Bollfrass et al v. Phoenix, City of et al

Filing 199

ORDER granting ( 163 Sealed/ 164 Unsealed) Motion for Summary Judgment. FURTHER ORDERED denying 165 Motion for Partial Summary Judgment. FURTHER ORDERED THAT the Clerk of Court shall enter judgment in favor of Defendants on all claims and close this case. Signed by Judge Michael T Liburdi on 9/16/22. (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gerald Bollfrass, et al.,

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Plaintiffs,

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v.

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City of Phoenix, et al.,

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No. CV-19-04014-PHX-MTL
ORDER

Defendants.

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Before the Court are Defendants City of Phoenix, City of Phoenix Housing

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Department (“PHD”), Cindy Stotler, Keon Montgomery, William Emmerson, Veronica

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Grittman, Angela Hogan, Dina Fernandez, James Navarette, and Julie Bosshart’s Motion

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for Summary Judgment (Doc. 163) and Plaintiffs Gerald Bollfrass and Frank Czyzewski’s

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Motion for Partial Summary Judgment (Doc. 165.) For the reasons expressed herein, the

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Court grants Defendants’ Motion for Summary Judgment in its entirety and denies

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Plaintiff’s Motion for Partial Summary Judgment in its entirety.

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I.

PROCEDURAL HISTORY

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On May 16, 2019, Plaintiffs filed a complaint in Arizona Superior Court asserting

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claims under 42 U.S.C. §§ 1983, 3604, 12132, and 1437. (Doc. 1 at 2.) Defendants removed

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the case to this Court, asserting jurisdiction under 28 U.S.C. §§ 1331 and 1367(a). (Doc.

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1.)

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Plaintiffs filed a First Amended Complaint on June 24, 2019 (Doc. 18), and a

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Motion for Preliminary Injunction on July 29, 2019 (Doc. 22.) On September 3, 2019,

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Plaintiffs’ Motion for Preliminary Injunction was denied. (Doc. 37.) On December 19,

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2019, Plaintiffs filed a Second Amended Complaint. (Doc. 57.) On January 9, 2020,

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Defendants City of Phoenix, PHD, Fernandez, Grittman, Bosshart, Navarette, Hogan,

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Montgomery, and Emmerson filed a Motion to Dismiss (Doc. 66) and on February 21,

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2020, Defendants Stotler, McAbee, Martin, and the various Doe Spouse Defendants filed

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a separate Motion to Dismiss (Doc. 80.) The Court granted in part and denied in part both

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of those motions, dismissing some of Plaintiffs claims and Defendants McAbee, Martin,

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and Magaard. (Doc. 90.)

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Plaintiffs filed a Third Amended Complaint (“TAC”), which is the operative

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complaint. (Doc. 136.) In response, Defendants filed a motion to dismiss Counts Four and

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Seven, and Defendant Emmerson’s wife. (Doc. 140.) The Court granted that motion in its

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entirety. (Doc. 143.) The remainder of Plaintiffs’ TAC is before the Court on summary

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judgment.

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II.

FACTUAL BACKGROUND

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The facts summarized below, and detailed throughout this Order, are taken from the

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parties’ summary judgment submissions and other documents in the record. The facts are

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undisputed, unless otherwise noted.1

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Plaintiffs Czyzewski and Bollfrass are residents at Fillmore Gardens, a federally

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funded public housing project owned and operated by the City of Phoenix and PHD. (Doc.

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136, ¶ 2.) Fillmore Gardens receives federal funding through participation in the United

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States Department of Housing and Urban Development’s (“HUD”) Federal Public Housing

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Program. (Id.)

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In response to Defendants’ factual summary contained in their Motion, Plaintiff objects
to several of Defendants’ factual assertions as irrelevant, hearsay, not supported by
admissible evidence, or not supported by any evidence at all. (Doc. 182 at 2–3.) In reply,
Defendant responds to each objection, and reasserts their objection in their response to
Plaintiff’s Partial Motion for Summary Judgment that Plaintiffs’ briefing is equally replete
with objectionable citations to inadmissible hearsay evidence and mischaracterizations of
the cited evidence. (Doc. 184 at 7–8.) Accordingly, the Court will not rely on any of either
party’s objectionable evidence in deciding whether either party is entitled to summary
judgment. See Fed. R. Civ. P. 56; Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. 2008)
(“When an affidavit contains an out-of-court statement offered to prove the truth of the
statement that is inadmissible hearsay, the statement may not be used to support or defeat
a motion for summary judgment.”).
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The Individual Defendants each had respective roles within PHD at all relevant

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times throughout the events alleged in this case as follows: Defendant Stotler was a PHD

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Director; Defendant Montgomery was a PHD Deputy Director; Defendant Emmerson was

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a PHD Deputy Housing Director until August of 2017; Defendant Grittman was a PHD

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Housing Manager; Defendant Fernandez was a PHD Housing Supervisor; Defendant

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Hogan was a PHD Housing Supervisor or Deputy Director; Defendant Navarette was a

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PHD Property Manager; Defendant Bosshart was a PHD Casework Supervisor and

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Program Administrator. (Id. ¶¶ 13–20.)

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As summarized in an earlier order, the gist of the Plaintiffs’ claims is that they were

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subjected to Defendants’ disparate treatment and retaliation for their community activism

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at Fillmore Gardens, including, as alleged in the TAC, Plaintiff Czyzewski’s termination

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from his Resident Assistant (“RA”) position, multiple lease violation notices, two notices

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of eviction, an arrest, a financial audit of Plaintiffs’, and the dissolution of the Fillmore

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Gardens Resident Council (“RC”) that they were active members of. (See Doc. 90 at 2–7.)

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Throughout their tenure at Fillmore Gardens, Plaintiffs’ were involved in two

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physical altercations that resulted in police involvement (Doc. 163-2 at 277–81; Doc. 182-

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1 at 135–207), sent numerous emails to PHD staff regarding confrontations with other

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tenants (Doc. 163-2 at 43–44; Doc. 163-3 at 62, 64, 66, 68, 70–71), received two lease

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violation notices for harassing behavior of other tenants and PHD staff (Doc. 163-2 at 43–

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44, 312–13, 485; Doc. 163-3 at 70–71), failed to pay their rent on time (Doc. 163-2 at 423–

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25; Doc. 163-4 at 31), and failed to report additional income as required by their lease

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(Doc. 163-4 at 36–40.) One of those altercations disrupted a PHD manager’s meeting and

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resulted in Plaintiff Czyzewski’s arrest for disorderly conduct after engaging in hostile

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behavior toward Donna Magaard, another Fillmore Gardens resident. (Doc. 163-2 at 58–

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83, 315, 470–73; Doc. 182-1 at 135–207.) Plaintiff Bollfrass used his position as RC

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President to attempt to evict another tenant that he did not get along with. (Doc. 163-2 at

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485; Doc. 163-3 at 79.)

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Due to the complex nature of the timeline in this case and the several separate events

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and claims, the Court will recount the additional relevant facts in the below analysis, as

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necessary.

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III.

LEGAL STANDARD

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A.

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Rule 56 of the Federal Rules of Civil Procedure governs motions for summary

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judgment. The court may grant summary judgment when the movant shows that (1) there

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are no genuine issues of material fact; and (2) when the evidence is viewed in the light

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most favorable to the non-moving party, the movant is entitled to a favorable judgment as

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a matter of law. Fed. R. Civ. P. 56(a); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,

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157 (1970). Material facts are those which might affect the outcome of the suit. Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact does not arise solely from

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allegations in pleadings; the non-moving party also must produce affirmative evidence to

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rebut the moving party’s motion. Id. at 257. When deciding a defendant’s motion for

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summary judgment, the “mere existence of a scintilla of evidence in support of the

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plaintiff’s position will be insufficient; there must be evidence on which the jury could

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reasonably find for the plaintiff” to deny a defendant’s motion. Id. at 252.

Summary Judgment

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The facts the Court relies on herein are either undisputed or recounted in the light

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most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th

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Cir. 2004). The Court notes that while the non-moving party is entitled to all reasonable

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inferences in its favor on summary judgment, the Court will not apply such inferences that

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clearly contradict the weight of the evidence in the record. See Scott v. Harris, 550 U.S.

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372, 380 (2007).

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B.

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A plaintiff asserting a claim for relief under § 1983 must prove that: “(1) the conduct

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complained of was committed by a person acting under color of state law; and (2) the

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conduct deprived the plaintiff of a constitutional right.” L. W. v. Grubbs, 974 F.2d 119, 120

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(9th Cir. 1992). “Section 1983 does not create any substantive rights, but is instead a

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vehicle by which plaintiffs can bring federal constitutional and statutory challenges to

Section 1983 Claims

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actions by state and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir.

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2006). State officials or municipalities are liable for deprivations of life, liberty, or property

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that rise to the level of a “constitutional tort” under the Due Process Clause of the

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Fourteenth Amendment. Johnson v. City of Seattle, 474 F.3d 634, 638 (9th Cir. 2007)

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(citing Monell v. Dep’t of Soc. Serv. Of the City of New York, 436 U.S. 658, 691 (1978)).

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IV.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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A.

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Defendants assert that they are entitled to qualified immunity on Plaintiff’s Due

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Process and First Amendment claims. (Doc. 163 at 38–40.) Qualified immunity protects

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“government officials performing discretionary functions . . . from liability for civil

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damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Harlow v.

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Fitzgerald, 457 U.S. 800, 818 (1982). “An official sued under § 1983 is entitled to qualified

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immunity unless it is shown that the official violated a statutory or constitutional right that

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was clearly established at the time of the challenged conduct.” Plumhoff v. Rickard, 572

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U.S. 765, 779 (2014). While “[q]ualified immunity shields federal and state officials from

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money damages[,]” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011), it is “an immunity from

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suit rather than a mere defense to liability[,]” Pearson v. Callahan, 555 U.S. 223, 231

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(2009). Consequently, it “is effectively lost if a case is erroneously permitted to go to trial.”

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Pearson, 555 U.S. at 231.

Qualified Immunity

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A district court evaluating whether a government official is entitled to qualified

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immunity at the summary judgment stage asks two questions: (1) whether, taking the facts

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in the light most favorable to the nonmoving party, the official’s conduct violated a federal

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statutory or constitutional right, and (2) whether the right was clearly established at the

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time of the alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 200–01 (2001). Either

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question may be addressed first, and if the answer to either is “no,” then the officials cannot

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be held liable for damages. See Pearson, 555 U.S. at 236. With respect to the second prong,

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“[b]ecause the focus is on whether the [official] had fair notice that her conduct was

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unlawful, reasonableness is judged against the backdrop of the law at the time of the

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conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). For this reason, the Supreme

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Court has emphasized the importance of ensuring the evidence is reviewed through the

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appropriate lens when deciding the “clearly established prong” on summary judgment.

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Tolan v. Cotton, 572 U.S. 650, 657–58 (2014). “The plaintiff bears the burden of proof that

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the right allegedly violated was clearly established at the time of the alleged misconduct.”

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Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

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The Supreme Court has “repeatedly stressed that courts must not ‘define clearly

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established law at a high level of generality, since doing so avoids the crucial question

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whether the official acted reasonably in the particular circumstances that he or she faced.’”

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District of Columbia v. Wesby, --- U.S. ---, 138 S. Ct. 577, 590 (2018) (quoting Plumhoff,

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572 U.S. at 779). Thus, the second step in the qualified immunity analysis “must be

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undertaken in light of the specific context of the case, not as a broad general proposition.”

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Saucier, 533 U.S. at 201. “The ‘clearly established’ standard . . . requires that the legal

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principle clearly prohibit the [official’s] conduct in the particular circumstances before

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him. The rule’s contours must be so well defined that it is ‘clear to a reasonable [official]

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that his conduct was unlawful in the situation he confronted.’” Wesby, --- U.S. ---, 138 S.

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Ct. at 590 (quoting Saucier, 533 U.S. at 202). “This requires a high degree of specificity.”

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Id. (internal quotation omitted). “This demanding standard protects all but the plainly

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incompetent or those who knowingly violate the law.” Id. (quoting Malley v. Briggs, 475

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U.S. 335, 341 (1986)).

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Waiver

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Plaintiff argues that Defendants waived any qualified immunity defense because

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they failed to seek resolution on this issue for more than two years since first mentioning

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the issue in an August 2020 Joint Proposed Case Management Report. (Doc. 182 at 14–

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15.) Defendants respond that Plaintiffs do not cite any cases to support their position that

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waiting to raise qualified immunity until the summary judgment stage results in waiver of

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that defense. (Doc. 184 at 3–4.) Regardless, without a showing that Plaintiffs have suffered

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any prejudice, “an affirmative defense may be raised for the first time at summary

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judgment.” Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993). Plaintiffs do not

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claim prejudice in their pleadings, nor is any apparent from the record. Thus, the Court

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finds that Defendants did not waive their qualified immunity defense and the Court can

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properly consider it on summary judgment.

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2.

Due Process

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Plaintiffs bring a claim for violation of Plaintiff Czyzewski’s Fourteenth

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Amendment right to due process after he was terminated from his RA position. (Doc. 136,

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¶¶ 212, 216.) As discussed in more detail in Part IV.B, infra, Plaintiffs fail to raise a

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disputed issue of fact as to whether Plaintiff Czyzewski had a protected property interest

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in his employment such that he was entitled to process before termination. Instead, the

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Court finds that Plaintiff Czyzewski was employed at-will for the duration of his

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employment as an RA, meaning that he could be terminated without notice for any reason

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or no reason at all.

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Defendants argue that they are entitled to qualified immunity on Plaintiffs’ due

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process claim because the Ninth Circuit recently held that “enunciating generalized due

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process principles” is “inadequate to clearly establish a right to the particular procedural

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protections” in the absence of case law establishing rights in an analogous factual context.

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(Doc. 163 at 38) (citing Shooter v. Arizona, 4 F.4th 955, 962 (9th Cir. July 22, 2021)).

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Defendants contend that Plaintiffs have failed to meet their burden to find a case clearly

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establishing the right to due process under similar circumstances. (Id.)

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In response, Plaintiffs only state that the parties dispute whether the Pickering test

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applies to Plaintiffs’ due process claim because Plaintiff Czyzewski was employed by a

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private company contracted to provide governmental services. (Doc. 182 at 15.) However,

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it is well-established that where the government contracts with private companies to hire

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independent contractors to perform government work, such persons are considered public

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employees for the purposes of establishing a violation of their constitutional rights by the

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government. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1101 (9th Cir. 2011).

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Plaintiffs do not address Defendants’ arguments on the “clearly established” prong of the

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qualified immunity test or explain how the Pickering test for First Amendment retaliation

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is relevant to Defendants’ qualified immunity defense to Plaintiffs’ due process claim.

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The parties do not cite to any authority, and the Court is not independently aware of

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any, that stands for the proposition that an at-will public employee has a due process right

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to notice and a hearing prior to being terminated. Indeed, as discussed in Part IV.B, infra,

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the inverse is true. See Haglin v. City of Algona, 42 Fed. Appx. 55, 57 (9th Cir. 2002) (“If

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employment is at-will, then the claimant has no property interest in the job.”). Defendants

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did not have fair notice that firing Plaintiff Czyzewski from an explicitly at-will

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employment relationship for cause would be unlawful in view of the essential requirement

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that due process only applies to protected property interests. See Portman v. County of

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Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993) (explaining that a § 1983 claim must

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establish a constitutionally protected liberty or property interest).

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Thus, the Court agrees with Defendants that Plaintiffs have failed to meet their

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burden to show that the particular right alleged here, due process prior to termination of an

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at-will employee, was clearly established by the law prior to Defendants’ actions.

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3.

First Amendment

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Defendants argue that they are entitled to qualified immunity on Plaintiffs’ First

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Amendment claims because there are no clearly established rights regarding either

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protected public employee speech or “in the context of the administration and provision of

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public housing.” (Doc. 163 at 39–40.) Plaintiffs respond that qualified immunity is not

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appropriate, citing to two state court cases and a United States Supreme Court concurrence

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that Plaintiffs contend demonstrate a clearly established right to the freedom of association

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for public housing tenants. (Doc. 182 at 16–17.)

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i.

Employment Termination

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Plaintiffs bring a First Amendment retaliation claim against Defendants, alleging

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that Plaintiff Czyzewski was terminated from his RA position in retaliation for protected

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speech that he and Plaintiff Bollfrass made prior to his termination. (Doc. 136, ¶¶ 43–68.)

