United States of America v. Colorado City, Town of et al

Filing 618

ORDER denying 541 Plaintiff's Motion for Partial Summary Judgment and granting in part and denying in part 544 Colorado City's Motion for Summary Judgment. The motion is granted as to plaintiff's request for Count II damages on behalf of Isaac Wyler, Willie R. Jessop, and Ross and Lori Chatwin. Plaintiff is precluded from requesting FHA damages from any defendant on behalf of these aggrieved persons, should plaintiff prevail on its FHA claims in Count II. Colorado City 's motion is otherwise denied. IT IS FURTHER ORDERED granting in part and denying in part 548 the Hildale defendants' Motion for Partial Summary Judgment. The motion is granted as to TCP. Plaintiff's claims against TCP are dismiss ed with prejudice. The motion is also granted as to plaintiff's request for FHA damages from TCWA on behalf of Dan Wayman. Plaintiff is precluded from seeking FHA damages from TCWA on behalf of Dan Wayman. The Hildale defendants' motion is otherwise denied. Signed by Judge H Russel Holland on 06/17/15. (ATD)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
TOWN OF COLORADO CITY, ARIZONA,
)
et al.,
)
)
Defendants.
)
__________________________________________)

No. 3:12-cv-8123-HRH
(Prescott Division)

ORDER
Motions for Partial Summary Judgment
Plaintiff moves for partial summary judgment.1

This motion is opposed.2

Defendants move for partial summary judgment.3 These motions are opposed.4 Oral
argument was requested and has been heard.

1

Docket No. 541.

2

Docket Nos. 560 & 562.

3

Docket Nos. 544 & 548. In addition to filing a separate motion for partial summary
judgment, the Hildale defendants join in Colorado City’s motion for partial summary
judgment. See Docket No. 548 at 1, n.1.
4

Docket No. 559 & 564.
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Facts
Plaintiff is the United States of America. Defendants are the Town of Colorado City,
Arizona; the City of Hildale, Utah; Twin City Power (TCP); and Twin City Water
Authority, Inc. (TCWA).5
Plaintiff alleges that “[d]efendants have engaged in a pattern or practice of illegal
discrimination against individuals who are not members of the Fundamentalist Church of
Jesus Christ of Latter-day Saints (‘FLDS’).”6 Plaintiff alleges that defendants “have acted
in concert with FLDS leadership to deny non-FLDS individuals housing, police protection,
and access to public space and services.”7 Plaintiff further alleges that the Cities’ joint
police department, the Colorado City Marshal’s Office (CCMO), “has inappropriately used
its state-granted law enforcement authority to enforce the edits of the FLDS, to the
detriment of non-FLDS members.”8
In Count I of its complaint, plaintiff asserts a claim under the Violent Crime Control
and Law Enforcement Act of 1994, 42 U.S.C. § 14141, against the Cities. Plaintiff alleges
that the Cities

5

Colorado City and the City of Hildale are referred to collectively as “the Cities.”
Hildale, TCP, and TCWA are referred to collectively as “the Hildale defendants.”
6

Complaint at 2, ¶ 4, Docket No. 1.

7

Id. (footnote omitted).

8

Id. at 3, ¶ 4.
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engaged in and continue to engage in a pattern and practice of
conduct that deprives persons of rights, privileges, or immunities secured or protected by the First, Fourth, and Fourteenth
Amendments to the United States Constitution and the laws of
the United States.[9]
In Count II of its complaint, plaintiff asserts a single claim brought pursuant to §
3614(a) of Fair Housing Act (FHA), which “prohibits various forms of discrimination in the
sale or rental of housing[.]”10 United States v. Balistrieri, 981 F.2d 916, 927 (7th Cir. 1992).
Plaintiff alleges that all four defendants have engaged in a pattern and practice of violating
Sections 3604(a), 3604(b), and 3617 of the FHA11 and that their conduct constituted “[a]
denial to a group of persons rights granted by the Fair Housing Act, which raises an issue
of general public importance, in violation of the Fair Housing Act, 42 U.S.C. § 3614(a).”12
More specifically, plaintiff alleges that defendants “have, since approximately 2008, denied
or unreasonably delayed water and electric service to non-FLDS individuals, refused to
issue them building permits, and otherwise prevented non-FLDS individuals and the

9

Id. at 15, ¶ 55.

10

“Section 3614(a) provides that the Attorney General may bring a civil action to
enforce the Fair Housing Act whenever he ‘has reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of resistance to the full and equal
enjoyment of the rights secured by [the Act] or that any group of persons has been denied
any of the rights granted by this subchapter and such denial raises an issue of general
public importance....’” Balistrieri, 981 F.2d at 927 (quoting 42 U.S.C. § 3614(a)).
11

Complaint at 16, ¶ 58, Docket No. 1.

12

Id. at ¶ 59.
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Trust[13] from constructing new housing or occupying existing housing[.]”14 Plaintiff
alleges that the Cities and TCWA denied non-FLDS individuals’ requests for new water
service and that the Cities denied building permits to non-FLDS members due to a water
shortage, even though “there is no water shortage in the Cities that would justify these
denials.”15

Plaintiff alleges that “[t]here are persons who have been injured by

[d]efendants’ discriminatory actions and practices who are aggrieved persons as defined
in 42 U.S.C. § 3602(i). These persons have suffered damages as a result of [d]efendants’
discriminatory actions and practices.....”16 For Count II, plaintiff seeks injunctive relief, civil
penalties, and damages on behalf of the sixteen aggrieved persons it has disclosed.
Plaintiff commenced this action on June 21, 2012. Prior to the commencement of this
case, a case entitled Cooke v. Town of Colorado City, Case No. 3:10-cv-8105-PCT-JAT, was
filed. In Cooke, the State of Arizona and Ron and Jinjer Cooke alleged that defendants
violated the FHA and engaged in a pattern and pattern of discrimination on the basis of

13

The Trust is the United Effort Plan Trust, which until 2005 was controlled by the
FLDS church, but was reformed by a Utah court in 2006 and is now administered by a
special fiduciary, “who is not affiliated with the FLDS Church[.]” Id. at 4-5, ¶ 13. Much
of the land and many of the Cities’ residences belong to the Trust and “[r]esidents who live
in Trust-owned homes typically have signed occupancy agreements with the Trust.” Id.
at 4, ¶ 12.
14

Id. at 12, ¶ 36.

