108 F.3d 1389
97 CJ C.A.R. 455
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
John S. WILLIAMSON; Nancy L. Williamson, Plaintiffs-Appellants,
v.
BERNALILLO COUNTY SHERIFF'S DEPARTMENT; Bernalillo County;
Dugger's Towing; R. Jones, in his capacity as a
Deputy Sheriff of Bernalillo County, and
Individually, Defendants-Appellees.
No. 96-2229.
United States Court of Appeals, Tenth Circuit.
March 24, 1997.
John and Nancy Williamson, appearing pro se, appeal from the district court's judgment entered pursuant to Fed.R.Civ.P. 54(b) dismissing their equal protection claim. They argue that the district court lacked authority to grant a post-answer Fed.R.Civ.P. 12(b)(6) motion. Defendants raised a Rule 12(b)(6) defense in their answer and subsequently filed motions. Plainly, the district court had the power to act on these pretrial motions. See Fed.R.Civ.P. 12(h)(2); Weatherhead v. Globe Int'l, 832 F.2d 1226, 1228 (10th Cir.1987).
Plaintiffs also argue that the district court erred in dismissing their equal protection claim for failure to allege an underlying racial animus because "[t]he only allegations necessary are those showing unequal treatment." Aplt. Br. at 6. We may affirm the district court on any grounds supported by the record.
We agree with the Defendants that Plaintiffs' theory is really one of selective enforcement. A decision "to prosecute may not be based on 'an unjustifiable standard such as race, religion, or other arbitrary classification.' " United States v. Armstrong, 116 S. Ct. 1480, 1486 (1996) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)); see also Futernick v. Sumpter Township, 78 F.3d 1051, 1056-57 (6th Cir.) (intentional selective enforcement based upon race, nationality, religion, gender, or to punish the exercise of a constitutional right is a sufficient basis for relief under § 1983), cert. denied, 117 S. Ct. 296 (1996). However, no allegations in the amended complaint suggest that the decision to tow the Plaintiffs' vehicle had a discriminatory effect and was motivated by a discriminatory purpose. See Armstrong, 116 S. Ct. at 1487; Cook v. City of Price, Carbon County, Utah, 566 F.2d 699, 701 (10th Cir.1977).
AFFIRMED. The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument