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Defendants argue that First Amendment retaliation claims made by government

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employees on adverse employment actions are so fact intensive that the law is not clearly

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established here, if ever. (Doc. 163 at 39) (citing Lytle v. Wondrash, 182 F.3d 1083, 1088

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(1999)). Plaintiffs briefing fails to respond to this argument or discuss whether Plaintiff

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Czyzewski’s termination was in violation of a clearly established constitutional right. (See

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Doc. 182.)

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In Lytle, the Ninth Circuit stated:

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Because Pickering’s analysis as to whether a public
employee’s expression is constitutionally protected requires a
fact-intensive, context-specific balancing of competing
interests, the law regarding such claims will rarely, if ever, be
sufficiently clearly established to preclude qualified immunity
under Harlow and its progeny. Thus, we must decide whether
the outcome of the Pickering balancing test so clearly favored
Lytle that it would have been patently unreasonable for the
Appellants to conclude that their actions were lawful.

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182 F.3d at 1088 (citations and quotations omitted).

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Because the burden is on Plaintiffs to show that the law was clearly established but

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Plaintiffs failed to carry that burden, and because, as discussed below in Part IV.C.1, infra,

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the Court finds that the Pickering balancing test favors Defendants, the Court grants

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summary judgment in Defendants’ favor on the issue of qualified immunity to Plaintiffs’

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First Amendment retaliatory termination claim.
ii.

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Remaining First Amendment claims

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Plaintiffs also bring First Amendment claims alleging that Defendants retaliated

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against Plaintiffs for engaging in protected speech and for participating in RC activism.

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(Doc. 136, ¶¶ 207–31.) Plaintiffs cite certain cases that they contend clearly establish rights

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(Doc. 182 at 16–17), while Defendants argue that those cases are inapposite. (Doc. 184 at

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2–3.)

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As discussed above, “[t]he ‘clearly established’ standard . . . requires that the legal

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principle clearly prohibit the [official’s] conduct in the particular circumstances before

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him. The rule’s contours must be so well defined that it is ‘clear to a reasonable [official]

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that his conduct was unlawful in the situation he confronted.’” Wesby, --- U.S. ---, 138 S.

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Ct. at 590 (quoting Saucier, 533 U.S. at 202). And the Supreme Court has repeatedly

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cautioned against defining a clearly established law “at a high level of generality.” Id. It is

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Plaintiffs’ burden to prove that “the right allegedly violated was clearly established at the

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time of the alleged misconduct.” Romero, 931 F.2d at 627.

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Plaintiffs appear to assert two distinct rights. First, Plaintiffs assert the right to be

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free from retaliation for speech that includes complaints about the conditions of their living

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arrangements as tenants in public housing. Second, Plaintiffs assert their right to be free

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from retaliation for engaging in organized group efforts to petition the public housing

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department regarding the same. The Court examines Plaintiffs’ cited cases to determine

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whether these rights were clearly established at the time they were allegedly violated.

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Plaintiffs first point to Justice Douglas’s concurrence in Thorpe v. Hous. Auth. of

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City of Durham, 386 U.S. 670 (1967). In Thorpe, the housing authority brought an

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ejectment proceeding against a tenant in federal housing after she refused to vacate the

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premises following a notice of termination. 386 U.S. at 671. The housing authority issued

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the tenant a 20-day notice of termination the day after she was elected as president of the

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housing’s tenants’ organization but refused to provide a reason for the lease termination.

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Id. The tenant argued that she was “constitutionally entitled to notice setting forth the

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reasons for termination of her lease” and a related hearing, and that her eviction would be

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improper because it was based on her participation in the tenants’ organization. Id. at 672.

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The Supreme Court did not reach the tenant’s arguments because, after her proceedings

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were initiated, HUD issued a directive requiring local housing authorities to provide tenants

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with a hearing and reasons for eviction prior to lease termination. Id. The Court vacated

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and remanded the case for further proceedings considering the eviction procedures

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established in HUD’s directive. Id. at 673.

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In his concurrence, Justice Douglas states “[t]he recipient of a government benefit,

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be it a tax exemption, unemployment compensation, public employment, a license to

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practice law, or a home in a public housing project, cannot be made to forfeit the benefit

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because he exercises a constitutional right.” Id. at 678–79 (citations omitted). Comparing

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the right to public housing to the right to a tax exemption, which the Supreme Court

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recognized in Speiser v. Randall, 357 U.S. 513 (1958), Justice Douglas states:

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[W]e recognized that “[t]o deny an exemption to claimants
who engage in certain forms of speech is in effect to penalize
them for such speech. Its deterrent effect is the same as if the
State were to fine them for this speech. The appellees are
plainly mistaken in their argument that, because a tax
exemption is a ‘privilege’ or ‘bounty,’ its denial may not
infringe speech.” No more can a tenant in a public housing
project be evicted for the exercise of her right of association, a
right protected by the First and Fourteenth Amendments.

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Thorpe, 386 U.S. at 679 (Douglas, J., concurring).

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Justice Douglas’s review of the case law suggests that a slightly broader right, that

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“the recipient of a government benefit . . . cannot be made to forfeit the benefit because he

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exercises a constitutional right” is clearly established. However, given the directive that

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the law must not be defined at a high level of generality, this Court will look to the

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additional state case law cited by Plaintiffs. “Given this absence of binding precedent, we

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may look to decisions from the other circuits to determine whether they reflect a consensus

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of courts that can be said to clearly establish the relevant law.” Shooter, 4 F.4th at 963

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(citations and quotations omitted).

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Plaintiffs have identified two state court decisions, neither of which squarely

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address the merits of the claims here, but both of which are instructive. In Lawson, the

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Wisconsin Supreme Court addressed whether the state was allowed to adopt a resolution

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that prohibited anyone “who is a member of an organization designated as subversive by

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the Attorney General” from securing residence in federally funded public housing. Lawson

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v. Hous. Auth. of City of Milwaukee, 70 N.W.2d 605, 611 (Wis. 1955). The Lawson court

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held that “the possible harm which might result in suppressing the freedoms of the First

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[A]mendment outweigh any threatened evil posed by the occupation by members of

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subversive organizations of units in federally aided housing projects.” Id. at 615.

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In Carrera, the Texas Supreme Court declined to find that a housing authority

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supervisor and director were entitled to qualified immunity in an action by officers of a

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tenants’ association alleging that they were deprived of their First Amendment rights of

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free speech, organization, and association. Carrera v. Yepez, 6 S.W.3d 654, 670 (Tex.

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1999). In determining whether the asserted rights in the action were clearly established, the

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Carrera court held that “[i]n our view, the issue is whether Appellants’ conduct in

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beginning eviction proceedings, and disenfranchising the tenants of their elected

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representatives allegedly in retaliation for constitutionally protected activity was

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objectively reasonable in light of clearly established law. We conclude that it was not.” Id.

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at 669. In so holding, the Carrera court noted that “[f]or more than thirty years, the rights

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of tenants in public housing projects to the fundamental freedoms of speech and association

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have been held sacrosanct.” Id. (citing Thorpe, 386 U.S. at 679 and Lawson, 270 Wis. at

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287–88).

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Although none of these excerpts are binding, together these cases suggest that courts

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have reached a consensus to protect a tenant’s right to be free from First Amendment

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retaliation in public housing. Shooter, 4 F.4th at 963. Accordingly, the Court finds that for

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the purposes of this case, Plaintiffs’ asserted rights to be free from retaliation for protected

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speech and organized efforts as tenants in public housing have been clearly established.

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Regarding the other prong of the test for qualified immunity, however, even viewing

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the facts in the light most favorable to Plaintiffs, there are no disputed issues of material

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fact where a reasonable juror could find that Defendants’ conduct violated Plaintiffs’ First

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Amendment rights, as discussed at length in Parts IV.C and IV.D, supra. See Saucier, 533

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U.S. at 200–01. Therefore, the Court finds that Defendants are entitled to qualified

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immunity on Plaintiffs’ First Amendment claims.

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B.

Procedural Due Process

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Even if Defendants are not entitled to qualified immunity on Plaintiffs’ due process

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claim, Defendants are still entitled to summary judgment on the merits as a matter of law.

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Defendants argue that Plaintiffs have failed to raise a disputed issue of fact as to whether

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Plaintiff Czyzewski had a protected property interest in his employment, and whether his

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termination deprived him of that interest. (Doc. 163 at 20–21.)

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1.

Legal Standard

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“Procedural due process imposes constraints on governmental decisions which

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deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due

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Process Clause of the Fifth or Fourteenth Amendments.” Mathews v. Eldridge, 424 U.S.

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319, 332 (1976). A § 1983 claim based on procedural due process has three elements: (1) a

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liberty or property interest protected by the Constitution; (2) a deprivation of the interest

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by the government; and (3) a lack of process. Portman, 995 F.2d at 904.
2.

Protected Property Interest

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Here, Plaintiffs assert that Plaintiff Czyzewski had a protected property interest in

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his employment as an RA at Fillmore Gardens. (Doc. 182 at 12.) Plaintiff Czyzewski was

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employed as an RA beginning on March 21, 2016, through the Scott Business Group

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(“Scott”), an organization with an employee handbook that Plaintiff contends altered his

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at-will employment relationship to one requiring “just cause” for termination. (Id.; see also

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Doc. 163-2 at 261.)

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Defendants rebut this assertion with evidence that Plaintiff Czyzewski’s

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employment contract and the Scott employee handbook indicate that his employment was

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explicitly at-will. (Doc. 163 at 21; Doc. 184 at 16–17; see also Doc. 163-2 at 265; Doc.

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163-2 at 267–75.) Plaintiffs retort that the Scott employee handbook enumerates a list of

22

reasons for “just cause termination” without prior warning. (Doc. 182 at 13.) In Plaintiffs’

23

view, the Scott policy modified Plaintiff Czyzewski’s at-will contract and created a

24

legitimate expectation in his continued employment such that his employment constituted

25

a protected property interest under the Fourteenth Amendment. (Id.) Plaintiffs cite to

26

Wagner v. Globe, 722 P.2d 250, 253 (Ariz. 1986). (Id.) Defendants reply that Wagner is

27

inapposite because the Scott employee handbook reaffirms at-will employment multiple

28

times despite the section that Plaintiffs seek to introduce into the employment contract.

- 13 -

1

(Doc. 184 at 16–17.)

2

Under Arizona law, there is a general presumption that employment relationships

3

for an indefinite term are considered at-will employment, under which an employment

4

relationship can be terminated by either party for any reason at any time. Wagner, 722 P.2d

5

at 252. Parties are free to contract for additional employment terms that modify the

6

traditional at-will relationship, however, including terms that create a protected interest in

7

employment through expected job security. Leikvold v. Valley View Comty. Hosp., 688

8

P.2d 170, 173 (Ariz. 1984). These additional employment terms can become implied-in-

9

fact contract terms, “based on the totality of [] statements and actions” of the parties and

10

create an exception to at-will employment. Wagner, 722 P.2d at 254. So, “[w]hile

11

employment contracts without express terms are presumptively at will, an employee can

12

overcome this presumption by establishing a contract term that is either expressed or

13

inferred from the words or conduct of the parties.” Demasse v. ITT Corp., 984 P.2d 1138,

14

1143 (Ariz. 1999). For example, if the circumstances of employment create an implied

15

promise of job security and the employee relies on it, such implied terms become a part of

16

the contract and “the employment relationship is no longer at will.” Id. (emphasis in

17

original).

18

One such way employment relationships can be modified is through the use of

19

employee handbooks or manuals. Wagner, 722 P.2d at 254. All handbook terms, however,

20

do not create contractual promises. “If the statement is merely a description of the

21

employer’s present policies … it is neither a promise nor a statement that could reasonably

22

be relied on as a commitment.” Id. (quotations omitted). Indeed, employers are free “to

23

issue a personnel manual that clearly and conspicuously tells their employees that the

24

manual is not part of the employment contract and that their jobs are terminable at the will

25

of the employer with or without reason.” Leikvold, 688 P.2d at 174. “Such action[] [in]

26

issuing one with clear language of limitation, [would] instill no reasonable expectations of

27

job security and do[es] not give employees any reason to rely on representations in the

28

manual.” Id.

- 14 -

1

While Arizona courts have recognized that “[w]hether any particular personnel

2

manual modifies any particular employment-at-will relationship and becomes part of the

3

particular employment contract is a question of fact,” it is also true that “[w]here the terms

4

of an agreement are clear and unambiguous, the construction of the contract is a question

5

of law for the court.” Leikvold, 688 P.2d at 174.

6

Here, the Court finds that there is no disputed issue of material fact as to whether

7

Plaintiff Czyzewski’s employment was at-will. Although Plaintiffs point to language in the

8

handbook suggesting that Scott terminates employees for cause under certain

9

circumstances, looking at the entire handbook in context removes any doubt about Plaintiff

10

Czyzewski’s status as an at-will employee. The section that Plaintiffs reference is an

11

outline of Scott’s Code of Professional Conduct that lists prohibited behavior:

12
13
14
15
16
17
18
19
20
21

[Scott] expects all employees to comply with this Conduct
Policy and conduct business in the utmost professional manner.
Any employee not in compliance with this policy is no longer
acting in the Company’s best interest and may be subject to
disciplinary action, including up to termination of
employment.
A. [Scott] expects that all employees exhibit appropriate
and professional behavior at all times while on duty or
on assignment.
B. Behavior identified in the following list shall constitute
cause for immediate termination without previous or
further warning. This list is not intended to be
conclusive and is subject to revision by [Scott] as
necessary and without prior notice:

22
23
24
25
26
27
28

a. Fighting with or engaging in the assault or
threatening harm to any other person while
working
b. Insubordination, including refusal or intentional
failure to perform assigned work; this includes
deliberate failure to follow instructions or work
per [Scott]’s policies and procedures
c. Stealing, damaging, hiding, removing, or
unauthorized possession of [Scott’s] or another
person’s personal property
- 15 -

1

d. Unauthorized use of, or destruction of, or serious
negligence in custody, care, or use of [Scott’s]
equipment, supplies, or facilities whether or not
such conduct results in damage to property or
injury to other persons
e. Falsification of any [Scott] records, reports, or
documents

2
3
4
5
6

(Doc. 163-2 at 271.) The policy indicates that any violation of the code of conduct may

7

result in disciplinary action, but there are certain offenses that warrant immediate

8

termination. The Code of Professional Conduct section upon which Plaintiffs rely

9

immediately follows a section titled “At-Will Employment” that states:

10

13

Employment at this Company is at-will. An at-will
employment relationship can be terminated at any time, with
or without reason or notice by either employer or the employee.
This at-will employment relationship exists regardless of any
statements by office personnel to the contrary.

14

(Id.) Additionally, there are other references to at-will employment in the handbook,

15

including within the Acknowledgment of Receipt:

11
12

16

I acknowledge that nothing in this manual is to be interpreted
as a contract, expressed or implied, or an inducement for
employment, nor does it guarantee my employment for any
period.

17
18
19

I understand and accept that my employment with the
Company is at-will. I have the right to resign with or without
cause, just as the Company may terminate my employment at
any time with or without cause or notice, subject to applicable
laws. I understand that nothing in the manual or any oral or
written statement alters the at-will employment relationship,
except by a written agreement signed by the employee and
[Scott] Chief Operating Officer, Millie Gonzalez-Scott.

20
21
22
23
24
25
26

(Id. at 275.)

27

The section upon which Plaintiffs rely does not overcome the presumption of at-

28

will employment or sufficiently establish the existence of an implied contract when viewed

- 16 -

1

in the context of the entire policy. “An implied-in-fact contract term is [only] formed when

2

a reasonable person could conclude that both parties intended that the employer’s (or the

3

employee’s) right to terminate the employment relationship at-will had been limited.”

4

Demasse, 984 P.2d at 1143 (quotations omitted). Here, no reasonable person could find

5

that Scott intended to incorporate for-cause termination provisions to modify Plaintiff

6

Czyzewski’s at-will employment contract because the disclaimer in the employee

7

handbook is conspicuous and unambiguous. (See Doc. 163-2 at 275.) Moreover, while the

8

Wagner court notes that the presence of a conspicuous disclaimer in an employee handbook

9

may not fully insulate an employer from liability in the presence of “contrary written or

10

oral assurances” to the employee, Plaintiffs have failed to allege that Defendants made any

11

other assurances regarding Plaintiff Czyzewski’s continued employment that would

12

preclude summary judgment on this issue. Wagner at 254, n. 5.

13

“If employment is at-will, then the claimant has no property interest in the job.”

14

Haglin, 42 Fed. Appx. at 57 (citing Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir. 1988));

15

see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“Property

16

interests are not created by the Constitution, they are created and their dimensions are

17

defined by existing rules or understandings that stem from an independent source such as

18

state law.”) (quotations omitted). Because Plaintiffs have failed to establish a disputed

19

material fact as to whether Plaintiff Czyzewski had a protected property interest in his

20

employment, the Court finds that he did not have a protected property interest in his

21

employment as a matter of law. See Leikvold, 688 P.2d at 174. Thus, summary judgment

22

is appropriate on Plaintiffs’ due process claim based on his termination.2

23

C.