15

Id. at ¶ 37.

16

Id. at 16, ¶ 60.
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religion in violation of the Arizona Fair Housing Act (AFHA). The Cooke complaint was
based in large part on allegations that the Cookes were denied a water connection because
defendants claimed that “due to a water shortage, no new water connections would be
provided for property that had never had water service....”17 The Cooke complaint also
alleged that the CCMO interfered with the Cookes’ housing rights.18 The Cookes asserted
FHA claims based on 42 U.S.C. §§ 3604(a), 3604(b), 3604(f), and 3617.19 The Cookes and the
State also asserted various claims under the AFHA20 and the State asserted a pattern and
practice claim under the AFHA based on allegations that defendants had a pattern and
practice of denying utilities to non-FLDS individuals.21
The Cooke case went to trial and on March 20, 2014, the jury returned a verdict in
favor of the Cookes and the State. The jury found that defendants had “violated the federal
Fair Housing Act and the Arizona Fair Housing Act by discriminating against the Cookes
in the provision of services or facilities because of religion.”22 The jury found that

17

Joint Second Amended Complaint at 10, ¶ 38, Exhibit 1, Hildale Defendants’
Controverting Statement of Facts [etc.], Docket No. 563.
18

Id. at 20-22, ¶¶ 85-91.

19

Id. at 24, ¶¶ 107-109.

20

Id. at 25-28, ¶¶ 119-140.

21

Id. at 29, ¶¶ 141-146.

22

Order at 3, Docket No. 703 in Case No. 3:10-cv-8105-PCT-JAT.
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defendants had “violated the federal Fair Housing Act and the Arizona Fair Housing Act
by coercing, intimidating, threatening, interfering with, or retaliating against the Cookes
in the enjoyment of their dwelling because (1) of religion or (2) the Cookes asserted rights,
or encouraged others to assert their rights, protected by the federal Fair Housing Act or the
Arizona Fair Housing Act.”23 And, the jury found that defendants “violated the Arizona
Fair Housing Act by engaging in a pattern and practice of resistance to the full enjoyment
of any right granted by the” AFHA.24
Plaintiff now moves for partial summary judgment, arguing that collateral estoppel
applies to the issue of defendants’ liability on Count II. Colorado City, joined by the
Hildale defendants, moves for summary judgment on Count I of plaintiff’s complaint and
on Count II damages. And, the Hildale defendants move for summary judgment on
plaintiff’s request for injunctive relief under the FHA and for summary judgment
dismissing plaintiff’s Count II against TCP and TCWA.
Discussion
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
initial burden is on the moving party to show that there is an absence of genuine issues of

23

Id.

24

Id. at 4.
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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In
deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn
in its favor. Id. at 255. “[T]he court’s ultimate inquiry is to determine whether the ‘specific
facts’ set forth by the nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury might return a verdict in its
favor based on that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987).
Count I
In Count I, plaintiff asserts a claim under the Violent Crime Control and Law
Enforcement Act of 1994, 42 U.S.C. § 14141. Section 14141 provides in relevant part:
It shall be unlawful for any governmental authority, or any
agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by
law enforcement officers ... that deprives persons of rights,
privileges, or immunities secured or protected by the Constitution or laws of the United States.
Plaintiff alleges that the CCMO has engaged in a pattern or practice of conduct that
deprived persons of their rights under the First, Fourth, and Fourteenth Amendments.

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As an initial matter, defendants argue that Count I should be limited to allegations
that the CCMO engaged in a pattern or practice of conduct that violated the Fourteenth
Amendment. Defendants argue that the First and Fourth Amendment do not apply to
claims under 42 U.S.C. § 14141. See Whren v. United States, 517 U.S. 806, 813 (1996) (“We
of course agree with petitioners that the Constitution prohibits selective enforcement of the
law based on considerations such as race. But the constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal Protection Clause, not the
Fourth Amendment.”); United States v. Johnson, 28 F. Supp. 3d 499, 514 (M.D.N.C. 2014)
(“to the extent the Government is challenging a pattern of allegedly discriminatory
individual traffic stops on the basis of ethnicity, Johnson is correct that the Equal Protection
Clause, not the Fourth Amendment, applies”); United States v. City of Columbus, Ohio,
Case No. CIV.A.2:99CV1097, 2000 WL 1133166, at *9 (S.D. Ohio Aug. 3, 2000) (“the Court
concludes that § 14141 is a valid and proper exercise of congressional authority under § 5
of the Fourteenth Amendment”). Defendants argue that because any claim related to a
pattern and practice of misconduct under § 14141 falls solely within the Fourteenth
Amendment, they are entitled to summary judgment on the First and Fourth Amendment
components of plaintiff’s § 14141 claim.
Defendants’ reliance on Whren is misplaced because that case did not involve a §
14141 claim. Defendants’ reliance on Johnson is also misplaced. There, the government

