Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1991)

Albert O'Neal SCOTT, Plaintiff-Appellant,andJames W. SIMMONS, Plaintiff,v.Bryn ARMSTRONG; Richard Bryan, Defendants-Appellees.

No. 89-16485.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 14, 1990.* Decided Jan. 31, 1991.

Before JAMES R. BROWNING, KILKENNY and RYMER, Circuit Judges.


MEMORANDUM** 

Plaintiffs Albert O'Neal Scott and James W. Simmons, black inmates in the Nevada state prison system, brought this action under 42 U.S.C. § 1983 alleging that the defendants had revoked their parole in part because of their race. The district court ruled in favor of the defendants on summary judgment. Only Scott has appealed. Scott has limited his appeal to his claim that the actions of the defendants violated the Equal Protection Clause of the Fourteenth Amendment. We affirm.

A facially neutral law is not invalid under the Equal Protection Clause merely because it has a greater impact upon members of one race than another. Washington v. Davis, 426 U.S. 229, 239 (1976). In order to establish a violation of the Equal Protection Clause based upon allegations of racial discrimination, the plaintiff must establish that the defendants acted with a discriminatory intent. Id. Once the plaintiff establishes a prima facie case of racial discrimination, the burden shifts to the defendants to prove their actions were not motivated by race. Id. at 241. The plaintiff's prima facie showing may be made either by direct evidence of the defendants' discriminatory intent or by circumstantial evidence. Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266 (1977). Scott relies exclusively upon circumstantial evidence. In particular, Scott claims that two white parolees received minimal punishment for parole violations while four black parolees, including himself, received more serious sanctions for arguably less severe parole violations. In addition, Scott alleges that three black parolees accused of drug use were referred for criminal prosecution while none of seven white parolees were.

Scott asks us to infer from these instances of allegedly disparate treatment an intent on the part of the defendants to treat him more harshly because of his race. However, where a plaintiff relies solely upon instances of allegedly disparate treatment, he must establish "a clear pattern, unexplainable on grounds other than race." Arlington Heights, 429 U.S. at 266. "Absent as stark a pattern as that in Gomillion [v. Lightfoot, 364 U.S. 339 (1960) ] or Yick Wo [v. Hopkins, 118 U.S. 356 (1888) ]," a claim will fail if there is no other evidence of discriminatory intent. Id.

Scott's claim falls far below the high threshhold set in Arlington Heights. In Gomillion, the City of Tuskegee excluded 395 of 400 black citizens from its boundaries and hence from its voter registration rolls. Gomillion, 364 U.S. at 341. In Yick Wo, each of 200 Chinese applicants was denied a license to operate a laundry, while 80 non-Chinese applicants were granted such licenses. Yick Wo, 118 U.S. at 374. Here, Scott alleges only two instances in which white parolees received more favorable treatment than blacks. As the district court noted, these cases may be accounted for by "differences in age, past [criminal] records, and other background information," information which Scott did not supply in support of his claim. Scott v. Armstrong, Dist.Ct. No. CV-S-88-79-PMP at 12. We therefore agree with the district court that these two instances "are simply insufficient to raise an inference of racial discrimination." Id. The alleged instances of criminal referrals based upon drug use are of little or no probative value because of Scott's failure to provide any reliable evidence that these incidents actually occurred. Accordingly, the judgment is

AFFIRMED

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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