First Amendment Retaliation

24

Even if Defendants are not entitled to qualified immunity on Plaintiffs’ First

25

Amendment retaliation claims, Defendants are still entitled to summary judgment on the

26

merits as a matter of law. Plaintiffs assert that Defendants retaliated against them for

27
2

28

Although the parties address the additional prongs of the procedural due process test,
because the Court finds that Plaintiff Czyzewski did not have a protected property interest
in his at-will employment, the Court need not reach the remaining prongs of the test.
- 17 -

1

engaging in conduct protected by the First Amendment. Defendants seek summary

2

judgment on Plaintiffs’ First Amendment retaliation claims based on three events: (1)

3

Defendant Emmerson’s termination of Plaintiff Czyzewski’s RA position; (2) Defendants’

4

attempted eviction of Plaintiffs; and (3) Defendants’ financial audit of Plaintiffs. (Doc. 163

5

at 22–32.) The Court addresses each in turn.

6

1.

7

Employment Termination
i.

Legal Standard

8

In the employment context, to state a claim against the government for a violation

9

of an employee’s First Amendment rights, the employee must establish (1) that he engaged

10

in protected speech; (2) that the employer took an adverse employment action against him;

11

and (3) that his speech was a substantial and motivating factor for the adverse employment

12

action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003); see also Pickering v.

13

Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1986). After the employee meets

14

its burden on the first three steps of the inquiry, the burden shifts to the government to

15

prove “by a preponderance of the evidence that it would have reached the same decision …

16

even in the absence of the protected conduct.” Mt. Healthy City Sch. Dist. Bd. of Educ. v.

17

Doyle, 429 U.S. 274, 287 (1977); see also Clairmont, 632 F.3d at 1102–03. Independent

18

contractors employed under a government contract are subject to the same analysis as

19

public employees. Clairmont, 632 F.3d at 1101 (“[W]hen a business vendor operates under

20

a contract with a public agency, we analyze its First Amendment retaliation claim under

21

the same basic approach that we would use if the claim had been raised by an employee of

22

the agency.”) (quoting Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir.

23

2004)).

24

Here, Defendants focus on the following arguments: (1) Defendant Emmerson did

25

not have a retaliatory motive for firing Plaintiff Czyzewski because he was not aware of

26

any protected speech; and (2) Defendant Emmerson would have terminated Plaintiff

27

Czyzewski even in the absence of his protected speech.3 (Doc. 163 at 23–26.) Plaintiffs’

28

3

Defendants’ brief appears to concede that Plaintiff Czyzewski engaged in protected
speech and that he was subject to an adverse employment action because these arguments
- 18 -

1

Response fails to provide responsive arguments to Defendants’ arguments on Plaintiff

2

Czyzewski’s termination. (See Doc. 182 at 14.) Although Plaintiffs’ brief includes a section

3

heading titled “Frank’s termination violated the First Amendment,” Plaintiffs failed to

4

include any arguments under that section.4 Plaintiffs do reference their First Amendment

5

retaliation claim in the context of their Monell claims, so the Court will refer to those

6

arguments to the extent they are responsive. (See Doc. 182 at 18–20.)

7

ii.

Substantial and Motivating Factor

8

Plaintiffs must first establish that the person who made the decision to fire Plaintiff

9

Czyzewski had knowledge of his protected speech. Allen v. Iranon, 283 F.3d 1070, 1076

10

(9th Cir. 2002). “In addition to knowledge, a plaintiff must (i) establish proximity in time

11

between [his] expressive conduct and allegedly retaliatory actions; (ii) produce evidence

12

that the defendants expressed opposition to [his] speech, either to [him] or to others; or (iii)

13

demonstrate that the defendants’ proffered explanations for their adverse actions were false

14

and pretextual.” Capo v. Port Angeles Sch. Dist. No. 121 et al., No. C07-5685BHS, 2009

15

WL 413498, at *6 (W.D. Wash. Feb. 18, 2009) (citing Alpha Energy Savers, Inc., 381 F.3d

16

at 929). The substantial and motivating factor element “may be met with either direct or

17

circumstantial evidence” and “involves questions of fact that normally should be left for

18

trial.” Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 979 (9th Cir. 2002). Where

19

there are no disputed issues of fact for the jury to decide, however, summary judgment may

20

be appropriate. Coszalter, 320 F.3d at 978 (“[T]he totality of the facts may form such a

21

clear picture that a district court would be justified in granting summary judgment, either

22

for or against a plaintiff, on the issue of retaliatory motive.”).

23

Defendants argue that Defendant Emmerson, PHD Deputy Housing Director, did

24

not have any knowledge of Plaintiff Czyzewski’s protected speech prior to terminating

25

him. (Doc. 163 at 24–25.) Defendants also argue that Plaintiffs have failed to raise a

26
27
28

are not included in its Motion.
4
Moreover, while Plaintiff’s own Partial Motion for Summary Judgment addresses its First
Amendment retaliation claim, the two pages that Plaintiffs dedicate to their claim does not
specifically address whether the relevant test for First Amendment retaliation against
public employees has been met. (See Doc. 165 at 19–20).
- 19 -

1

disputed issue of fact as to whether Defendant Emmerson had a retaliatory motive in firing

2

Plaintiff Czyzewski based on his protected speech. (Id.)

3

Upon review of Plaintiffs’ TAC, Plaintiffs’ Response, and the record, the Court

4

agrees that Plaintiffs have failed to present any disputed facts as to whether Defendant

5

Emmerson was aware of any protected speech by Plaintiff Czyzewski prior to his

6

termination.

7

Plaintiffs’ TAC sets forth the facts surrounding Plaintiff Czyzewski’s termination

8

in paragraphs 43 through 68. Plaintiffs assert that Defendant Emmerson fired Plaintiff on

9

July 18, 2017,5 for being “unprofessional.” (Doc. 136, ¶¶ 57, 67.) Prior to that date, the

10

only evidence of Plaintiff Czyzewski engaging in protected speech occurred on July 12,

11

2017, when Plaintiff Czyzewski, in his capacity as RA, emailed Jerianne Mackenzie and

12

Dina Fernandez about an incident where Plaintiff Czyzewski called 911 because another

13

resident was incapacitated in his own apartment. (Doc. 136, ¶ 50) (citing Doc. 14 at 39). In

14

that email, Plaintiff Czyzewski stated:

15

20

The apartment was hot and humid. The temperature was 84
degrees. The threshold between the kitchen flooring and the
carpet in the living room was wet. Could it be that Clint’s airconditioning needs servicing? I know that Clint is mentally
challenged and want to know if we can do something to prevent
a possible personal health issue of our residences [sic] as it
relates to our maintenance plan that is more focused on the
wellbeing of the residents instead of the money?

21

(Doc. 14 at 39.) The TAC does not indicate whether Plaintiff Czyzewski received a

22

response to this email, or whether either of the parties that received the email disclosed the

23

substance of that email to anyone else, including Defendant Emmerson. Because Plaintiffs

24

have failed to establish any inference that Defendant Emmerson had knowledge of this

25

communication prior to Plaintiff Czyzewski’s termination, Plaintiffs cannot rely on this

26

communication to establish First Amendment Retaliation for Plaintiff Czyzewski’s

16
17
18
19

27
5

28

Although the TAC states that Plaintiff Czyzewski was fired on July 18, 2019, the
chronology of Plaintiffs’ allegations and the evidence relied on suggest that the actual date
of Plaintiff Czyzewski’s termination was on July 18, 2017. (See Doc. 163-2 at 277–81.)
- 20 -

1

termination. Allen, 283 F.3d at 1076.

2

Plaintiffs’ Response attempts to establish Defendant Emmerson’s knowledge of

3

protected speech and a timeline of retaliation by referencing a July 21, 2017, letter from

4

Defendant Emmerson to Plaintiff Bollfrass in which Defendant Emmerson admonishes

5

Plaintiff Bollfrass, as President of the RC, for engaging in harassing behavior of PHD staff

6

and other tenants. (Doc. 182 at 19–20.) Defendant Emmerson’s letter post-dates Plaintiff

7

Czyzewski’s termination by three days but references two specific communications

8

between Plaintiff Bollfrass and PHD staff that occurred on July 14 and 15, 2017 regarding

9

conditions at Fillmore Gardens. (See Doc. 14 at 46.) According to Plaintiffs, “[t]he timeline

10

of these acts is nothing short of conclusive evidence” that Defendant Emmerson retaliated

11

against Plaintiff Czyzewski “for actions taken while assisting the [RC].” (Doc. 182 at 20.)

12

Plaintiffs’ response also points to Defendant Grittman’s deposition where she states that in

13

2017, she had conversations with Defendant Emmerson about how to deal with Plaintiffs

14

“constant harassment.” (Doc. 182 at 18) (citing 182-1 at 233–34.)

15

The Court finds that Plaintiffs have failed to raise a disputed issue of material fact

16

as to whether Defendant Emmerson fired Plaintiff Czyzewski for his protected speech.

17

Instead, the record only establishes that in the months leading up to Plaintiff Czyzewski’s

18

termination, Plaintiff Bollfrass sent several complaints to PHD staff and that three days

19

after Plaintiff Czyzewski was terminated, Defendant Emmerson had knowledge of Plaintiff

20

Bollfrass’s communications. Plaintiffs do not cite to any authority to support their position

21

that the speech of a government employee’s spouse can serve as the employee’s own

22

speech for the purposes of a First Amendment retaliation claim. Moreover, Plaintiffs fail

23

to argue that any of the other Defendants’ knowledge of Plaintiff Czyzewski’s protected

24

speech can be fairly imputed onto Defendant Emmerson. Plaintiffs also cannot rely on

25

Defendant Grittman’s admission regarding speaking with Defendant Emmerson about

26

Plaintiffs’ allegedly harassing behavior in 2017 because Plaintiffs do not present any

27

evidence that those conversations took place prior to Plaintiff Czyzewski’s termination.

28

Even if the Court were inclined to credit Plaintiffs the tenuous inferences that timing

- 21 -

1

establishes a link between the events, the timing alone here is not sufficient to withstand

2

summary judgment in view of the totality of the circumstances suggesting that Defendant

3

Emmerson had no knowledge of Plaintiff Czyzewski’s protected speech. See Coszalter,

4

320 F.3d at 978; see also Capo, 2009 WL 413498, at *8 (granting summary judgment

5

against a plaintiff for failure to establish a reasonable inference that retaliation was a

6

substantial and motivating factor for the adverse action where the only evidence was

7

circumstantial evidence of proximity in time).

8

iii.

But-For Causation

9

Defendants argue that regardless of whether Plaintiff Czyzewski engaged in

10

protected speech and Defendant Emmerson was aware of it, Defendants can establish that

11

Defendant Emmerson would have fired Plaintiff Czyzewski anyway due to his altercation

12

with maintenance worker Robert Olvera. (Doc 163 at 26.) Defendants contend that because

13

Defendant Emmerson had legitimate grounds to terminate Plaintiff Czyzewski, Plaintiffs

14

cannot show a but-for causation between any protected speech and Plaintiff Czyzewski’s

15

termination. (Id.)

16

After the employee meets its burden on the first three steps of the inquiry, the burden

17

shifts to the government to prove “by a preponderance of the evidence that it would have

18

reached the same decision . . . even in the absence of the protected conduct.” Mt. Healthy,

19

429 U.S. at 287.

20

Plaintiff Czyzewski’s duties as an RA included “dealing with the maintenance

21

person Robert [Olvera] who handled work orders,” but Mr. Olvera allegedly did not like

22

either of the Plaintiffs. (Doc. 136, ¶¶ 47–48.) On July 18, 2017, Plaintiff Czyzewski was

23

directed by PHD staff to retrieve a key from Mr. Olvera on behalf of the RC. (Id., ¶¶ 57–

24

59.) When Plaintiff attempted to get the key, however, they got into an altercation that

25

ended with a door being slammed. (Id., ¶ 60); (Doc. 163-2 at 280.) The parties dispute who

26

started the altercation and who slammed the door on who, but Mr. Olvera informed PHD

27

staff that Plaintiff Czyzewski slammed the door in his face. (Compare Doc. 136, ¶ 60 with

28

Doc. 163-2 at 280.) In response, PHD staff called the City of Phoenix Police. (Doc. 136,

- 22 -

1

¶ 62.) After interviewing the involved parties, the police determined that no crime had been

2

committed and did not make any arrests. (Doc. 163-2 at 277–81.) The police report contains

3

the following summary of the incident:

4
5
6
7
8
9
10
11
12
13
14

On 07/18/2017 at 720 hrs Robert Olvera stated that he had a
[confrontation] with Frank Czyzewski over keys. Robert stated
that Frank came to the maintenance building demanding that
he make him a key. Robert stated that he told Frank that he
would have to get ahold of Jerianne.
Robert stated that as he started to shut the door, Frank pushed
it back open into him. Frank again demanded that he get a key
and held up his phone saying that he had a message from
Jerianne. Robert stated that he doesn’t take orders from Frank
and this isn’t the first time that he has tried to use his position
to get things.
I then spoke to Dina who is the housing manager. Dina stated
that this week Frank isn’t in charge at his position and another
resident is. Dina stated that Frank continually gets involved
and tries to take control of the housing unit.

15

(Doc. 14 at 52.) The police told Plaintiff Czyzewski not to speak to Mr. Olvera anymore

16

and left. (Doc. 136, ¶ 65.) At some time later, Defendant Fernandez approached Plaintiff

17

Czyzewski at home and told him to come to her office, where Defendants Grittman and

18

Emmerson were waiting. (Doc. 136, ¶ 66.) The parties dispute the length and context of

19

the meeting, but it is undisputed that Defendant Emmerson fired Plaintiff Czyzewski from

20

his RA position for being allegedly “unprofessional.” (Id., ¶ 67.)

21

Plaintiffs argue, albeit in relation to their Monell claims, that Defendant Fernandez’s

22

statements to City of Phoenix police that he “continually gets involved and tries to take

23

control of the housing unit” contradict Defendants’ attempts to establish that Plaintiff was

24

terminated for the altercation and instead show that the cause of his termination was

25

pretextual. (Doc. 182 at 19.)

26

However, the totality of the evidence suggests that Plaintiff Czyzewski was fired

27

from his RA position because of his altercation with Mr. Olvera. See Coszalter, 320 F.3d

28

at 978. Even viewing the disputed facts in the light most favorable to Plaintiffs, the record

- 23 -

1

shows that Plaintiff Czyzewski was fired immediately after Mr. Olvera reported that he

2

acted in an abusive and threatening manner towards him. Although Plaintiffs dispute who

3

slammed the door in that altercation, even if Plaintiff Czyzewski was the victim, Defendant

4

Emmerson chose to believe Mr. Olvera and fired him based on Mr. Olvera’s account. And,

5

although Plaintiff argues that Defendant Fernandez’s statements to police that “Frank

6

continually gets involved and tries to take control of the housing unit” suggest that the

7

altercation was pretextual, the Court finds Defendant Fernandez’s statement merely

8

constitutes additional evidence that Plaintiff Czyzewski was fired for not properly doing

9

his job as an RA. Plaintiffs do not adequately explain how his alleged attempts to “take

10

over the housing unit” constitute protected speech or establish a disputed fact that his

11

termination was based on anything other than his “unprofessional” behavior, as Defendant

12

Emmerson stated. Under the facts in the record, Plaintiffs are not entitled to any inference

13

that the altercation was a pretext for firing Plaintiff based on any protected speech that he

14

made. Liberty Lobby, Inc., 477 U.S. at 252 (finding the “mere existence of a scintilla of

15

evidence in support of the plaintiff’s position [is] insufficient” in the absence of “evidence

16

on which the jury could reasonably find for the plaintiff”).

17
18
19
20

Therefore, the Court grants summary judgment on Plaintiff’s First Amendment
retaliation claim related to his termination from his RA position.
2.

30-Day Eviction Notice
i.

Legal Standard

21

The First Amendment “forbids government officials from retaliating against

22

individuals for speaking out” against the Government. Blair v. Bethel Sch. Dis., 608 F.3d

23

540, 543 (9th Cir. 2010). To recover under § 1983 for such retaliation, a plaintiff must

24

prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subject

25

to adverse action that would chill a person of ordinary firmness from continuing to engage

26

in the activity; and (3) there was a substantial causal relationship between the

27

constitutionally protected activity and the adverse action. Id. (citations and quotations

28

omitted). After a plaintiff makes these showings, the burden is shifted to the defendants to

- 24 -

1

prove “by a preponderance of the evidence that [they] would have reached the same

2

decision … even in the absence of [the plaintiff’s] protected conduct.” Mt. Healthy, 429

3

U.S. at 287.