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alleged that “Johnson, in his official capacity as Sheriff of Alamance County, North
Carolina, engaged in a pattern or practice of discriminatory law enforcement activities
directed against Latinos, in violation of the Fourth and Fourteenth Amendments to the U.S.
Constitution.” Johnson, 28 F. Supp. 3d at 502. On cross-motions for summary judgment,
the court concluded that there were material questions of fact as to the government’s claim
based on the Fourteenth Amendment. Id. at 512-13. As to the government’s claim based
on the Fourth Amendment, the government contended that this claim “encompasse[d] the
ACSO’s alleged discrimination on the basis of ethnicity in initiating traffic stops and use
of vehicular checkpoints for general law enforcement purposes.” Id. at 513. “Johnson
contends that the first does not state a claim under the Fourth Amendment, but rather
under the Equal Protection Clause of the Fourteenth Amendment.” Id. at 514. The court
concluded that “to the extent the Government is challenging a pattern of allegedly
discriminatory individual traffic stops on the basis of ethnicity, Johnson is correct that the
Equal Protection Clause, not the Fourth Amendment, applies.” Id. But, the court did not
hold that a § 14141 claim can never be based on the Fourth Amendment. Rather, “the court
conclude[d] ... that the complaint raises a proper Fourth Amendment challenge to the
extent it contends that the ACSO, as part of its alleged targeting of Latinos, has conducted
checkpoints with a programmatic purpose that violates the Fourth Amendment.” Id. at 516
(emphasis omitted); see also, United States v. Maricopa County, Ariz., 915 F. Supp. 2d 1073,

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1081 (D. Ariz. 2012) (“[t]he plain language of the statute allows for a Section 14141 claim
based on a First Amendment deprivation”).
Defendants’ reliance on City of Columbus is also misplaced. There, the court
considered an argument that “Congress exceeded its constitutional authority in
promulgating ... 42 U.S.C. § 14141.” City of Columbus, 2000 WL 1133166, at *1. The court
rejected this argument because it concluded “that § 14141 is a valid and proper exercise of
congressional authority under § 5 of the Fourteenth Amendment.” Id. at *9. The court did
not hold that § 14141 claims could only be based on violations of the Fourteenth
Amendment.
Thus, defendants’ argument that plaintiff cannot base its § 14141 claim on violations
of the First and Fourth Amendments fails. Although the protections of the First and Fourth
Amendments are effective against the states through the Fourteenth Amendment, see
Vlasak v. Superior Court of Calif. ex rel. County of Los Angeles, 329 F.3d 683, 687 n.2 (9th
Cir. 2003) (“The First Amendment applies to the States and their political subdivisions
through the Fourteenth Amendment”); Molina v. Richardson, 578 F.2d 846, 848 n.4 (9th Cir.
1978) (“The protections of the Fourth Amendment are effective against the states through
the Fourteenth” Amendment), that does not mean that plaintiff cannot attempt to prove
its § 14141 claim by establishing that the CCMO had a pattern and practice of violating the
First and Fourth Amendments.

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Defendants next argue that they are entitled to summary judgment on Count I
because plaintiff has no evidence to support its allegation that the CCMO engaged in a
pattern and practice of religious discrimination. Plaintiff alleges that the CCMO engaged
in a pattern and practice of religious discrimination because it “fails to protect non-FLDS
individuals from victimization by FLDS members, fails to investigate crimes against nonFLDS individuals and their property, and refuses to arrest FLDS individuals who have
committed crimes against non-FLDS individuals.”25 These are allegations that the CCMO
violated the equal protection clause of the Fourteenth Amendment. See Lee v. City of Los
Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)) (“‘The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its jurisdiction the equal
protection of the laws,’ which is essentially a direction that all persons similarly situated
should be treated alike.’”).

Plaintiff has alleged several examples of the CCMO’s

discriminatory conduct in paragraphs 18, 22, 23, 28, 30, and 32 of its complaint, but
defendants argue that none of these examples involve religious discrimination.
But even if none of these examples suggest that the CCMO was treating non-FLDS
individuals differently, plaintiff has come forward with other evidence which is sufficient
to create issues of material fact as to whether the CCMO had a pattern and practice of

25

Complaint at 5, ¶ 16, Docket No. 1.
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violating the Equal Protection Clause of the Fourteenth Amendment. This evidence
includes the arrest of Harvey Dockstader, a non-FLDS individual,26 the February 2013 ECO
Alliance incident,27 and the arrest of William E. Timpson Jessop in 2011.28
There are also questions of material fact as to whether the CCMO violated the First
Amendment.

“The First Amendment provides that, ‘Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof....’”
Williams v. Calif., 764 F.3d 1002, 1011 (9th Cir. 2014). “The First Amendment’s protection
of the freedom of religion is considered to be embodied in two clauses: the ‘Establishment
Clause’ and the ‘Free Exercise Clause.’” Id. This case involves the Establishment Clause,
which “prohibits the Government from compelling an individual to participate in religion
or its exercise, or otherwise from taking action that has the purpose or effect of promoting
religion or a particular religious faith.” Id.
“There are three possible tests for determining whether [conduct] violates the
Establishment Clause—the Lemon test, the Endorsement test and the Coercion Test.”
Newdow v. Rio Linda Union School Dist., 597 F.3d 1007, 1017 (9th Cir. 2010). “Under the

26

Dockstader Statement, Exhibit 44, United States’ Controverting Statement of Facts
[etc.], Docket No. 565.
27

Exhibit 41, United States’ Controverting Statement of Facts [etc.], Docket No. 565.

