (plaintiff must prove that the housing or rental opportunity remained available after the alleged discriminatory event). When a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case," summary judgment is proper because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

To establish his prima facie disparate impact case, Funk was required to "show at least that the defendant's actions had a discriminatory effect." Keith v. Volpe, 858 F.2d 467, 482 (9th Cir. 1988), cert. denied, 110 S. Ct. 61 (1989). Funk contends that his proffered statistics raise an inference of discriminatory racial effect. We cannot agree. His statistics do not create an issue for trial because, even when viewed in the light most favorable to Funk, they do not establish any logical connection between the first come, first served policy and the alleged racial discrimination. See id. (discriminatory effect means that the conduct actually or predictably results in racial discrimination). Summary judgment was proper. See Celotex, 477 U.S. at 323.

The denial of leave to amend after a responsive pleading has been filed is reviewed for an abuse of discretion. Thomas-Lazear v. FBI, 851 F.2d 1202, 1206 (9th Cir. 1988). We conclude that the district court did not abuse its discretion because none of Funk's proposed amendments support any allegation that he suffered discrimination. A district court is not required to permit futile amendments. Jones v. Community Redevelopment Agency, 733 F.2d 646, 650 (9th Cir. 1984).

The district court denied Funk's third request for a discovery continuance because Funk had failed to produce probative evidence of discrimination after two prior continuances and more than a year of discovery. Furthermore, Funk never specified what information he sought to discover or how that information may have precluded summary judgment. Under these circumstances, the district court did not abuse its discretion in denying Funk's request for a third continuance. See Hawaii Carpenters' Trust Funds v. Henry, 906 F.2d 1349, 1351-52 (9th Cir. 1990) (applying abuse of discretion standard).

4. Motion to Strike and Award of Attorneys' Fees

Loyalty seeks to strike certain portions of Funk's opening brief, contending that Funk misrepresented the record and included "facts" not in the record. In light of Funk's self-representation, we decline to grant Loyalty's motion. See Michenfelder v. Sumner, 860 F.2d 328, 338 (9th Cir. 1988).

Loyalty also seeks attorneys' fees on appeal. We are empowered to award fees as a sanction for filing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912 (1988). "An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit." DeWitt v. Western Pac. R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983). Funk's appeal is not frivolous; we decline to award fees.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3