4

Defendants appear to concede that Plaintiffs’ engaged in a constitutionally protected

5

activity, that the attempted eviction constitutes an adverse action, and Defendants had

6

knowledge of Plaintiffs’ protected activity. Defendants argue that Plaintiffs cannot

7

establish that retaliation was a substantial and motivating factor behind the attempted

8

eviction, and retaliation was not the but-for cause of the attempted eviction in view of

9

Plaintiff Czyzewski’s altercation with Ms. Magaard. (Doc. 163 at 29–32.)

10

ii.

Substantial and Motivating Factor

11

Defendants argue that Plaintiffs have failed to offer any direct or circumstantial

12

evidence that the eviction notice was motivated by retaliation. (Doc. 163 at 29.)

13

Specifically, Defendants contend that Plaintiffs’ circumstantial evidence of timing alone is

14

not enough to raise a triable issue when looking at the “totality of the facts.” (Id.)

15

Defendants argue that Plaintiffs have failed to put forth evidence of Defendants’ opposition

16

to Plaintiffs’ protected speech or any evidence that the reason for Plaintiffs’ attempted

17

eviction was pretextual. (Id. at 30.)

18

Plaintiffs first respond that the Court previously rejected Defendants same

19

arguments at the motion to dismiss stage. (Doc. 182 at 7.) Plaintiffs point to passages of

20

this Court’s Order on Defendants’ Motion to Dismiss to support its position that the Court

21

has already decided that Plaintiffs’ have “objective evidence of retaliation” based on

22

Defendant Fernandez’s alleged statement to police officers that an arrest guarantees an

23

eviction. (See Doc. 182 at 7–9.) The Court disagrees with this characterization of its Order.

24

As Defendants note, the standards are different for motions to dismiss and motions

25

for summary judgment. At the motion to dismiss stage, the Court evaluated the sufficiency

26

of Plaintiffs’ allegations to assess whether Plaintiffs stated enough facts in their complaint

27

that, if true, present a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

28

Here, on summary judgment, the Court evaluates whether Defendants, as the moving party,

- 25 -

1

have met their burden to show that there are no material disputed facts left for trial and

2

that, in viewing the evidence in the light most favorable to the nonmoving party, summary

3

judgment is warranted as a matter of law. Fed. R. Civ. P. 56(a); see also Adickes, 398 U.S.

4

at 157. At this stage, the Court has been presented with evidence from both parties and

5

does not rely solely on the assertions in Plaintiffs’ TAC. Moreover, the cited passages from

6

this Court’s prior Order discuss the evidence in the context of retaliatory arrests under

7

Lozman v. City of Rivera Beach, --- U.S. ---, 138 S. Ct. 1945, 1947–48 (2018), and state

8

law retaliation under A.R.S. § 33-1381(A), not under the standard for First Amendment

9

retaliation. (See Doc. 90 at 7–9.) Therefore, the Court reevaluates the parties’ arguments

10

and evidence under the summary judgment standard, irrespective of what the Court

11

determined at the motion to dismiss stage.

12

Plaintiffs point to several pieces of evidence that they allege support a finding of

13

retaliatory motive for the eviction notice. First, are made by Defendant Fernandez to police

14

officers during an interview regarding an altercation at the PHD manager’s meeting on July

15

21, 2018 between Plaintiff Czyzewski and Ms. Magaard that ultimately led to Plaintiff

16

Czyzewski’s arrest.6 (Doc. 182 at 8; see Doc. 182-1.) According to Plaintiffs’ interpretation

17

of the transcript:

18

Defendant Dina Fernandez was “actually typing up a ‘thirty
day’ … eviction notice” when she told the arresting officers
that the Defendants “no longer want to recognize this [RC]”
and that going “through HUD” is “not an immediate change.”
While she is literally typing up the eviction notice, Dina
Fernandez tells Defendant Julie Bosshart “that’s my
justification” in reference to the incident between Frank and
Donna Magaard. Defendant Fernandez then further states:
“You know the emails everybody gets, they’re just bullies.”
Julie Bosshart agreed stating “they are bullies.”

19
20
21
22
23
24
25
26

(Doc. 182 at 8) (citations omitted). Plaintiffs also refer to a statement Defendant Hogan

27

made during a March 6, 2019, meeting where Defendant Hogan, in reference to a pending

28
6

The parties dispute who started the altercation.
- 26 -

1

financial audit into the RC’s alleged misuse of funds, that “you bet your bottom dollar

2

you’ll be held accountable for whatever you all do here.” (Doc. 182 at 8) (citing Doc. 32-

3

1, ¶ 12). Finally, Plaintiffs rely on the timing between Plaintiffs’ complaints about the non-

4

smoking policy and Plaintiffs’ RC activism, coupled with the independent panel’s decision

5

to vacate the eviction, as circumstantial evidence of a retaliatory motive for the eviction.

6

(Doc. 182 at 9–10.)

7

In reply, Defendants maintain that Plaintiffs’ citations to the record are misleading

8

and attempt to create a disputed issue of fact where there is none. (Doc. 184 at 14–15.) For

9

example, although Plaintiffs recite the above statements by Defendant Fernandez,

10

Defendants argue that Plaintiffs put those statements out of context of the entire 104-page

11

transcript and fail to cite to specific portions of the transcript to obfuscate the evidence.

12

(Doc. 184 at 15.)

13

To establish that a plaintiff’s protected activity was a substantial and motivating

14

factor for an adverse action taken against them, a plaintiff must establish knowledge by the

15

decision maker and one of the following: (i) establish proximity in time between [his]

16

expressive conduct and allegedly retaliatory actions; (ii) produce evidence that the

17

defendants expressed opposition to [his] speech, either to [him] or to others; or (iii)

18

demonstrate that the defendants’ proffered explanations for their adverse actions were false

19

and pretextual.” Capo, 2009 WL 413498, at *6 (citing Alpha Energy Savers, Inc., 381 F.3d

20

at 929). The substantial and motivating factor “may be met with either direct or

21

circumstantial evidence” and “involves questions of fact that normally should be left for

22

trial.” Ulrich, 308 F.3d at 979. In Coszalter, however, the Ninth Circuit held that “[t]he

23

totality of the facts may form such a clear picture that a district court would be justified in

24

granting summary judgment, either for or against a plaintiff, on the issue of retaliatory

25

motive.” 320 F.3d at 978.

26

Here, knowledge is not in dispute, so the Court will evaluate whether there is other

27

evidence to support a retaliatory motive for the eviction.7

28

7

Although the parties are not clear on what Plaintiffs’ protected speech was, the parties
appear to agree that at least Plaintiffs’ letters to HUD and PHD regarding the enforcement
- 27 -

1

a.

Police Officer Body Camera Footage

2

The Court has reviewed the transcript of the police officer’s body camera footage

3

from June 21, 2018, and other relevant evidence in the record and finds that Plaintiffs’

4

inaccurately present the facts surrounding the eviction notice and arrest. The Court, after

5

evaluating the totality of the facts, further finds that Plaintiffs fail to raise a disputed issue

6

of fact for trial. See Coszalter, 320 F.3d at 978.

7

The body camera transcript illustrates a different picture than the one presented by

8

Plaintiffs. In talking with the police officers, Defendant Fernandez stated she was typing

9

up the eviction notice after relaying her eyewitness account to the officers and mentioning

10

that Plaintiff Czyzewski had a past altercation with PHD maintenance staff. (Doc. 182-1 at

11

151:721–152:773.) There is no discussion of Plaintiffs’ involvement in the RC or

12

Plaintiffs’ prior complaints to PHD or HUD regarding the non-smoking policy during this

13

portion of the transcript.

14

Then, the police officers ask for identifying information about Plaintiff Czyzewski

15

and Ms. Magaard and explain PHD’s rights to press charges based on Plaintiff Czyzewski’s

16

conduct at the manager’s meeting. (Doc. 182-1 at 152:779–158:1040.) During that portion

17

of the conversation, Defendant Fernandez states that she is texting with the housing

18

manager, Defendant Grittman, to see whether she wants to press charges because

19

Defendant Fernandez is not sure what to do. (Doc. 182-1 at 158:1038–40.) The officers

20

then ask clarifying questions about Ms. Magaard’s decision to call the police:

21
22
23

Q1 [Officer]: Okay that’s what we were wondering who - [Ms.
Magaard] was sayin’ that officers always come. We didn’t
know if it was [] community guys or?

24

A2 [Defendant Fernandez]: Yeah that’s (Walking Beat).

25

Q1: That’s (Walking Beat).

26
27
28

A2: Yeah. So when she told me - ‘cause I- I- we were just
talking and I told her I feel so bad that I got wrapped up here
of the nonsmoking policy in 2017 and 2018 constitute protected speech, to the extent that
those communications were not harassing or threatening towards PHD staff.
- 28 -

1
2
3
4
5
6

in tryin’ to figure out what we were gonna do with him. So I
knew I had to talk to [Ms. Magaard]. And so when I called her,
she says well I called (unintelligible). I’m, like, oh okay. Um,
and I never even though of doing that. I didn’t - wasn’t thinking
clearly I guess.
…
A1 [Defendant Bosshart]: It was just one of those things where
it all happened so quickly. The Fair Housing person was there.
It was just chaos…

7

A2: [Y]eah. That’s my justification (unintelligible).

8

11

…
A2: … I didn’t even think about it at all actually. Um, and
normally, I call when something like this happens - I call
(Walking Beat) and say this is what happened, what do you
suggest? But I didn’t have time to - she beat me to [it].

12

(Doc. 182-1 at 159:1105–160:1154.) It is clear from this record that Defendant Fernandez

13

was not saying “that’s my justification” in reference to why she was writing the eviction

14

notice. Instead, Defendant Fernandez is discussing why she did not call the police herself.

15

Plaintiffs attempt to use this statement as evidence of pretext for the eviction, but the Court

16

does not find a disputed issue of fact in view of the transcript itself.

9
10

17
18
19

Moreover, the statements about the RC appear to be similarly innocuous and in
response to the officers’ questioning related to whether PHD should press charges:
Q [Officer]: Has he been an issue for you guys?

20
21
22
23

A1 [Defendant Bosshart]: Yeah.
A2 [Defendant Fernandez]: Him and his boyfriend. A, like, …
one of those just annoying pains that just don’t go away and
it’s being disruptive - it’s toxic actually.

24
25
26
27
28

Q1: Things you gotta think about is - is he- are you guys able
to remove him from this position. That way he’s not in the
meetings anymore and, like…
A2: It’s not an immediate change as (Julie) said because it is
through HUD and it’s a city.

- 29 -

1
2
3
4

Q1: Okay.
A2: So we have to go through some channels and we have to
send a letter to HUD and tell ‘em that…
Q1: Okay.

5
6
7
8
9
10
11
12

A2: …we don’t - we no longer wanna recognize this, ah, tenant
council blah, blah, blah. And then go through that channel…
…
A1: I mean, he did raise his fists.
A2: She’s feelin’ awful. She knows him too well. And the
(unintelligible) is the eviction. You should…
…
A2: I’m tryin’ to say you know the emails everybody gets and
they’re just harass- they’re - they’re just bullies.

13

A1: They- they are bullies.

14

A2: But I don’t know about him being arrested.

15
16
17
18
19

Q: Well, I mean, we can’t tell you obviously what to do. But if
this is a continuing issue and if what Donna said is true that she
feels threatened…
A2: So we’re not exaggerating that we heard that when it was
goin’ on. He put up his fists and he was chasing her. We had to
stop him. Then he came back at me.

20
21

(Doc. 182-1 at 163:1285–164:1331.)

22

These statements about the RC are not an explicit statement that PHD “no longer

23

wants to recognize the [RC],” as Plaintiffs suggest. It is clear from the context of the

24

conversation that Defendant Fernandez is explaining the process for removing Plaintiff

25

Czyzewski from the RC in response to the officer’s question about whether that would help

26

alleviate the need to press charges against him. Although she refers to Plaintiffs as “toxic”

27

and “bullies,” Defendant Fernandez is not stating that she wishes to dissolve the RC or that

28

she opposes any of Plaintiffs protected speech. Even Defendant Fernandez’s reference to

- 30 -

1

the “emails everyone gets” would not lead a reasonable fact finder to conclude that she is

2

referring to Plaintiffs’ letters regarding enforcement of the non-smoking policy.8

3

Throughout the conversation, Defendant Fernandez is texting with Defendant

4

Grittman and ruminating aloud with Defendant Bosshart about whether to press charges

5

and seek Plaintiff Czyzewski’s arrest. (See Doc. 182-1 at 160:1151, 1163–64, 161:1192–

6

93.) Directly following the above dialogue, the conversation turns to whether Plaintiff’s

7

conduct warrants a 5-day eviction notice, instead of the 30-day notice that Defendant

8

Fernandez already started to draft:

9

A1 [Defendant Bosshart]: Well and - so if you arrest him, I’m
assuming he’ll get bailed out and he’ll be able to return. Part of
my concern is…

10
11

14

Q1 [Officer]: Yeah he potentially could be back tomorrow
morning.
…
A1: Is that 5-day then? Is that becoming five days?

15

A2 [Defendant Fernandez]: If it is, I’m going for it.

12
13

16

A1: Okay. ‘Cause part of it is the aftermath because there’s 120
residents that also live here.
…
A2: The to- the- the venom that’s going to be placed once I get
it - that he is arrested, I’m already on their hit list anyway, so
it’s not like it’s a big deal but…
…
Q: But what are the [] repercussions if he’s left today?
…
A1: And part of my concern is also for Donna as well. Is if
nothing’s done because he’s obviously gonna blame her.

17
18
19
20
21
22
23
24

A2: And he’s already doing that.
…
A2: So we’ll wait for this and if she says yes because this is a
5-day - if he’s arrested then I’m gonna go ahead and go for it.

25
26
27
8

28

This is especially true in view of the email evidence proffered by Defendants and the
Letter of Concern issued to Plaintiff Bollfrass for his email harassment of PHD staff, as
discussed in Part IV.C.2.ii.c, infra.
- 31 -

1
2

Q: So 5-day - 5-day eviction?

3

A2: we call it a 5-day … in the private sector. Five-day means
you’re literally out of there in five days.

4
5

(Doc. 182-1 at 164:1333–167:1441.) Then, in the middle of explaining another situation

6

where PHD attempted to evict a resident in five days, Defendant Fernandez states “[s]he

7

said if he didn’t make harm to I- it be a hard sell with (Janice) which is our attorney. We

8

can try. The worst that can happen is she turns it into a 30. We’re already issuing him a 30-

9

day.” (Id. 167:1472–1475.) Defendant Fernandez then continues to ask the officers whether

10

they would press charges in her situation. (Id. 168:1505.) After another short discussion

11

about Plaintiff Czyzewski’s potential future conduct based on his altercation at the

12

manager’s meeting, Defendant Fernandez tells the officers to make the arrest. (Id.

13

168:1507–169:1541.)

14

Although Plaintiffs point to this portion of the conversation as evidence that

15

Plaintiffs’ arrest and eviction were pretextual, the Court finds no disputed issue of fact in

16

view of the entire discussion. The dialogue between the parties clearly evidences Defendant

17

Fernandez’s hesitation about arresting Plaintiff Czyzewski, and she only agrees to the arrest

18

after a lengthy discussion about the safety of other residents. Nothing in this conversation

19

can be reasonably construed as an attempt to evict Plaintiffs for protected speech, an

20

opposition to Plaintiffs’ protected speech, or a pretextual reason to evict Plaintiffs. This is

21

especially true in view of Arizona Fair Housing Center representative Shawna Tarboro’s

22

witness statement about what she witnessed during the June 18, 2017, manager’s meeting.

23

(Doc. 182 at 92) (“Based on what I experienced, I recommend Mr. Czyzewski be issued a

24

City of Phoenix health and safety violation that would terminate his residency.”); (see also

25

Doc. 163-2 at 57:5–72:23) (Ms. Tarboro’s deposition testimony reaffirming the accuracy

26

of her witness statement).

27
28

b.

Defendant Hogan’s Statement

Plaintiffs also seek to rely on Defendant Hogan’s March 6, 2019, statement that

- 32 -

1

“you bet your bottom dollar you’ll be held accountable for whatever you all do here.” (Doc.