28

Deposition of William E. Timpson Jessop at 97:19-98:20 & 115:20-116:14, Exhibit 24,
United States’ Controverting Statement of Facts [etc.], Docket No. 565.
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Lemon test, to be constitutional (1) the challenged governmental action must have a secular
purpose; (2) ‘its principal or primary effect must be one that neither advances nor inhibits
religion’; and (3) it ‘must not foster an excessive government entanglement with religion.’”
Id. (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)). “Under the Endorsement
Test, [the court] look[s] to see whether the challenged governmental action has the purpose
or effect of endorsing, favoring, or promoting religion, particularly if it has the effect of
endorsing one religion over another.” Id. at 1037. “[T]he ‘coercion test’ emanat[es] from
Lee v. Weisman, 505 U.S. 577, 587 (1992), in which the Court observed, “[i]t is beyond
dispute that, at a minimum, the Constitution guarantees that government may not coerce
anyone to support or participate in religion, or its exercise.” Turner v. Hickman, 342 F.
Supp. 2d 887, 893-94 (E.D. Cal. 2004).
Plaintiff has come forward with evidence that FLDS leaders direct who becomes an
officer and the Marshal. For example, Helaman Barlow testified that he was the interim
Marshal for a period of time but then John Wayman, who was a FLDS church leader, “told
me to let the city manager and council know that he okayed me becoming the permanent
chief.”29 This evidence suggests control by the FLDS of government law enforcement,
which may constitute unconstitutional fusion and entanglement. See Larkin v. Grendel’s
Den, Inc., 459 U.S. 116, 127 (1982 (“important, discretionary governmental powers [cannot]
29

Deposition of Helaman Barlow (April 2014) at 27:22-28:4, Exhibit 14, United States’
Controverting Statement of Facts [etc.], Docket No. 565.
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be delegated to or shared with religious institutions”). Plaintiff has also come forward with
evidence that suggests that CCMO officers endorsed and protected the FLDS church, often
in violation of the oaths they took to uphold the law. For example, Dowayne Barlow
testified that several CCMO officers, including Fred Barlow, Jonathan Roundy, Sam
Johnson, and Helaman Barlow, dropped off parcels, letters, and contributions to couriers
to give to Warren Jeffs, while he was a fugitive.30 And, plaintiff has come forward with
evidence that CCMO officers were aware of marriages involving underage girls but did not
open any criminal investigations regarding these illegal acts.31
Plaintiff has also come forward with evidence that creates issues of fact as to
whether the CCMO had a pattern and practice of violating non-FLDS individuals’ Fourth
Amendment rights. “‘The Fourth Amendment prohibits “unreasonable searches and
seizures” by the Government, and its protections extend to brief investigatory stops of
persons or vehicles that fall short of traditional arrest.’” Ramirez v. City of Buena Park, 560
F.3d 1012, 1020 (9th Cir. 2009) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
A reasonable factfinder could conclude that some of the incidents mentioned above
objectively violate the Fourth Amendment. In addition, plaintiff has come forward with

30

Deposition of Dowayne A. Barlow at 31:13-34:23, Exhibit 20, United States’
Controverting Statement of Facts [etc.], Docket No. 565.
31

Helaman Barlow Deposition at 66:9-67:15, Exhibit 14, United States’ Controverting
Statement of Facts [etc.], Docket No. 565.
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evidence of investigatory stops which a reasonable factfinder could find violated the Fourth
Amendment. For example, Sam Brower testified that he believed he was stopped “without
any probable cause merely because I was in town trying to serve Haven Barlow with legal
process.”32 Brower testified that he was cited for following too close even though the
officer who stopped him was not a witness to the alleged incident.33
In sum, plaintiff may attempt to prove its § 14141 claim by establishing that
defendants violated the First, Fourth, or Fourteenth Amendments, and there are material
questions of fact as to whether there have been any constitutional violations on the part of
defendants. Thus, defendants are not entitled to summary judgment on Count I of
plaintiff’s complaint.
Count II
Count II is plaintiff’s FHA claim in which plaintiff alleges that defendants have
engaged in a pattern and practice of housing discrimination based on religion. Plaintiff
argues that defendants are collaterally estopped from arguing that they are not liable under
the FHA because the issue of whether defendants engaged in a pattern and practice of
housing discrimination has been established in the Cooke case. “[O]ffensive nonmutual
issue preclusion ... prevents ‘a defendant from relitigating the issues which a defendant

32

The Deposition of Samuel E. Brower at 192:3-7, Exhibit 30, United States’
Controverting Statement of Facts [etc.], Docket No. 565.
33

Id. at 192:8-17.
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previously litigated and lost against another plaintiff.’”

Syverson v. Int’l Business

Machines Corp., 472 F.3d 1072, 1078 (9th Cir. 2007) (quoting Parklane Hosiery Co. v. Shore,
439 U.S. 322, 329 (1979)).
[T]he application of offensive nonmutual issue preclusion is
appropriate only if (1) there was a full and fair opportunity to
litigate the identical issue in the prior action, (2) the issue was
actually litigated in the prior action, (3) the issue was decided
in a final judgment, and (4) the party against whom issue
preclusion is asserted was a party or in privity with a party to
the prior action[.]
Id. (internal citations omitted). The court has “‘broad discretion’ ... to take potential
shortcomings or indices of unfairness into account when considering whether to apply
offensive nonmutual issue preclusion, even where the above-listed standard prerequisites
are met.” Id. at 1078-79 (quoting Parklane Hosiery, 439 U.S. at 331). “‘Whether collateral
estoppel is available is a mixed question of law and fact in which the legal issues
predominate.’” Visa U.S.A. Inc. v. First Data Corp., 369 F. Supp. 2d 1121, 1123 (N.D. Cal.
2005) (quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1519 (9th Cir. 1985),
superseded in part by statute on other grounds as stated in Northrop Corp. v. Triad Int'l
Mktg., S.A., 842 F.2d 1154, 1156 (9th Cir. 1988)).
Plaintiff argues that defendants had a full and fair opportunity to litigate in the
Cooke case the issue of whether they engaged in a pattern and practice of housing

