Midee Foodservices, Inc., an Idaho Corporation, Plaintiff-appellant, v. City of Boise, Defendant-appellee, 116 F.3d 1486 (9th Cir. 1997)

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US Court of Appeals for the Ninth Circuit - 116 F.3d 1486 (9th Cir. 1997) Submitted June 17, 1997. **Decided June 23, 1997

Appeal from the United States District Court for the District of Idaho, No. CV-95-00183-MHW; Mikel H. Williams, Magistrate Judge, Presiding.

Before: GOODWIN, SCHROEDER, and TASHIMA, Circuit Judges.


MEMORANDUM* 

Midee Foodservices, Inc. ("Midee") appeals the district court's summary judgment in favor of the City of Boise ("City") in Midee' § 42 U.S.C. § 1983 action. Midee alleges that the City's denial of its application for a conditional use permit for a drive-up window at its proposed Burger King Restaurant violated its substantive due process and equal protection rights. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 636(c) (3), and we affirm.

We review de novo a grant of summary judgment. See McMillan v. Goleta Water District, 792 F.2d 1453, 1456 (9th Cir. 1986). We may affirm the district court based on any reason supported by the record. See Welch v. Fritz, 909 F.2d 1330, 1331 (9th Cir. 1990).

Midee's allegation that the City violated its due process rights lacks merit because the City's decision was not arbitrary and capricious. See Wedges/Ledges of Calif., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 66 (9th Cir. 1994). Midee's allegation that the City violated its equal protection rights lacks merit because the City had a rational basis for denying the permit. See id. at 67.

AFFIRMED.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4. Accordingly, appellant's request for oral argument is denied

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3