2

182 at 8) (citing Doc. 32-1 ¶ 12). The record shows that Defendant Hogan made this

3

statement during her meeting with Plaintiffs following their failure to pay rent seven

4

months after the PHD Grievance Panel’s decision to set aside the eviction notice. Plaintiffs

5

attempts to lump this conversation in with their arguments that Defendants retaliated

6

against Plaintiffs by seeking to evict them is unavailing.

7

c.

Remaining Evidence

8

Finally, Plaintiffs rely on the timing between Plaintiffs’ complaints about the non-

9

smoking policy and Plaintiffs’ RC activism as circumstantial evidence of a retaliatory

10

motive for the eviction. (Doc. 182 at 9–10.) In response, Defendants present evidence that

11

their responses to Plaintiffs’ complaints about the non-smoking policy and other resident

12

lease violations were positive and encouraging, (see Doc. 163-2 at 9–11, 420–22, 426–48),

13

unless Plaintiffs’ complaints were abusive or harassing in nature (see Doc. 14 at 44, 46.)9

14

For example, in response to Plaintiffs’ letter to HUD on the non-smoking policy, Plaintiff

15

received two letters that thanked Plaintiff Bollfrass for his involvement with the RC and

16

his efforts to help Fillmore Gardens become smoke-free. (Doc. 14 at 58, 62.) Additionally

17

in response to Plaintiffs’ emails about resident lease violations that did not include insults

18

about PHD staff, they always responded with “thank you for reporting this information,”

19

and an outline of PHD’s next steps. (See Doc. 163-2 at 9–11, 420–22, 426–48.)
To show that retaliation was a substantial and motivating factor behind Defendants’

20
21
22
23
24
25
26
27
28

9

Although Plaintiffs rely on the July 21, 2017 Letter of Concern to prove that Defendants
opposed their protected speech, the “opposition” that Plaintiffs cite to is in reference to
self-serving, and frankly condescending statements made within Plaintiffs’ complaints.
(See Doc. 14 at 46) (“In the past few months, you have been sending daily emails and text
messages or phone calls to HD staff consisting of aggressive and abusive demands and
accusations that are generally unrelated to the purposes of the Resident Council.”). For
example, Plaintiff’s June 14 and 15, 2017 emails to PHD staff regarding conditions at
Fillmore Gardens include statements such as “[t]he present smoking area is a perfect
example of what management does when they do not care about those who are using it”
and “I am angry and disgusted at the actions of management…was this done intentionally
or was it just another stupid action by management?!,” which PHD reasonably interpreted
as harassing. (See Doc. 14 at 46.) The Court finds that PHD’s July 21, 2017 Letter of
Concern admonishing Plaintiff Bollfrass for his insults and harsh tone does not suggest
opposition to Plaintiffs’ First Amendment right to air its grievances where those grievances
contained harassing speech, as a matter of law. See Rowan v. U.S. Post Off. Dep’t, 397 U.S.
728, 736 (1970).
- 33 -

1

allegedly retaliatory actions, Plaintiffs “can introduce evidence regarding the proximity in

2

time between the protected action and the allegedly retaliatory [conduct], from which a

3

jury logically could infer that the plaintiff was [retaliated against] for his speech.”

4

Coszalter, 320 F.3d at 977 (quotations and citations omitted). The Coszalter court

5

addressed the significance of time proximity evidence at the summary judgment stage:

6

13

There is no set time beyond which acts cannot support an
inference of retaliation, and there is no set time within which
acts necessarily support an inference of retaliation. Whether an
adverse [] action is intended to be retaliatory is a question of
fact that must be decided in the light of the timing and the
surrounding circumstances. In some cases, the totality of the
facts may form such a clear picture that a district court would
be justified in granting summary judgment, either for or against
a plaintiff, on the issue of retaliatory motive; but the length of
time, considered without regard to its factual setting, is not
enough by itself to justify a grant of summary judgment.

14

Id. at 978. In Coszalter, the Ninth Circuit reversed the lower court because in addition to

15

proximity evidence, the plaintiffs also provided additional evidence that the defendants’

16

explanation for its adverse employment actions were pretextual. Id.

7
8
9
10
11
12

17

The Court notes that Plaintiffs have failed to put forth affirmative evidence that

18

Defendants expressed opposition to Plaintiffs’ protected speech and RC involvement, or

19

that their decision to issue the eviction notice was based on pretext. The eviction notice,

20

however, was served on Plaintiffs on June 25, 2018, less than a year after Plaintiffs’

21

repeated communications with PHD and HUD regarding enforcement of the non-smoking

22

policy and Plaintiffs’ engagement in the RC. Additionally, Defendants do not dispute their

23

knowledge of those protected activities. Accordingly, because of temporal proximity, the

24

substantial and motivating factor tips slightly in favor of Plaintiffs such that the Court will

25

consider whether Defendants properly meet their burden to establish that the protected

26

conduct was not the but-for cause of the eviction, as a matter of law. See Mt. Healthy, 429

27

U.S. at 287; see also Coszalter, 320 F.3d at 978 (“An eleven month gap in time is within

28

the range that has been found to support an inference that [a] decision was retaliatory.”).

- 34 -

1

iii.

But For Causation

2

At the outset, the parties dispute whether the standard for “but-for causation”

3

outlined in Nieves applies to Plaintiff’s First Amendment retaliation claim for eviction. In

4

Nieves, in the context of a claim for retaliatory arrest, the Supreme Court placed the burden

5

on the plaintiff to establish that a retaliatory motive was the but-for cause of the adverse

6

action, “meaning that the adverse action against the plaintiff would not have been taken

7

absent the retaliatory motive.” Nieves v. Bartlett, --- U.S. ---, 139 S. Ct. 1715, 1722 (2019).

8

Plaintiff argues that the standard applicable here is more relaxed, while Defendant

9

maintains that the Nieves case supplies the correct standard. (Doc. 182 at 10; Doc. 184 at

10

15-16.) According to Plaintiffs, the Mt. Healthy and Pickering cases properly place the

11

burden on the government to establish that its decision would have been the same even in

12

the absence of the protected speech. (Doc. 182 at 10.) The Court notes that Mt. Healthy

13

and Pickering are both employer retaliation cases, and the Ninth Circuit recently applied

14

the Nieves standard outlined above to a First Amendment retaliation claim based on

15

governmental action against a non-employee. See Sampson v. County of Los Angeles, 974

16

F.3d 1012, 1019 (9th Cir. 2020) (“To prevail, [the plaintiff] must establish that Defendants’

17

retaliatory animus was the but-for cause of her injury….”) (quotations omitted).

18

The Court finds that regardless of which party has the burden to establish causation,

19

Defendants have affirmatively put forth evidence that the eviction notice would have issued

20

regardless of Plaintiffs’ protected speech. The Court is not persuaded by Plaintiffs’

21

attempts to mislead the Court with a misrepresentation of the relevant evidence, as

22

discussed above.

23

Based on the in-depth review of the police officer’s body camera footage transcript

24

discussed above, Defendants have met their burden to establish that the eviction notice

25

would have been issued regardless of Plaintiffs’ protected speech due to Plaintiff

26

Czyzewski’s altercation with Ms. Magaard. (Doc. 182-1 at 86–88.) As noted in the

27

transcript, Defendants Fernandez and Bosshart were apprehensive about Plaintiff

28

Czyzewski’s past and present anger issues and their ability to keep other residents safe if

- 35 -

1

he remained in the complex. Also apparent from the transcript is Defendants Fernandez

2

and Bosshart’s hesitation to have Plaintiff Czyzewski arrested for his conduct and the

3

absence of any discussion about opposition to Plaintiffs’ protected speech.

4

Plaintiffs point to the fact that the PHD Grievance Panel issued a decision setting

5

aside the eviction notice as evidence that the eviction was retaliatory. The hearing decision,

6

however, states only that “[t]he Panel found that both Ms. Magaard and Mr. Czyzewski

7

were at fault and that Ms. Magaard initiated the alteration. The Termination of Lease for

8

Material Non-compliance is hereby set aside.” (Doc. 163-4 at 24–25.) The decision does

9

not find any facts suggesting Defendants issued the notice in a manner supporting an

10

inference of pretext or that it was based on anything other than this altercation. The fact

11

that the eviction notice was overturned, by itself, would not lead a reasonable fact finder to

12

conclude that Defendants’ motivation for the eviction notice was based on something other

13

than the altercation itself in the absence of other affirmative evidence. Coszalter, 320 F.3d

14

at 978. The panel simply states that in light of Plaintiffs’ live witness testimony that was

15

only refuted by “hearsay,” the panel could not uphold the eviction when multiple witnesses

16

testified that Ms. Magaard instigated the altercation. (See Doc. 163-4 at 24–25.)

17

For the foregoing reasons, the Court grants summary judgment in favor of

18

Defendants on Plaintiffs’ First Amendment retaliation claim based on the June 25, 2018,

19

eviction notice.

20

3.

PHD Housing Audit

21

At the outset, the Court notes that Plaintiffs’ Response fails to respond to many of

22

Defendants’ arguments regarding Plaintiffs’ First Amendment retaliation claim based on

23

the PHD Housing Audit.10 (See Doc. 182.) If the moving party meets its initial

24

responsibility, the burden then shifts to the opposing party who must demonstrate the

25

existence of a material factual dispute, and that the dispute is genuine, “i.e., the evidence

26

is such that a reasonable jury could return a verdict for the nonmoving party.” Dudley v.

27

10

28

While Plaintiffs do discuss the housing audit in the context of their Monell claims, the
Court does not find those arguments responsive to the specific test for First Amendment
retaliation and Defendants related arguments, except as noted below. (See Doc. 182 at 5–
6).
- 36 -

1

Robbinson, CV 08-1315-PHX-SMM (LOA), U.S. Dist. LEXIS 133569, at *3 (D. Ariz.

2

Oct. 20, 2009); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

3

586 (1986). Accordingly, the Court will only address Defendants’ arguments briefly in the

4

absence of rebuttal from Plaintiffs. See Tapestry on Cent. Condo. Ass’n v. Liberty Ins., No.

5

CV-19-01490-PHX-MTL, 2021 WL 1171504, at *14 (D. Ariz. Mar. 29, 2021) (collecting

6

cases deeming a party’s lack of response as a concession of the validity of an opposing

7

party’s argument on the merits).

8

Defendants argue that (1) a housing audit would not chill a person of ordinary

9

firmness, (2) there was no retaliatory animus behind the housing audit, and (3) there is no

10
11

but-for causation linking the housing audit to Plaintiffs’ protected activity.
i.

Chilling Adverse Action

12

Defendants argue that a PHD financial audit would not chill a person of ordinary

13

firmness from continuing to engage in protected activity. (Doc. 163 at 26.) According to

14

Defendants, the audit was “merely a request that Plaintiffs bring forward documentation

15

proving that two sets of deposits, shown by records voluntarily handed to PHD, were in

16

fact loans or inheritances as the Plaintiffs claimed.” (Id. at 27.)

17

An essential element of a First Amendment retaliation claim is “whether an

18

official’s acts would chill or silence a person of ordinary firmness from future First

19

Amendment activities.” Mendocino Env’l Ctr. v. Mendocino County, 192 F.3d 1283, 1300

20

(9th Cir. 1999). “Some retaliatory actions—even if they actually have the effect of chilling

21

a plaintiff’s speech—are too trivial or minor to be actionable as violations of the First

22

Amendment.” Dudley, 2008 WL 3890664, at *8 (D. Ariz. Aug. 20, 2008) see also

23

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (9th Cir. 2005)

24

(finding that a “de minimis inconvenience to [the] exercise of First Amendment rights” is

25

not actionable); but see Ulrich, 308 F.3d at 977 (“The denial of even a ‘trivial’ benefit may

26

form the basis for a First Amendment claim where the aim is to punish protected speech.”).

27

Here, the relevant facts in evidence are that on February 11, 2019, Plaintiffs received

28

a 14-day eviction notice for failure to pay their rent on time. (Doc. 14 at 109.) In response

- 37 -

1

to the letter, Plaintiffs contacted Defendant Hogan, who set up a meeting to discuss the

2

issue on March 6, 2019. (Doc. 136, ¶¶ 187–88.) This meeting was recorded, and a partial

3

transcript has been made part of the record. (See Doc. 163-4 at 35–40.) Plaintiffs

4

voluntarily furnished their bank statements to Defendant Hogan to prove that they paid

5

their February 2019 rent. In reviewing the documentation, Defendant Hogan noticed that

6

Plaintiffs appeared to have additional, unreported income in the form of several large

7

deposits that would cause them to exceed the public housing income limits if no exceptions

8

were met.11 (Doc. 163-2 at 28–29); (Doc. 163-4 at 36–37); (Doc. 136, ¶ 189.) Plaintiff

9

Czyzewski claimed that the money came from an inheritance and loans that he had paid

10

back. (Doc. 163-4 at 37–38.) As a follow up to the meeting, Defendant Hogan informed

11

Plaintiffs that she needed to see additional documentation for the deposits to prove that

12

they did not constitute additional income that would affect Plaintiffs’ eligibility for public

13

housing. (Doc. 136, ¶ 194.) On March 14, 2019, Defendant Hogan followed up with

14

Plaintiffs over email requesting additional financial information about the deposits,

15

including: “Bank statements from September to December[;] Verification of the date

16

account was opened[;] [A] copy of the back of the check you provided to indicate the check

17

was processed through the bank[; and] Loan Agreement between you and Christine

18

Czyzewski.” (Doc. 14 at 111.)

19

The Court finds that, under these facts, a person of ordinary firmness reasonably

20

could have been chilled from engaging in future First Amendment conduct due to the

21

financial audit because, as Defendants point out, the audit was directly related to their

22

eligibility to remain in their income-subsidized housing. A jury could reasonably infer that

23

subjecting a person to such a financial audit after receipt of two eviction notices would

24

have more than a de minimis effect on them. Ulrich, 308 F.3d at 977 (“The denial of even

25

a ‘trivial’ benefit may form the basis for a First Amendment claim where the aim is to

26

punish protected speech.”). Therefore, the Court declines to grant summary judgment in

27

favor of Defendants on this basis.

28

11

The specific amount of unreported income was filed under seal and the Court does not
need to disclose it here.
- 38 -

1

ii.

Retaliatory Animus

2

Defendants next argue that Plaintiffs have failed to establish that their protected

3

activity was a substantial and motivating factor for the financial audit because there is no

4

evidence of a retaliatory animus behind the audit. (Doc. 163 at 27–28.) Because Plaintiffs

5

failed to respond to Defendants’ arguments and evidence on this issue, the Court agrees.

6

Coszalter, 320 F.3d at 978 (“[T]he totality of the facts may form such a clear picture that a

7

district court would be justified in granting summary judgment, either for or against a

8

plaintiff, on the issue of retaliatory motive.”).

9

The Court bases its decision on the following unrebutted facts laid out by

10

Defendants. At Fillmore Gardens, notices for non-payment of rent are auto generated by

11

the system when a tenant is not current on their rent. (Doc. 163-2 at 31–32.) Plaintiffs failed

12

to pay their rent on time for February 2019, so they received an auto-generated notice of

13

non-payment. (Id. at 32–33.) Upon receipt of Plaintiffs’ request, Defendant Hogan agreed

14

to meet with Plaintiffs about the notice. That meeting took place on March 6, 2019. At that

15

meeting, Plaintiffs presented Defendant Hogan with unedited, unredacted bank statements

16

to show that the rent money did leave their account, albeit late. (Doc. 163-4 at 36–40.)

17

Upon review of those statements, Defendant Hogan noticed large, unreported deposits into

18

Plaintiffs’ account and initiated a routine audit to evaluate whether Plaintiffs were still

19

eligible to remain in federally funded public housing in view of their additional unreported

20

income. (Id.)

21

On May 28, 2019, Defendant Hogan sent an email to Defendant Grittman about the

22

audit, summarizing that Plaintiffs had unreported income potentially exceeding public

23

housing income limits and had failed to report it to management as required by the PHD

24

Admissions and Continued Occupancy Policy (“ACOP”). (Doc. 163-4 at 43.) Defendant

25

Hogan’s letter informs Defendant Grittman of other irregularities in Plaintiffs’ accounts

26

that needed to be investigated further. (Id.) Defendant Grittman noted during her deposition

27

that it is a violation of the model HUD lease to not report income within 30 days of

28

receiving it. (Doc. 163-2 at 30.)

- 39 -

1

Plaintiffs’ Response does argue, albeit in the context of their Freedom of

2

Association claim, that PHD had no “authority to engage in an independent audit of a

3

particular resident absent a regularly scheduled examination.” (Doc. 182 at 6.) Plaintiffs’

4

assert that this proposition, for which they offer no citations, and the timing of the audit

5

with the prior eviction notices establishes that the audit was “nothing more than

6

harassment.” (Id.)