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discrimination, which is the identical issue raised in Count II. Four factors courts consider
in determining whether issues are identical are:
“(1) is there a substantial overlap between the evidence or
argument to be advanced in the second proceeding and that
advanced in the first?
(2) does the new evidence or argument involve the application
of the same rule of law as that involved in the prior proceeding?
(3) could pretrial preparation and discovery related to the
matter presented in the first action reasonably be expected to
have embraced the matter sought to be presented in the
second?
(4) how closely related are the claims involved in the two
proceedings?”
Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir. 1995) (quoting Restatement
(Second) of Judgments § 27 cmt. c).
There is no dispute that any new evidence that plaintiff would present on Count II
in this case would involve the same rule of law that was applied to the pattern and practice
claim in Cooke. Although the State’s pattern and practice claim in Cooke was based on the
AFHA, rather than the FHA, these statutes are substantially equivalent and courts look to
cases interpreting the FHA to interpret the AFHA. See, e.g., Canady v. Prescott Canyon
Estates Homeowners Ass’n, 60 P.3d 231, 233 n.3 (Ariz. Ct. App. 2002) (“Because the
provisions of Arizona’s Fair Housing Act involved in this appeal are virtually identical to

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those provisions of the federal Act, federal case authority is persuasive in interpreting
Arizona’s statute.”).
As for the other three factors, plaintiff argues that there is a substantial overlap of
evidence, which in turn means that the pretrial preparation and discovery in Cooke
embraced matters that will be presented in this case and also means that the claims in both
cases are closely related. Plaintiff contends that the State in Cooke presented evidence that
the FLDS church controls defendants, that defendants refused to cooperate with the Trust
to make Trust land available to individuals regardless of their religion, that defendants
denied water service to non-FLDS individuals, that the CCMO was controlled by the FLDS
church and interfered with housing rights, that defendants frustrated the ability of nonFLDS members to enjoy Trust leases and occupancy agreements, and that defendants
conspired with the FLDS church to use culinary water issues to deny housing on the basis
of religion.34 Plaintiff contends that in this case, it will present evidence that defendants
acted in concert with the FLDS leadership to deny non-FLDS individuals housing, that
defendants operated as an arm of the FLDS church, that defendants denied water service
to non-FLDS individuals, that defendants refused to issue building permits to non-FLDS
individuals, that defendants used an alleged water shortage as a pretext for discrimination,
34

To support its contentions as to what evidence was offered in the Cooke case,
plaintiff relies on the judgment that was proposed by the State. Docket No. 687-1, Case No.
3:13-cv-08105-PCT-JAT. As defendants are quick to point out, this proposed judgment,
which contained over 400 paragraphs, was not adopted by the court.
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and that the CCMO interferes with housing rights by, among other things, arresting nonFLDS individuals for trespass on properties they have a right to enter. Thus, plaintiff
insists that there is a substantial overlap in evidence between the two cases.
The court disagrees. First, as defendants have pointed out, the two cases involve
different subsections of the FHA, which presumably means that the evidence necessary to
prove plaintiff’s FHA claim in this case will be different from the evidence that was offered
in the Cooke case. More importantly, the Cooke case focused on the water issue, which
is only one of the issues that plaintiff has raised in its pattern and practice claim in this case.
The issues raised by plaintiff in Count II in this case are much broader than the issues that
were raised in the Cooke case and thus there is not a substantial overlap of evidence as to
the two cases. Because there is not a substantial overlap of evidence, the issues in the two
cases are not identical. Because the issues in the two cases are not identical, non-mutual
collateral estoppel has no application here.
Because the court declines to apply issue preclusion broadly as to plaintiff’s entire
FHA pattern and practice claim, plaintiff would then have the court apply issue preclusion
to the factual issues with respect to discrimination in the provision of utilities, the provision
of building permits, and CCMO trespass arrests. ““If the court does not grant all the relief
requested by [a summary judgment] motion, it may enter an order stating any material
fact--including an item of damages or other relief--that is not genuinely in dispute and

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treating the fact as established in the case.” Fed. R. Civ. P. 56(g); see also, McCoy v. Foss
Maritime Co., 442 F. Supp. 2d 1103, 1112-13 (W.D. Wash. 2006) (court adopted some factual
findings from a prior action but required the plaintiff to “make an individualized showing
of his own treatment and injury” and allowed the defendant “to show it acted exceptionally with regard to” the plaintiff).
It is within the court’s discretion to enter an order treating certain facts as
established. See U.S. Bank Nat’l Assoc. v. Verizon Communications, Inc., 761 F.3d 409, 427
n.15 (5th Cir. 2014) (“The Rule’s use of the word ‘may’, as opposed to ‘shall’, indicates that
district courts are not required to enter a separate order under Rule 56(g)”). Although
defendants can hardly contest the fact that they violated the FHA as regards the
habitability of the Cookes’ property, “[t]he court ... conclude[s] that it is better to leave open
for trial facts and issues that may be better illuminated by the trial of related facts that must
be tried in any event.” Fed. R. Civ. P. 56(g) advisory committee’s cmt. (2010 amd.). What
plaintiff is requesting here still involves issue preclusion and it is the court’s perception that
it would be potentially unfair to deprive defendants of the opportunity to defend against
plaintiff’s FHA claim in its entirety. If the jury were instructed that defendants are already
liable as to some of the FHA issues, the jury may take such an instruction as an invitation
to assume that because defendants had engaged in some unlawful conduct, all of
defendants’ conduct was unlawful.