7

However, Defendants rebut Plaintiffs’ argument with specific regulations

8

authorizing PHD to engage in interim audits based on income information. (Doc. 184 at

9

13.) For example, HUD regulations authorize the housing authority to “conduct an interim

10

reexamination of family income and composition” at any time. 24 C.F.R. § 982.516(c); see

11

also 24 C.F.R. §§ 5.236(b)(3), 5.230(b)(2). Additionally, the ACOP states that “[i]f the

12

family does not report the change [in income] timely and accurately [within 30

13

days] . . . [t]he Housing Department will review all sources of income and may include

14

sources that would have been excluded if the change was reported timely and accurately.”

15

(Doc. 163-2 at 193.) Moreover, Plaintiffs do not dispute that they did not report changes to

16

their income within 30 days or that Defendant Hogan only inquired about the deposits after

17

Plaintiffs voluntarily submitted their unredacted financial statements to show that their

18

February rent was paid. (See Doc. 184 at 13); see Tapestry, 2021 WL 1171504, at *14

19

(collecting cases deeming a party’s lack of response as a concession as to the validity of an

20

opposing party’s argument on the merits).

21

Accordingly, the Court finds that, in view of the evidence presented by Defendants,

22

Plaintiffs’ TAC and briefing do not establish the existence of a disputed material fact as to

23

whether Defendant Hogan had a retaliatory motive to conduct the audit into Plaintiffs’

24

financials, where the audit was instigated by an auto-generated notice and conducted in

25

accordance with PHD policy.

26

iii.

But For Causation

27

The Court also finds that Plaintiffs cannot establish but for causation between the

28

audit and their protected speech because Defendants have proffered unrebutted evidence

- 40 -

1

that the audit was based on HUD regulations and the ACOP. See Sampson, 974 F.3d at

2

1019. Publicly funded housing is a limited resource for those that cannot afford housing

3

without government assistance. Only those persons who qualify for public housing under

4

the relevant regulations should be eligible to enjoy its benefits. Plaintiffs voluntarily

5

provided their unredacted bank statements with unexplained and unreported cash infusions

6

that triggered an audit under the relevant policies. See 24 C.F.R. § 982.516(c); see also 24

7

C.F.R. §§ 5.236(b)(3), 5.230(b)(2); (Doc. 163-2 at 193.) Plaintiffs present no evidence that

8

they were singled out for an audit or that others in the same position were not audited.

9
10

Accordingly, the Court grants Defendants’ Motion for Summary Judgment on
Plaintiffs’ First Amendment retaliation claim based on the PHD housing audit.

11

D.

12

Even if Defendants are not entitled to qualified immunity on Plaintiffs’ First

13

Amendment freedom of association claims, Defendants are still entitled to summary

14

judgment on the merits as a matter of law. Among the rights protected by the First

15

Amendment are the rights of individuals to speak and petition the government for the

16

redress of grievances, and to engage in group efforts toward those ends without interference

17

by the State. Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). Government action that

18

infringes upon these freedoms may take numerous forms, including action that seeks to

19

impose penalties or withhold benefits from individuals because of their membership in a

20

disfavored group, or trying to interfere with the internal organization of the group. See id.

21

(citing cases).

22

Freedom of Association

1.

Applicability of A.R.S. § 33-1381(B)

23

Plaintiffs argue that the presumption of a retaliatory eviction under A.R.S. § 33-

24

1381(B) operates to shift the burden on Plaintiffs’ freedom of association claim to

25

Defendants to prove that PHD’s attempted eviction was not retaliation for Plaintiffs’

26

involvement in the RC. (Doc. 182 at 6.) As noted by Defendants, however, Plaintiffs fail

27

to explain this argument or provide relevant case law establishing a connection between

28

the Arizona Residential Landlord and Tenant Act (“ARLTA”) and Plaintiffs’ federal

- 41 -

1

constitutional rights under the First Amendment. (Doc. 184 at 10.) Indeed, § 33-1381(B)

2

requires a complaint about a violation for the presumption to operate—membership in a

3

tenants’ union is not sufficient to establish presumption of a retaliatory eviction under the

4

clear language of the statute. A.R.S. § 33-1381(B). Regardless, because the Court finds no

5

remedy for alleged constitutional violations of a person’s freedom of association within the

6

scheme of the ARLTA, as discussed in Part IV.E, infra, the Court declines to apply a

7

presumption of retaliatory eviction in deciding whether this claim survives summary

8

judgment.

9

2.

Plaintiffs’ Right to Organize

10

Defendants argue that Plaintiffs’ freedom of association has not been meaningfully

11

inhibited by Defendants’ actions in disbanding the RC because Plaintiffs are “still free to

12

write letters to HUD, … gather with other tenants … and attempt to organize with other

13

tenants and make themselves heard by the PHD staff.” (Doc. 163 at 32.) Plaintiffs respond

14

that Defendants have continuously “impeded Plaintiffs’ right to organize through their

15

attempted evictions of Plaintiffs, the improper audit of Plaintiffs’ financial standing,

16

ignored work orders, and actively misleading the [HUD] to prevent oversight of their

17

actions.” (Doc. 182 at 4.) Defendants disagree, citing portions of the record to establish

18

that Defendants actions against Plaintiffs were based on Plaintiffs’ “personal behavior and

19

not their membership with the RC.” (Doc. 184 at 9.)

20

Plaintiffs assert that the attempted eviction in August 2018, coupled with statements

21

that Defendants made “when forming their decision to attempt to evict Plaintiffs”12 and the

22

eviction board’s eventual decision that eviction was unwarranted, demonstrate that “the

23

eviction was premised on a desire to impede Plaintiffs’ ability to organize and destroy the

24

[RC].” (Doc. 182 at 4–5.) Defendants contend that the evidence establishes that Plaintiffs’

25

eviction was solely because of Plaintiff Czyzewski’s confrontation with Ms. Magaard,

26

activity that is not subject to constitutional protection. (Doc. 184 at 9–10.) Additionally,

27
12

28

Plaintiffs refer to the statements that Defendants Fernandez and Bosshart made to the
police officers on June 21, 2018, that were captured on the police body camera footage,
which the Court analyzed at length in Part IV.C.2.ii.a, supra.
- 42 -

1

Plaintiffs assert that Defendants’ audit of Plaintiffs’ financial statements in February 2019

2

only occurred after Defendants attempted to evict Plaintiffs and evidenced their intent to

3

disband the RC, in a further attempt to prevent Plaintiffs from continuing to participate in

4

the RC. (Doc. 182 at 5–6.) In Defendants’ view, the financial audit was the result of

5

Plaintiffs’ failure to pay their rent on time and their inability to explain large deposits in

6

their bank account. (Doc. 184 at 11.) The Court has already addressed these arguments

7

above in Parts IV.C.2 and IV.C.3, respectively. Because Plaintiffs also attempt to use this

8

same evidence to establish retaliation for RC activism, apart from their protected speech,

9

the Court addresses those arguments here as well.

10

The Court finds that Plaintiffs have failed to establish a disputed issue of material

11

fact as to whether the attempted eviction or the financial audit were motivated by Plaintiffs’

12

involvement in the RC. The statements made by Defendants in deciding to evict Plaintiffs

13

do not rise to the level of a constitutional violation, for the reasons discussed in Part IV.C.2,

14

supra. Additionally, as previously discussed, there is evidence in the record of Plaintiffs’

15

repeated harassment of PHD staff and violations of PHD policies that would warrant the

16

adverse actions taken against them in order for PHD personnel to maintain a safe

17

environment at Fillmore Gardens. Nothing in the record suggests, even when viewed in the

18

light most favorable to Plaintiffs, that the eviction or the financial audit were motivated by

19

PHD’s desire to retaliate against Plaintiffs for their participation in the RC or curb their

20

ability to petition the government for redress. Notably, although Plaintiffs allege that PHD

21

took these actions against them solely because of their participation in the RC, Plaintiffs

22

admit that no adverse action was taken against Ms. Magaard due to their altercation at the

23

meeting. (See Doc. 182 at 5.) Indeed, there is no evidence in the record that any of the other

24

members of the RC were subject to any alleged retaliation for their involvement with the

25

RC. Finally, although Plaintiffs vaguely contend that their work orders were ignored in an

26

effort to retaliate against their involvement in the RC, Plaintiffs’ own exhibits provide

27

evidence establishing that Defendants actively responded to Plaintiffs’ work orders in a

28

timely fashion. (See Doc. 14 at 43–44) (email from Defendant Fernandez to Plaintiff

- 43 -

1

Bollfrass explaining the status of each work order request that Plaintiffs’ now claim were

2

ignored).

3

Additionally, the Court finds that Plaintiffs’ reliance on Carrera v. Yepez, 6 S.W.3d

4

654 (Tex. 1999) to support their argument is misplaced. Id. at 665. As Defendants note,

5

Plaintiffs misquote the holding of Carrera and instead point to a summary of the plaintiff’s

6

arguments addressing why summary judgment was not proper in that case. (See Doc. 182

7

at 6–7.) Moreover, Plaintiff includes several quotes from Carrera about what the court

8

there determined but does not sufficiently link any of those quotes to actual evidence here.

9

The available evidence of Defendants’ alleged retaliation in this case is sufficiently

10

different from that in Carrera such that the Court finds the case easily distinguishable and

11

declines to follow it.13

12

3.

Plaintiffs’ Notice of Claim

13

Plaintiffs hold up a March 7, 2019, letter from HUD stating that HUD has been

14

informed of Plaintiff’s lawsuit against PHD and as a result, “HUD will no longer be able

15

to intervene while this issue is resolved through litigation” as evidence that PHD was

16

interfering with Plaintiffs’ attempts to report violations to HUD. (Doc. 182 at 6.) According

17

to Plaintiffs, because the lawsuit was not filed until April 16, 2019, PHD lied to HUD about

18

the existence of a lawsuit to prevent HUD from responding to Plaintiffs’ October 23, 2018,

19

letter alleging that PHS discriminated against Plaintiffs and violated their First Amendment

20

rights. (Id.) Defendants point out that Plaintiffs submitted a Notice of Claim on December

21

20, 2018 which informed PHD of Plaintiff’s intent to initiate of a lawsuit prior to HUD’s

22

response letter in March 2019. (Doc. 163 at 33–34) (citing Doc. 163-2 at 493, 495).

23

Accordingly, the Court declines to give Plaintiff favorable inferences on this issue where

24

they are clearly contradicted by the record evidence. See Scott, 550 U.S. at 380.

25
26
13

27
28

For example, in Carrera, a former employee of the housing department testified to
repeated statements by the housing director that explicitly evidenced his desire to remove
persons from the residents’ council and get them evicted to prevent their participation.
Carrera, 6 S.W.3d at 657–59. Such evidence is not before this Court. Regardless, this
Court is not bound to follow decisions of the State of Texas Court of Appeals.
- 44 -

1

4.

HUD Regulations

2

Finally, Plaintiffs contend that Defendants acted to shut down the RC and prevent

3

future involvement in violation of Plaintiffs’ constitutional rights. (Doc. 136, ¶¶ 208–18.)

4

Plaintiffs reference a series of events that took place while they were both involved with

5

the RC. Beginning in November 2016, Plaintiff Bollfrass began to help organize a new RC

6

at Fillmore Gardens. (Doc. 163-3 at 12–17.) For the next six months, Plaintiffs worked

7

with PHD staff to form the RC. (Id. at 19–37.) On April 21, 2017, PHD entered into a

8

Memorandum of Understanding (“MOU”) to formally recognize the RC. (Id. at 45–57.)

9

Pursuant to the MOU, the RC agreed to abide by its by-laws and applicable federal

10

regulations governing RCs. (Id.)

11

Defendants argue that PHD properly acted to disband the RC based on its violation

12

of several mandatory HUD regulations, not because they wanted to retaliate against the RC

13

members. (Doc. 163 at 32–33.) Defendants further argue that the RC, as a recipient of

14

government funds, is uniquely situated such that the government is allowed to impose

15

regulations on its operation that may otherwise be inappropriate for non-government

16

funded entities. (Id.)

17

Plaintiffs’ Response fails to address Defendants’ arguments, and Defendants

18

contend that summary judgment is appropriate on those grounds based on Plaintiffs’

19

concession of these arguments. (Doc. 184 at 8–9.) Accordingly, the Court will only address

20

Defendants’ arguments briefly in the absence of rebuttal from Plaintiffs. See Tapestry,

21

2021 WL 1171504, at *14.

22

Defendants’ unrebutted evidence establishes that PHD was acting in accordance

23

with HUD regulations and the RC was effectively shut down after repeated failures to

24

comply with the rules. Drawing on Plaintiffs’ TAC, Plaintiffs point to a September 7, 2018

25

letter from Defendant Fernandez that Plaintiffs contend was a public attempt to scare

26

residents from participating in the RC. The letter, however, was in response to Plaintiff

27

Bollfrass’s emails that multiple RC members resigned, and that the RC has been using its

28

funds to host resident games. (Doc. 14 at 103.) Regarding the council members’

- 45 -

1

resignations, the letter details that for the RC “to remain operational,” there must be five

2

officers. (Id.) Because those resignations were “effective immediately,” the RC “was

3

potentially operating outside of the prescribed agreement, and therefore would not be

4

recognized as a duly-elected” RC. (Id.) The letter also requests that any elections for new

5

members be held in accordance with HUD regulations, because a failure to do so would

6

result in a required withdrawal of “recognition of the [RC]” and a withholding of “Resident

7

Participation funds.” (Id.) Additionally, the letter notes that HUD regulations and the MOU

8

require an accounting of Resident Participation funds and requests an audit of RC funds

9

because “[s]ocial and entertainment activities such as bingo and the distribution of funds

10

directly to residents,” as planned by the RC, “are not activities supported with Tenant

11

Participation Funding.” (Id. at 104.)

12

The Court finds that PHD’s response to the resignation of RC members and misuse

13

of funds would not lead a reasonable jury to conclude that PHD was attempting to shut

14

down the RC to prevent protected speech or otherwise discourage tenants’ from exercising

15

their First Amendment rights. Plaintiffs’ conclusory arguments are not enough to withstand

16

summary judgment on this issue where they fail to put forth credible evidence to raise a

17

disputed material fact. See Scott, 550 U.S. at 380.

18

At oral argument, Plaintiffs also pointed to a letter from Defendant Montgomery as

19

evidence that PHD violated their First Amendment rights by explicitly preventing them

20

from engaging in protected conduct as an RC, i.e., filing a lawsuit. The letter Plaintiffs’

21

reference, however, states:

22
23
24
25
26
27
28

An additional item mentioned in your letter concerns the
resident in unit #236 and your planned efforts of “filing a court
action” to “get him evicted.” A review of your resident file
demonstrates you were issued a Lease Violation Notice on
April 10, 2018, in part for calling this resident an expletive
while at a Tenant Council event in your capacity as President.
The Notice warned that harassing behavior violated the Model
Lease and Rules and Regulations. As a result, you wrote and
delivered a letter of apology to the resident on April 13, 2018.
Please be aware that your planned efforts described in your

- 46 -

1
2

letter could be considered further harassment and a violation of
the Lease.

3

(Doc. 14 at 70.) The Court finds that read in context, Defendant Montgomery’s words do

4

not raise a disputed issue of fact regarding whether his letter was intended to chill Plaintiffs’

5

ability to engage in constitutionally protected activity under the First Amendment. Instead,

6

the letter is further evidence that Plaintiff Bollfrass engaged in behavior that violated PHD

7

regulations in his capacity as president of the RC.

8
9

In the absence of additional evidence, the Court finds that summary judgment is
warranted on Plaintiffs’ freedom of association claim in favor of Defendants.

10

E.

11

Plaintiffs’ TAC alleges that Defendants violated the ARLTA, A.R.S. § 33-

12

1381(A)(1)-(4), by attempting to evict Plaintiffs after they complained to PHD and HUD

13

about conditions at Fillmore Gardens and became involved with the RC. (Doc. 136, ¶¶

14

232–36.)

15

State Law Retaliation Claim

Section 33-1381(A)(1)-(4) states:

16

[A] landlord may not retaliate by increasing rent or decreasing
services or by bringing or threatening to bring an action for
possession after … (1) [t]he tenant has complained to a
governmental agency charged with responsibility for
enforcement of a building or housing code of a violation
applicable to the premises materially affecting health and
safety; (2) [t]he tenant has complained to the landlord of a
violation under § 33-1324[14]; (3) [t]he tenant has organized or
become a member of a tenants’ union or similar organization;
[or] (4) [t]he tenant has complained to a governmental agency
charged with the responsibility for enforcement of the wageprice stabilization act.