Moreover, although it is a somewhat minor

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consideration, declining to enter a Rule 56(g) order will avoid the Hildale defendants’
somewhat logical argument that plaintiff should be limited to the scope of the Cooke
injunction if defendants are to be bound by the factual findings of the Cooke case.
In sum, non-mutual collateral estoppel does not apply here, and the court declines
to enter a separate Rule 56(g) order. Thus, plaintiff’s motion for summary judgment as to
defendants’ liability on its FHA claim is denied.
Turning then to the issues of relief as to Count II, the Hildale defendants argue that
plaintiff’s request for injunctive relief has been rendered moot by the injunction that was
entered in the Cooke case. “Article III’s ‘case-or-controversy’ requirement precludes
federal courts from deciding ‘questions that cannot affect the rights of litigants in the case
before them.’” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 834 (9th Cir. 2014)
(quoting DeFunis v. Odegaard, 416 U.S. 312, 316 (1974)). “‘The central question of all
mootness problems is whether changes in the circumstances that prevailed at the beginning
of litigation have forestalled any occasion for meaningful relief....’” West v. Sec. of Dep’t.
of Transp., 206 F.3d 920, 925 n.4 (9th Cir. 2000) (quoting 13A Federal Practice and
Procedure § 3533.3 at 268 (1984)). If plaintiff has already been awarded in the Cooke case
the FHA injunctive relief it seeks here, there would be no meaningful injunctive relief that
this court could award.
In its complaint, plaintiff requests that defendants be enjoined from:

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i.

Refusing to negotiate for the sale of housing, denying
housing, or otherwise making housing unavailable
because of religion, in violation of 42 U.S.C. § 3604(a);

ii.

Discriminating in the terms, conditions, or privileges of
rental of a dwelling because of religion, in violation of
42 U.S.C. § 3604(b); and

iii.

Coercing, intimidating, threatening, or interfering with
a person in the exercise or enjoyment of, or on account
of his having exercised or enjoyed, or on account of his
having aided or encouraged any other person in the
exercise or enjoyment of, a right granted or protected by
Section 804 of the Fair Housing Act, in violation of 42
U.S.C. § 3617[.]35

In the Cooke case, the court enjoined defendants, for a period of ten years, from
(1) discriminat[ing] because of religion against any person in
the terms, conditions, or privileges of the provision of services
or facilities in connection with the sale or rental of a dwelling;
or (2) coerc[ing], intimidat[ing], threaten[ing], interfer[ing]
with, or retaliat[ing] against any person in the enjoyment of his
or her dwelling because of religion or because that person has
asserted rights, or encouraged others to assert their rights,
protected by the federal Fair Housing Act or the Arizona Fair
Housing Act.[36]
The Hildale defendants argue that because the Cooke injunction is not limited to
preventing discrimination against the specific parties involved in Cooke but rather
precludes discrimination against “any person”, the Cooke injunction provides the same

35

Complaint at 17-18, Docket No. 1.

36

Amended Judgment and Permanent Injunction at 2, ¶ 7, Case No. 10-cv-8105-PCTJAT, Exhibit A, Hildale Defendants’ Separate Statement of Facts [etc.], Docket No. 549.
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relief that plaintiff has requested in this case. But even if plaintiff’s request for FHA
injunctive relief is not moot, the Hildale defendants argue that they should still be granted
summary judgment on plaintiff’s request for injunctive relief under the FHA because
plaintiff cannot establish that it is entitled to injunctive relief. “The requirements for the
issuance of a permanent injunction are (1) the likelihood of substantial and immediate
irreparable injury, and (2) the inadequacy of remedies at law.” G.C. and K.B. Invs., Inc. v.
Wilson, 326 F.3d 1096, 1107 (9th Cir. 2003). The Hildale defendants argue that plaintiff
cannot demonstrate that there is a continuing threat that they will violate the FHA because
they are prohibited from doing so because of the Cooke injunction, and, the Hildale
defendants argue that the Cooke injunction provides an adequate remedy at law.
The Hildale defendants’ argument that plaintiff’s request for FHA injunctive relief
is moot is rejected. As discussed above, plaintiff’s FHA claim in this case is broader than
the pattern and practice claim in Cooke. Because plaintiff’s FHA claim is considerably
broader than what was litigated in Cooke, there may be a need for a broader injunction in
this case if plaintiff prevails on its FHA claim. As to the Hildale defendants’ contention that
plaintiff cannot prove the need for injunction, that contention is premature. It remains to
be seen whether plaintiff can prove such a need. Thus, the Hildale defendants’ motion for
summary judgment as to Count II injunctive relief is denied.

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Next, defendants argue that plaintiff cannot seek any FHA damages for the sixteen
aggrieved persons it has disclosed.37 “The Fair Housing Act allows courts to award
damages to persons aggrieved by a defendant’s pattern of discrimination[.]” Balistrieri, 981
F.2d at 935. “In order to establish that a [person] is an ‘Aggrieved Person,’” plaintiff “must
demonstrate that [the person] suffered a concrete injury in fact or one that is actual and
imminent; that such injury is fairly traceable to [the d]efendants’ allegedly illegal actions;
and that it is likely that such injury will be redressed by a favorable decision.” Savanna
Club Worship Service, Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223,
1226 (S.D. Fla. 2005).
Defendants first argue that plaintiff cannot offer at trial any evidence regarding the
damages that these aggrieved persons suffered because plaintiff failed to provide any
computation of these damages as required by Rule 26(a)(1)(A)(iii), Federal Rules of Civil
Procedure. Rule 26(a)(1)(A)(iii) requires “a computation of each category of damages
claimed by the disclosing party....” “If a party fails to provide information ... as required
by Rule 26(a) or (e), the party is not allowed to use that information ... on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R.
Civ. P. 37(c)(1).

37

United States’ Eleventh Supplemental Initial Disclosures at 2-5, Exhibit 7,
Statement of Facts [etc.], Docket No. 545.
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In its Eleventh Supplemental Initial Disclosure, dated July 3, 2014, plaintiff stated
that it
will be seeking monetary relief for aggrieved persons, ...
including their out-of-pocket and economic costs, lost housing
opportunities, and emotional distress, embarrassment and
humiliation. The precise amount needed to compensate
aggrieved persons for the emotional distress they suffered will
be determined by the jury. The United States continues to
evaluate the evidence in this case to determine the identity of
aggrieved persons as well as the monetary damage amounts
sought on their behalf, and will supplement these responses
accordingly.[38]
Plaintiff has not provided defendants any supplemental disclosures as to the damages that
it is seeking on behalf of the 16 identified aggrieved persons and thus defendants argue that
they are left to guess as to what damages plaintiff might be seeking on behalf of the sixteen
aggrieved persons.
As an initial matter, plaintiff argues that defendants’ Rule 26 argument is not timely,
but the authority to which plaintiff cites does not support its argument. And, as defendants
point out, “Rule 37(c)(1) is a ‘self-executing,’ ‘automatic’ sanction designed to provide a
strong inducement for disclosure.” Goodman v. Staples The Office Superstore, LLC, 644
F.3d 817, 827 (9th Cir. 2011) (quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259
F.3d 1101, 1106 (9th Cir. 2001)).