17
18
19
20
21
22
23
24
25

If a landlord violates § 33-1381(A) by engaging in retaliatory conduct against the

26

tenant, the tenant may be entitled to the remedies enumerated in A.R.S. § 33-1367 (the

27

14

28

A.R.S. § 33-1324 provides, among other things, that the landlord shall comply with the
requirements of applicable building codes materially affecting health and safety, and that
the landlord shall make all repairs and do whatever is necessary to put and keep the
premises in a fit and habitable condition.
- 47 -

1
2
3
4
5
6
7

“remedies statute”). See A.R.S. § 33-1381(B). The remedies statute states:
If the landlord unlawfully removes or excludes the tenant from
the premises or willfully diminishes services to the tenant by
interrupting or causing the interruption of electric, gas, water
or other essential service to the tenant, the tenant may recover
possession or terminate the rental agreement and, in either
case, recover an amount not more than two months’ periodic
rent or twice the actual damages sustained by him, whichever
is greater….

8
9
10

A.R.S. § 33-1367. The parties dispute whether other civil remedies are available to
Plaintiffs under § 33-1381.

11

At the motion to dismiss stage, this Court found that Plaintiffs stated a plausible

12

claim for relief under the statute in view of their allegations that they had been ousted from

13

their property for two months pending eviction. (Doc. 90 at 35); (see also Doc. 57, ¶ 153)

14

(“As a result of the arrest Plaintiffs were forced out of their home at Fillmore Gardens for

15

approximately two months.”). The Court relied on Thomas v. Goudreault to find that § 33-

16

1381 provides a cause of action for tenants without a corresponding eviction if there is any

17

deprivation of a property interest, such that retaliatory damages were available to Plaintiffs

18

under § 13-1367 even though they were not actually evicted. (Id.) The Court noted,

19

however, that the Thomas court was not confronted with the issue of implied remedies

20

raised here. (Id.)

21

On summary judgment, Defendants argue that the Court erred by relying on Thomas

22

because it is contradicted by an Arizona Supreme Court case that explicitly addresses the

23

issue of implied remedies. (Doc. 163 at 37; Doc. 184 at 17.) Defendants point to Schaefer

24

v. Murphey, which held that a plaintiff must establish “an unlawful ouster” to be eligible

25

for remedies under § 33-1367, and retaliatory conduct asserted under § 33-1381 is not

26

enough in the absence of actual ouster. 640 P.2d 857, 861 (Ariz. 1982) (“Despite the

27

availability of corresponding remedies under the unlawful ouster and retaliatory conduct

28

statutes, they are not equivalent since both provisions proscribe different conduct.”).

- 48 -

1

Additionally, Defendants point out that other than the allegations in Plaintiffs’ TAC that

2

they were “forced out of their home at Fillmore Gardens for approximately two months”

3

following Plaintiff Czyzewski’s arrest until the PHD Grievance Panel overturned the

4

eviction notice (see also Doc. 57, ¶ 153), Plaintiffs have failed to bring forward any

5

evidence that they were actually prevented from accessing their apartment pending the

6

eviction proceedings, (Doc. 163 at 37–38.)

7

The Court agrees with Defendants that Schaefer is controlling here. Plaintiffs’

8

Response fails to address Defendants’ argument on this point, instead arguing that “the

9

Court already rejected this argument in denying Defendants’ Motion to Dismiss.” (Doc.

10

182 at 11.) The Court notes, as discussed above, that the standards are different for motions

11

to dismiss and motions for summary judgment. At this stage, the Court has been presented

12

with evidence from both parties and does not rely solely on the assertions in Plaintiffs’

13

complaint. Moreover, the non-moving party must produce affirmative evidence to rebut

14

the moving party’s motion to withstand summary judgment. Liberty Lobby, Inc., 477 U.S.

15

at 257. Plaintiffs fail to present any additional evidence to rebut Defendants’ assertion that

16

they were not actually deprived of access to their apartment prior to the eviction

17

proceedings.

18

Thus, the Court finds that Defendants have met their burden to establish that there

19

are no remaining disputed issues of fact as to whether Plaintiffs were subject to an unlawful

20

ouster that would entitle them to remedies under §§ 33-1381 and 33-1367. Thus, the Court

21

finds that Plaintiffs have not established entitlement to remedies for state law retaliation as

22

a matter of law.

23

Because the Court grants Defendants’ Motion for Summary Judgment on Plaintiffs’

24

state law retaliation claim, the Court need not address whether Plaintiff is entitled to a

25

presumption of retaliation for its state law claim under the same statute.

26

F.

Monell Claims

27

Plaintiffs assert Monell claims based on “grossly inadequate training and/or because

28

of acts directly from and/or directed by Housing Director Cindy Stotler, Deputy Housing

- 49 -

1

Director William Emmerson and Housing Manager Veronica Grittman, all of whom are

2

policy makers.” (Doc. 182 at 18.) Plaintiffs also appear to assert a Monell claim based on

3

Plaintiff Czyzewski’s arrest. (Doc. 136, ¶¶ 216–29; Doc. 182 at 21.)

4

Defendants argue that they are entitled to summary judgment on the Monell claims

5

based on PHD employee conduct because Plaintiffs have not established that any of the

6

individual defendants are “final policymakers” under Arizona law, or shown any evidence

7

of an unconstitutional PHD policy that was applied to them. (Doc. 163 at 41.) Defendants

8

also argue that Plaintiffs’ Monell claim based on Plaintiff Czyzewski’s arrest fails because

9

Plaintiffs have not produced evidence of “an official and premeditated policy of

10

intimidation [] enacted to retaliate against” Plaintiff’s prior protected speech. (Doc. 163 at

11

42.) Defendants also note that Plaintiffs failed to raise any failure to train claims related to

12

Plaintiff Czyzewski’s arrest in their TAC. (Doc. 184 at 6.)

13

1.

Legal Standard

14

To succeed under Monell, Plaintiffs “must show that their injury was caused by a

15

municipal policy or custom.” Los Angeles County v. Humphries, 562 U.S. 29, 30–31

16

(2010). A municipal policy is “a deliberate choice to follow a course of action … by the

17

official or officials responsible for establishing final policy with respect to the subject

18

matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). There are

19

three ways that a municipal entity may be held liable under Monell: (1) when the entity

20

acts “pursuant to an expressly adopted policy;” (2) when there is a “longstanding practice

21

or custom,” including a failure “to implement procedural safeguards to prevent

22

constitutional violations” or to adequately train its employees; and (3) “when the individual

23

who committed the constitutional tort was an official with final policy-making authority or

24

such an official ratified a subordinate’s unconstitutional decision or action and the basis

25

for it.” Gordon v. County of Orange, 6 F.4th 961, 973–74 (9th Cir. 2021) (quotations and

26

citations omitted).

27
28

- 50 -

1
2

2.

PHD Directors
i.

Final Policy Makers

3

Plaintiffs contend that there are disputed issues of fact regarding whether

4

Defendants Grittman (Housing Manager), Montgomery (Deputy Director), and Emmerson

5

(Housing Director) constitute final policymakers, such that their actions toward Plaintiffs,

6

or the actions of their subordinates, would establish Monell liability. (Doc. 182 at 18.)

7

Because this Court must look to Arizona law to determine whether a municipal

8

employee is a final policymaker, Sabra v. Maricopa Cnty. Comm. Coll. Dist., --- F.4th ---,

9

No. 20-16774, 2022 WL 3222451 (9th Cir. 2022), Defendants argue that Arizona law

10

clearly precludes a finding that any of the individual defendants are final policymakers for

11

PHD or the City of Phoenix. (Doc. 163 at 42.) Defendants rely on Phoenix City Code Ch.

12

2 Art. 10 § 2-178 and Puente v. City of Phoenix, No. CV-18-02778-PHX-JJT, 2022 WL

13

357351 (D. Ariz. Feb. 7, 2022).

14

Under the City Code, the Assisted Housing Governing Board (“AHGB”) is the

15

designated body tasked with establishing “operating policies for assisted housing facilities

16

and services within and without the City as the developing assisted housing needs may

17

require.” Phoenix City Code Ch. 2 Art. 10 § 2-178(A)(2). The AHGB consists of the

18

Mayor, the City Council members, and “a recipient of assisted housing benefits.” Id. § 2-

19

176. The Housing Director’s only role with respect to the AHGB is to appoint the board

20

member who receives assisted housing benefits. See id. No other housing department

21

employees are mentioned in the City Code. Further, the City of Phoenix Charter vests final

22

policymaking authority with the City Manager, the City Council, and the Mayor. See

23

Phoenix City Charter, Ch. III §§ 1, 2; see also Puente, 2022 WL 357351, at *16.

24

Plaintiffs respond, without explanation, that “the Public Housing Director and/or

25

Housing Manager in this case is equivalent of the City Manager and its relation to the

26

Assisted Housing Board.” (Doc. 195 at 2.) The Court finds that, in view of the City Charter

27

and City Code clearly vesting policymaking authority with the AHGB for assisted housing

28

specifically, and the City Manager, for the City of Phoenix generally, this argument lacks

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1

merit.

2

Plaintiffs have not alleged that anyone with actual final policy-making authority

3

committed a constitutional violation against them, nor have they alleged that any of those

4

persons “ratified a subordinate’s unconstitutional decision or action and the basis for it.”

5

See Gordon, 6 F.4th at 974. Pointing to the conduct of the Housing Director or Housing

6

Manager is not enough to attach liability to the City of Phoenix or PHD without evidence

7

that their conduct was ratified by the final policymakers for those entities. Therefore,

8

Defendants are entitled to summary judgment on this issue.

9

ii.

Longstanding Practice or Custom

10

Plaintiffs argue that “PHD engage[d] in a pattern and policy of retaliation and

11

harassment against Plaintiffs” to stifle the exercise of their First Amendment rights,

12

including two attempted evictions, a financial audit, and public discouragement of RC

13

participation. (Doc. 182 at 20.) In Plaintiffs’ view, the extensive nature of PHD employees’

14

conduct constituted an official policy of retaliation against Plaintiffs, such that an official

15

policymaker’s action is not required to attach Monell liability to PHD and the City of

16

Phoenix. (Id. at 21.) A plausible reading of Plaintiffs’ TAC and Response suggests that

17

Plaintiffs intend to assert an argument under the “longstanding practice or custom” prong,

18

including a claim for failure to train PHD employees, and not the “pursuant to an expressly

19

adopted policy” prong.15

20

Defendants argue that Plaintiffs have not identified any evidence that such a policy

21

caused a constitutional violation. (Doc. 163 at 41.) Instead, Defendants rely on deposition

22

testimony and emails from PHD in the record for their contention that PHD actively

23

encouraged Plaintiffs’ lease violation reports and formation of the RC. (Id.)

24

“Establishing municipal liability through the existence of longstanding practice or

25

custom is predicated ‘on the theory that the relevant practice is so widespread as to have

26

the force of law.’” Sabra, 2022 WL 3222451, at *11 (quoting Bd. of Comm’rs v. Brown,

27

15

28

To the extent that Plaintiffs’ Response to Defendants’ Notice of Supplemental Authority
attempts to argue for the first time that PHD’s policies and regulations expressly prohibit
First Amendment rights or are otherwise facially unconstitutional, such an argument is
waived for Plaintiffs’ failure to timely raise it. (See Doc. 197 at 2.)
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1

520 U.S. 397, 404 (1997)). “Plaintiffs cannot allege a widespread practice or custom based

2

on ‘isolated or sporadic incidents; [liability] must be founded upon practices of sufficient

3

duration, frequency, and consistency that the conduct has become a traditional method of

4

carrying out policy.’” Id. (quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)); see

5

Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional deprivation

6

ordinarily is insufficient to establish a longstanding practice or custom.”). Moreover,

7

Plaintiffs must prove that “the policy is the moving force behind the constitutional

8

violation.” Gordon, 6 F.4th at 973.

9

Although Plaintiffs allege that various PHD employees have harmed them, they fail

10

to present credible evidence that PHD or its policymakers, as discussed above, have a

11

“permanent and well settled policy” of First Amendment retaliation sufficient to rebut other

12

evidence in the record that PHD and its staff followed official PHD regulations pertaining

13

to tenant lease violations and RC operations and actively encouraged residents to report

14

lease violations and participate in the RC. (See Doc. 163-2 at 9–11, 420–22, 426–48.);

15

Liberty Lobby, Inc., 477 U.S. at 252 (holding that the “mere existence of a scintilla of

16

evidence in support of the plaintiff’s position will be insufficient; there must be evidence

17

on which the jury could reasonably find for the plaintiff”). Plaintiffs have alleged no more

18

than “isolated or sporadic incidents” insufficient to establish Monell liability at this stage

19

without additional evidence for a reasonable jury to infer that such conduct was widespread

20

throughout PHD. See Trevino, 99 F.3d at 918.

21

iii.

Failure to Train

22

Monell liability may attach to an entity if it “fails to implement procedural

23

safeguards to prevent constitutional violations” or “fails to train its employees adequately.”

24

Trevino, 99 F.3d at 918. Other than a conclusory statement in its Response that “Monell

25

liability has been established … through the grossly inadequate training” by Defendants

26

Stotler, Emmerson, and Grittman (Doc. 182 at 18), and a heading in the TAC that includes

27

“Failure to Train,” Plaintiffs only allegations relating to Monell liability for failure to train

28

are that “Defendants [Stotler, Emmerson, Montgomery, Grittman, Fernandez, Hogan, and

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Bosshart] … have oversight and supervisory responsibility over … the proper screening,

2

hiring, training, retaining, and supervision of the officers, employees, and agents with

3

responsibility.” (Doc. 136 at 44.) Plaintiffs’ own Partial Motion for Summary Judgment

4

does not address their Monell claims or cite to any evidence pertaining to Defendants’

5

alleged failure to train.

6

In Plaintiffs’ Response to Defendants’ Notice of Supplemental Authority, Plaintiffs

7

vaguely argue that “there are several instances throughout the record the [sic] demonstrate

8

the utter incompetence of the Defendants’ comprehension of rights protected by the First

9

Amendment to the point that they were caught on camera conspiring with police to violate

10

the same.” (Doc. 197 at 2.) As discussed above in Part IV.C.2, supra, however, the Court

11

has reviewed the body camera footage transcript that Plaintiffs reference and does not find

12

a disputed issue of material fact as to whether those statements rose to the level of a

13

constitutional violation or conspiracy to commit the same. Plaintiffs fail to explain what

14

other evidence shows an obvious need for PHD employee training on First Amendment

15

protections. Plaintiffs additionally assert that they are entitled to summary judgment on this

16

issue “considering there is no evidence of any training in the record with regard to First

17

Amendment protections.” (Doc. 197 at 2.) The Court finds that such a conclusory argument

18

lacks merit without Plaintiffs’ explanation as to whether they attempted to discover any

19

such evidence.

20

Thus, the Court finds that summary judgment in favor of Defendants is warranted

21

in the absence of evidence related to any PHD employee training, or lack thereof, or

22

evidence of other conduct within PHD similar to the constitutional violations alleged here.

23

On the record before the Court, “Plaintiffs do not provide sufficient evidence from which

24

a reasonable jury could find that ‘the need for more or different training [was] so obvious,

25

and the inadequacy so likely to result in the violation of constitutional rights, that the

26

policymakers of the city can reasonably be said to have been deliberately indifferent to the

27

need.’” Puente, 2022 WL 357351, at *17 (quoting City of Canton v. Harris, 489 U.S. 378,

28

390 (1989)).

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3.

Plaintiff Czyzewski’s Arrest

2

Defendants argue that Plaintiffs’ claim for retaliatory arrest fails under Lozman v.

3

City of Riviera Beach, --- U.S. ---, 138 S.Ct. 1945 (2018), because Plaintiffs failed to

4

present evidence that a “secret premediated arraignment agreed to by high-ranking

5

officials” led to Plaintiff Czyzewski’s arrest. (Doc. 163 at 42.)

6

Plaintiffs assert that Plaintiff Czyzewski was arrested because of his RC

7

participation in violation of his First Amendment right to organize. (Doc. 182 at 21.)

8

According to Plaintiffs, the City of Phoenix is liable because it failed to train the arresting

9

officers on discrimination and the First Amendment. (Id.) In support of their position,

10

Plaintiffs cite to the depositions of the arresting officers, Martin and McAbee, where they

11

express uncertainty about the application of the First Amendment right to organize to their

12

authority to make arrests. (Doc. 182 at 21.)

13

In reply, Defendants note that Plaintiffs attempt to assert a failure to train argument

14

for the first time in their response brief, and that Plaintiffs did not assert such a claim in

15

their TAC. (Doc. 184 at 6.) Defendants also contend that Plaintiffs Response fails to

16

address Defendants’ retaliatory arrest arguments, such that they are waived. (Id.)