38

Id. at 31.
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Turning then to the merits of defendants’ Rule 26 argument, plaintiff represents that
it is only seeking “damages for the aggrieved persons for emotional distress, embarrassment, and humiliation.”39 The court will hold plaintiff to that representation. As to these
damages only, the court finds that plaintiff has not violated Rule 26. Such damages are not
subject to any mathematical calculation and are for a jury to decide. See Williams v. Trader
Pub. Co., 218 F.3d 481, 486 n.3 (5th Cir. 2000) (“Since compensatory damages for emotional
distress are necessarily vague and are generally considered a fact issue for the jury, they
may not be amenable to the kind of calculation disclosure contemplated by Rule
26(a)(1)(C)”); First v. Kia of El Cajon, Case No. 10–CV–536–DMS (BGS), 2010 WL 3069215,
at *1 (S.D. Cal. Aug. 4, 2010) (citation omitted) (“[w]hile Rule 26 generally requires a party
to provide a computation of such damages, emotional distress damages, because of their
vague and unspecific nature, are oftentimes not readily amendable to computation”).
Defendants’ reliance on Museum Associates, Ltd. v. Midzor, Case No. CV
10–01042–PHX–NVW, 2012 WL 14026 (D. Ariz. Jan. 4, 2012), is misplaced. That case
involved the disclosure (or lack thereof) of medical records and documents to support the
plaintiff’s claim for emotional distress damages. Here, there is no suggestion that there are
medical or other records which support the emotional distress damage claims of the
aggrieved persons that plaintiff has failed to produce. To the extent that plaintiff has such
39

United States’ Opposition to Colorado City’s Motion for Summary Judgment at 15,
Docket No. 564.
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evidence, plaintiff will not be permitted to offer any such evidence at trial since plaintiff did
not timely disclose this evidence to defendants.
Defendants next argue that they are entitled to summary judgment as to ten of the
sixteen aggrieved persons because there is no evidence that these ten individuals suffered
damages, emotional or otherwise, due to defendants’ conduct. The sixteen persons who
plaintiff has identified as aggrieved persons are: Patrick Barlow, Andrew Chatwin, John
Cook, Ron and Jinjer Cooke, Ross and Lori Chatwin, Richard Holm, Christopher and
Jesseca Jessop, Willie R. Jessop, Ron Rohbock, Jerold Williams, Elizabeth Wayman, Dan
Wayman, and Isaac Wyler. Defendants argue that there is no evidence that John Cook,
Ross Chatwin, Lori Chatwin, Christopher Jessop, Jesseca Jessop, Willie R. Jessop, Ron
Rohbock, Jerold Williams, Elizabeth Wayman, or Isaac Wyler suffered any damages as
result of defendants’ alleged violations of the FHA.
The question here is whether plaintiff has any evidence that any of these ten people
suffered any emotional distress. “[A] court may not presume emotional distress from the
fact of discrimination. A plaintiff must actually prove that he suffers from emotional
distress and that the discrimination caused that distress.” Balistrieri, 981 F.2d at 931. “This
is not to say, however, that an injured person's testimony can never be sufficient by itself,
or in conjunction with the circumstances of the particular case, to establish damages for
emotional distress.” Id. at 932.

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As for John Cook, defendants point out that he testified that he had “no knowledge”
as to any damages that he was seeking in this case.40 But, plaintiff has come forward with
a declaration from John Cook in which he avers that his inability to get a water connection
for his residential property caused him to feel “dejected and hurt. I was devastated by [the
Cities’] attitude. It was a big blow to me. It was frustrating and egregious, the way they
treated me.”41 This declaration creates a question of fact as to whether John Cook suffered
emotional distress.
As for Ross and Lori Chatwin, Ross claims that he was falsely arrested by the CCMO
in connection with a dispute with his brother over a residence. Ross testified that he
believed that he was entitled to monetary damages for his false arrest but that he did not
know exactly how much he would be entitled to.42 Plaintiff presents no evidence that
suggests that Ross and Lori Chatwin suffered any emotional distress, which are the type
of damages plaintiffs may seek on the behalf of aggrieved persons. Defendants are entitled
to summary judgment as to Count II damages for Ross and Lori Chatwin. Plaintiff may not
request damages on behalf of these aggrieved persons.

40

The Deposition of John Cook at 60:7-16, Exhibit 8, Statement of Facts [etc.], Docket
No. 545.
41

Declaration of John Cook at 2, ¶ 9, Exhibit 39, United States’ Controverting
Statement of Facts [etc.], Docket No. 565.
42

Deposition of Charles (Ross) Chatwin at 136:12-25, Exhibit 9, Statement of Facts
[etc.], Docket No. 545.
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As for Christopher and Jesseca Jessop, defendants point out that Jesseca testified
about a 2013 property dispute to which a police officer responded and that she was not
looking to get anything personally out of this case, that she was not looking for money.43
Plaintiff, however, has offered declarations from both Christopher and Jesseca.
Christopher avers that his
family’s experience with the Marshal’s office makes me feel
insecure. I was surprised to feel like I cannot truly trust my
local police. It causes me concern and worry. I worry about
my family, especially my youngest daughter and son. I
understand how FLDS Church security operates in Short
Creek. My family has been harassed before, and I have no idea
what Church security could do to my family if they were ever
ordered to. I feel like I could not count on the Marshal’s office
in that situation.[44]
Jesseca avers that her “treatment at the hands of the Marshal’s office stressed me out and
made me angry” and that their investigation of a hit-and-run involving her son “made me
furious and frightened. I feel frustrated. Because of the discriminatory treatment I have
experienced with the Marshal’s office I feel like I cannot get real justice where I live.”45
These declarations are sufficient to create questions of fact as to whether the Jessops