17

The Court finds that Plaintiffs have failed to establish a disputed issue of fact under

18

either theory. Under Lozman, Plaintiffs have not raised a disputed issue of fact as to

19

whether Plaintiff Czyzewski’s alleged wrongful arrest was due to “an official policy

20

motivated by retaliation,” because, as discussed above, the Court finds that Plaintiff

21

Czyzewski’s arrest (and corresponding eviction) was a result of his altercation with Ms.

22

Magaard, not because he engaged in protected speech. See supra, Part IV.C.2; see also

23

Lozman, --- U.S. ---, 138 S.Ct. at 1948 (remanding for the lower court to determine

24

“whether, under Mt. Healthy, the City has proved that it would have arrested Lozman

25

regardless of any retaliatory animus”). Regarding the newly asserted failure to train claim,

26

Plaintiff have not alleged that the City of Phoenix’s failure to train these two police officers

27

“amount[s] to the local government’s own official policy” of not training any officers on

28

First Amendment rights or a widespread training deficiency within the Phoenix Police

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Department. See Alexander v. City & Cnty. of San Francisco, 29 F.3d 1355, 1367 (9th Cir.

2

1994) (granting summary judgment on a failure to train claim because the plaintiff did not

3

“allege a program-wide inadequacy in training”).
Thus, the Court grants Defendants’ Motion for Summary Judgment regarding

4
5

Plaintiffs’ Monell claims based on Plaintiff Czyzewski’s arrest.

6

G.

7

Defendants argue that Plaintiffs are not entitled to punitive damages under state or

8

federal law. (Doc. 163 at 43.) Because the Court finds no disputed issues of fact remain

9

and grants Defendants’ Motion for Summary Judgment on all counts, the Court declines to

10

Punitive Damages

address Plaintiffs’ entitlement to punitive damages.

11

H.

Conclusion

12

Based on the above reasoning, the Court grants Defendants’ Motion for Summary

13

Judgment in its entirety.

14

V.

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

15

Plaintiffs filed a Motion for Partial Summary Judgment seeking resolution on three

16

issues: (A) Plaintiff Czyzewski’s due process rights; (B) collateral estoppel regarding

17

Plaintiffs’ eviction hearing; and (C) Defendants’ alleged First Amendment retaliation

18

against Plaintiffs. (Doc. 165.)

19

A.

20

Plaintiffs seek summary judgment on whether Defendants violated Plaintiff

21

Czyzewski’s due process rights by terminating his RA position without notice and without

22

a hearing. (Doc. 165 at 16.) Each of Plaintiffs’ arguments in their Motion were considered

23

and discussed in Part IV.B, supra, regarding Defendants’ Motion for Summary Judgment.

24

As discussed, Defendants are entitled to summary judgment on Plaintiffs’ due process

25

claim because Plaintiff Czyzewski did not have a constitutionally protected interest in the

26

continuation of his at-will employment relationship. Thus, the Court denies summary

27

judgment in favor of Plaintiffs on this issue.

Procedural Due Process

28

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B.

2

Plaintiffs argue that Defendants are collaterally estopped from disputing any of the

3

facts established by the PHD Grievance Panel during Plaintiffs’ eviction hearing. (Doc.

4

165 at 17.) According to Plaintiffs, because the Grievance Panel was acting in a judicial

5

capacity and gave both parties “an adequate opportunity to litigate these factual issues

6

before the Board,” Defendants should be collaterally estopped from refuting the facts

7

contained in the Independent Hearing Officer’s (“IHO”) Hearing Decision. (Id. at 18–19.)

8
9
10
11
12
13
14
15
16
17
18
19
20
21

Collateral Estoppel

The Hearing Decision recites the following “Summary of the Evidence”:
On June 21, 2018, [a] Fillmore Gardens Manager’s meeting
was held in the community room at 2:15 pm.
Hearing Testimony: A verbal altercation occurred before the
meeting started involving residents Frank Czyzewski and
Donna Magaard. Three residents who attended the meeting
testified under oath at the formal hearing to the following facts:
Ms. Magaard started the altercation by banging the table and
telling Mr. Gerald Bollfrass to “shut up”. Mr. Czyzewski then
told Ms. Magaard to “shut up” and both rose from the table and
confronted each other from a distance of two feet. Mr.
Czyzewski made fists during the confrontation. Ms. Dina
Fernandez, Housing Supervisor, who attended the meeting told
them to “stop” and Ms. Magaard left the room. Mr. Czyzewski
apologized to those at the meeting. Ms. Magaard did not appear
frightened but appeared aggressive. Ms. Magaard notified the
police and Mr. Czyzewski was arrested. Mr. Czyzewski and
Mr. Bollfrass, through their attorney presented a series of email
from them to Housing Department management and an agenda
for an Emergency Board meeting dated April 20, 2018[.]

22
23
24
25
26
27
28

The City Housing Department presented an incident report and
typed statement prepared by Donna Magaard, two incident
reports from residents, an incident report from Housing
Department staff, and a letter from the Project Manager of the
Arizona Fair Housing Center. The City Housing Department
also presented a narrative from a police officer called to the
scene by Ms. Magaard. The written account provided by the
City related [sic] a different set of facts, with Mr. Czyzewski
as the aggressor who prevented Ms. Magaard from leaving.
The City did not present any witnesses at the formal hearing.
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(Doc. 14 at 93–94.) Regarding the Panel’s decision, the Hearing Decision states: “[t]he

2

Panel found that both Ms. Magaard and Mr. Czyzewski were at fault and that Ms. Magaard

3

initiated the altercation.” (Id. at 94.) Plaintiffs seek to rely on the IHO’s recitation of facts

4

and the Panel’s findings in the Hearing Decision to support their argument that the 30-day

5

eviction notice issued to Plaintiffs was Defendants’ pretextual attempt to retaliate against

6

Plaintiffs for protected speech. (Doc. 165 at 20.)

7

Defendants respond that the doctrine of collateral estoppel does not apply because

8

Plaintiffs have waived it or, in the alternative, Plaintiffs have failed to establish each

9

element of collateral estoppel. (Doc. 175 at 1–2.)

10

1.

Waiver

11

The parties dispute whether Plaintiffs waived their collateral estoppel argument by

12

raising it for the first time on summary judgment. Defendants assert waiver because

13

Plaintiffs failed to raise their collateral estoppel theory in their Mandatory Initial Discovery

14

Responses (“MIDRs”) or at the motion to dismiss stage. (Id. at 11.) Because this case is

15

subject to the Mandatory Initial Discovery Pilot, the parties are required to provide relevant

16

facts and underlying legal theories for each claim and defense raised. Gen. Order 17-08 at

17

2. Plaintiffs’ First Supplemental MIDRs reference “[a]ll persons present at and who

18

testified at,” “[a]ll documents used by PHD at,” and the partial recording of Plaintiffs’

19

formal eviction hearing. (Doc. 175-2 at 10–11.) Moreover, Plaintiffs’ MIDRs refer to

20

Plaintiffs’ Third Amended Complaint, which contains seven paragraphs detailing

21

Plaintiffs’ version of the facts surrounding the eviction hearing and what the board decided

22

there. (Doc. 136, ¶¶ 162–68.) Defendants do not identify any facts that Plaintiffs rely on

23

that are not included in Plaintiffs’ MIDRs or the documents cited therein. Thus, the Court

24

declines to find waiver on this basis.

25

Defendants also argue that Plaintiffs waived their estoppel argument because the

26

factual findings from the eviction hearing are inconsistent with the facts as stated in the

27

police report, which Plaintiff Czyzewski expressly admitted to when he entered his

28

dismissal plea. (Doc. 175 at 11.) According to Defendants, Heck v. Humphrey, 512 U.S.

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1

477 (1994), prevents Plaintiffs from asserting the facts determined at the eviction hearing

2

in their lawsuit because they are inconsistent with the underlying factual basis for Plaintiff

3

Czyzewski’s plea. However, the Court agrees with Plaintiffs that Defendants’ attempts to

4

apply the Heck standard here fall short because the facts found in the eviction hearing and

5

those admitted in Plaintiff Czyzewski’s guilty plea are not inconsistent. (Compare Doc. 14

6

at 93–94 with Doc. 182-2 at 136–43.) Accordingly, the Court is not persuaded to find that

7

Plaintiffs waived their argument for collateral estoppel.

8

2.

Application of Collateral Estoppel

9

Defendants argue that application of collateral estoppel is not appropriate here

10

because Arizona law precludes application of collateral estoppel in these circumstances,

11

and, alternatively, that Plaintiffs have failed to establish all of the necessary elements. (Doc.

12

175 at 1–2.)

13

i.

Legal Standard

14

“Issue preclusion, or collateral estoppel, precludes relitigation of an issue already

15

litigated and determined in a previous proceeding between the same parties.” Pike v.

16

Hester, 891 F.3d 1131, 1138 (9th Cir. 2018). As the parties asserting collateral estoppel, it

17

is Plaintiffs’ burden to prove all necessary elements of that defense. Ctr. for Biological

18

Diversity v. Zinke, 399 F.Supp.3d 940, 945 (D. Ariz. 2019). “When an administrative

19

agency [acts] in a judicial capacity and resolves disputes of fact properly before it which

20

the parties have had an adequate opportunity to litigate, the courts have not hesitated to

21

apply res judicata to enforce repose.” United States v. Utah Constr. & Mining Co., 384

22

U.S. 394, 422 (1966); see also Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d

23

755, 758 (9th Cir. 1988) (quotations omitted). The Court is required to “give state court

24

judgments the preclusive effect that those judgments would enjoy under the law of the state

25

in which the judgment was rendered.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 993

26

(9th Cir. 2001).

27
28

ii.

Collateral Estoppel Under Arizona Law

Here, the eviction proceeding was held by a PHD Grievance Panel, and thus this

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Court must apply Arizona law. Defendants contend that in Arizona, collateral estoppel is

2

not applied to agency decisions where its application would result in manifest injustice.

3

(Doc. 175 at 14.) Plaintiffs fail to provide a substantive reply and did not address this issue

4

during oral argument, even after Defendants raised their argument again and explained the

5

supporting law. (See Doc. 183 at 8.) Thus, in the absence of rebuttal arguments or

6

contradictory case law interpretations from Plaintiff, the Court agrees with Defendants and

7

finds that the application of collateral estoppel here would be unjust, as explained below.

8

Arizona generally endorses a “broad” and “expansive application of preclusion

9

principles,” and Arizona courts give “decisions of administrative agencies acting in quasi-

10

judicial capacity” preclusive effect. Hawkins v. Dep’t of Econ. Sec., 900 P.2d 1236, 1239–

11

40 (Ariz. Ct. App. 1995); see also Perez v. Curcio, 710 F.Supp. 259, 264–65 (D. Ariz.

12

1989). “Principles of issue preclusion should not be applied, however, where ‘there is some

13

overriding consideration of fairness to a litigant, which the circumstances of the particular

14

case would dictate.’” Ferris v. Hawkins, 660 P.2d 1256, 1258 (Ariz. Ct. App. 1983)

15

(quoting Di Orio v. City of Scottsdale, 408 P.2d 849, 852 (Ariz. 1965)). Collateral estoppel

16

must not be “rigidly applied,” and “must be qualified or rejected where [its] use would

17

contravene an overriding public policy or result in manifest injustice.” Id. at 1259

18

(quotations omitted).

19

Neither party has cited to a case applying collateral estoppel in the specific context

20

of a city housing board’s eviction hearings and the Court is not independently aware of

21

any. However, Plaintiffs’ Motion cites to Perez v. Curcio and Defendants rely on Ferris v.

22

Hawkins, both of which are instructive.

23

In Ferris, the Arizona Court of Appeals surveyed several decisions from various

24

other jurisdictions deciding whether to apply collateral estoppel to state administrative

25

agency determinations in subsequent litigation. 660 P.2d at 1258–60. The Ferris court was

26

persuaded by the reasoning that where the prior adjudication involved “distinct and

27

separate” rights and remedies from those being litigated in the subsequent case, collateral

28

estoppel should not be applied to bar parties from achieving “a full and fair opportunity to

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1

independently present their respective claims in each forum.” Id. at 1260. In so doing, the

2

Ferris court rejected the strict application of collateral estoppel applied in other

3

jurisdictions. Id.

4

In Perez, this Court declined to apply collateral estoppel to a City of Phoenix Civil

5

Service Board determination that the plaintiff was fired for good cause in plaintiff’s

6

subsequent action for breach of her employment contract based on wrongful termination.

7

710 F.Supp. at 265. Perez reasoned that even though an essential element to plaintiff’s

8

breach of contract claim was the cause of her termination, her lawsuit alleged that age

9

discrimination led to her termination and “absolutely no evidence was presented on the

10

issue of age discrimination and there were no findings of fact on this issue” at the Board

11

hearing level. Id. Therefore, Perez held that the plaintiff did not have “an adequate

12

opportunity to litigate the factual issues central to her breach of contract claim before the

13

Civil Service Board” so the resulting decision should not be given preclusive effect. Id.

14

Here, the Court declines to apply collateral estoppel because the Panel did not

15

actually litigate the issues in this action. Instead, the Panel was tasked with determining a

16

narrow issue—whether Plaintiffs’ June 21, 2018 altercation with Ms. Magaard warranted

17

their eviction. (See Doc. 14 at 94.) The Grievance Panel was not asked to determine

18

whether there were any constitutional violations or retaliation against Plaintiffs. See Ferris,

19

660 P.2d at 1259. Based on this record, it does not appear that Plaintiffs raised any

20

constitutional issues at all during the eviction hearing.16

21

The Court finds that if it were to apply collateral estoppel to bar Defendants from

22

presenting evidence related to their defenses to Plaintiffs’ First Amendment claims,

23

“manifest injustice” would result because Defendants would be deprived of any

24

opportunity to litigate those defenses. See Ferris, 660 P.2d at 1259 (declining to apply

25

collateral estoppel where the two actions involved “distinct legal rights” and remedies).

26

16

27
28

Although the Hearing Decision also states that “Mr. Czyzewski and Mr.
Bollfrass . . . presented a series of emails from them to Housing Department management
and an agenda for an Emergency Board meeting dated April 20, 2018,” neither the Hearing
Decision nor Plaintiffs’ briefing explain the relevance of these documents or why they were
submitted to the Grievance Panel, and the Court declines to speculate on Plaintiffs’
intentions for presenting those documents. (See Doc. 14 at 94.)
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1

The eviction hearing was not a proper forum for the parties to litigate their present dispute

2

even though some of the underlying factual issues are common with those in this case. See

3

Garner v. Giarrusso, 571 F.2d 1330, 1336 (5th Cir. 1978) (finding that a civil service

4

commission was not a “competent forum” to resolve the parties federal employment

5

discrimination claims). Moreover, not all the named defendants in this case were parties to

6

the eviction hearing, and Plaintiffs fail to explain why their interests were fairly represented

7

at the eviction hearing in their absence. Because the Court finds that Plaintiffs failed to

8

establish that application of collateral estoppel would be appropriate under Arizona law,

9

the Court need not reach the elements of the test for collateral estoppel.

10

C.

11

Plaintiffs seek summary judgment on whether Defendants retaliated against

12

Plaintiffs for “advocating for the tenants at Fillmore Gardens” in violation of the First

13

Amendment. (Doc. 165 at 19–20.) Each of Plaintiffs’ arguments (and each of Defendants’

14

corresponding qualified immunity arguments) was considered and discussed above in Parts

15

IV.A, IV.B, IV.C, and IV.D, regarding Defendants’ Motion for Summary Judgment. As

16

discussed therein, Defendants are entitled to summary judgment on Plaintiffs’ First

17

Amendment retaliation and freedom of association claims. Thus, the Court denies

18

Plaintiff’s Partial Summary Judgment Motion on this issue.

First Amendment

19

D.

20

For the foregoing reasons, the Court denies Plaintiffs’ Partial Motion for Summary

Conclusion

21

Judgment in its entirety.

22

VI.

CONCLUSION

23

Accordingly,

24

IT IS ORDERED THAT Defendants’ Motion for Summary Judgment (Doc. 163,

25
26
27
28

sealed, Doc. 164, unsealed) is GRANTED, as set forth above.
IT IS FURTHER ORDERED THAT Plaintiffs’ Motion for Partial Summary
Judgment (Doc. 165) is DENIED.
IT IS FURTHER ORDERED THAT the Clerk of Court shall enter judgment in

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1

favor of Defendants on all claims and close this case.

2

Dated this 16th day of September, 2022.

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