43

The Deposition of Jesseca Jessop at 83:14-22, Exhibit 10, Statement of Facts [etc.],
Docket No. 545.
44

Declaration of Christopher Jessop at 1-2, ¶ 4, Exhibit 34, United States’ Controverting Statement of Facts [etc.], Docket No. 565.
45

Declaration of Jesseca Jessop at 1, ¶ 3 & 2, ¶ 6, Exhibit 35, United States’
Controverting Statement of Facts [etc.], Docket No. 565.
-29-

suffered any emotional distress, although it is not entirely clear whether the Jessops’
alleged emotional distress had anything to do with defendants’ alleged violations of the
FHA.
As for Willie R. Jessop, plaintiff has not come forward with any evidence suggesting
that Willie Jessop suffered any emotional distress as a result of any of the alleged violations
of the FHA by defendants. Defendants are entitled to summary judgment as to Count II
damages for Willie Jessop. Plaintiff may not request damages on behalf of this aggrieved
person.
As for Ron Rohbock, he testified about a 2013 property dispute to which a police
officer responded. Rohbock was asked if he was seeking any kind of compensation in this
case and he testified that
[i]f there is some compensation I would be glad for it because
I am very indigent. I have nothing to show for my 50 years of
[what] I would call back breaking slave labor for a religion that
I got nothing from. So, yeah, I would ... accept it, yes. But
have I sought it? Have I sat down and said this is what I want?
No.[46]
Defendants argue that this testimony shows that Rohbock does not have any damages
against defendants, although he would like compensation from the FLDS church. Plaintiff
offers, however, a declaration from Rohbock, in which he avers:

46

Deposition of Ron Rohbock at 75:10:16, Exhibit 12, Statement of Facts [etc.], Docket
No. 545.
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I am 63 years old. I witnessed my wife break down in tears
over how the Marshal’s office has treated us. I felt like the
Marshal’s Office blew us off completely when we needed help,
including when our property was vandalized. My interactions
with the Marshal’s office have caused me stress. For an older
couple to have to deal with this kind of discrimination is very
upsetting. It makes me concerned and extremely upset to feel
like I cannot enjoy my home or trust my local police. The
situation has cost me sleep and upset me repeatedly. I feel that
my wife and I are at the mercy of police we cannot trust.[47]
This declaration creates a question of fact as to Rohbock’s emotional distress damages.
As for Jerold Williams and Elizabeth Wayman, Jerold testified about the time in 2012
when he was arrested after he entered or attempted to enter a residence where his family
was staying. Jerold was asked if he was seeking any money from this case and he testified
that
I’m letting things come however they do. I have not asked or
petitioned for money, no. I’m not saying I would refuse some
if it’s a result of it, but I’m saying that I have not petitioned and
said that I am owed anything, any kind of damages or anything like that.[48]
Plaintiff, however, offers declarations from Jerold Williams and Elizabeth Wayman.
Wayman avers that her husband’s

47

Declaration of Ron Rohbock at 1, ¶ 4, Exhibit 36, United States’ Controverting
Statement of Facts [etc.], Docket No. 565.
48

The Deposition of Jerold Williams at 96:23-97:3, Exhibit 5, Statement of Facts [etc.],
Docket No. 545.
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arrest and the events surrounding the arrest had an emotional
impact. I felt as rock-bottom emotionally as I could get. My
children and grandchildren were horror-struck and running
around because we returned to the home & police were
summoned. I felt as bad as I have ever felt. I felt that the
Marshal’s office, which we knew, turned on us and treated us
like vipers because we were no longer members of the FLDS
Church. I cried untold tears about [that] night. The event was
traumatic and I still feel the effects. I had a hard time for two
or three months dealing with emotions caused by that night.[49]
Jerold avers that “[i]t was humiliating to be arrested and hauled away in handcuffs in front
of my own children.”50 He further avers that
I felt betrayed and frustrated that the FLDS Church used the
Marshal’s office to keep me from my family. It caused feelings
that were hard to deal with. Those feelings are still hard for
me to deal with. It was a deep enough hurt that I don’t know
how I will recover from it. I am still dealing with it. Putting it
in words doesn’t seem to do justice to what I felt.[51]
These declarations create issues of fact as to whether Williams and Wayman suffered
emotional distress.
As for Isaac Wyler, plaintiff offers no evidence that suggests that Wyler suffered any
emotional distress as a result of any alleged violations of the FHA by defendants. Thus,

49

Declaration of Elizabeth Wayman at 1, ¶ 2, Exhibit 37, United States’ Controverting
Statement of Facts [etc.], Docket No. 565.
50

Declaration of Jerold Williams at 1, ¶ 3, Exhibit 38, United States’ Controverting
Statement of Facts [etc.], Docket No. 565.
51

Id. at ¶ 4.
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defendants are entitled to summary judgment as to Count II damages for Isaac Wyler.
Plaintiff may not request damages on behalf of this aggrieved person.
Finally, as to Count II, the Hildale defendants argue that plaintiff’s FHA pattern and
practice claim against TCWA and TCP should be dismissed because these entities no
longer exist. Plaintiff does not oppose the dismissal of TCP.52 Plaintiff does oppose
dismissing TCWA.
TCWA was incorporated as a non-profit corporation in the State of Utah in 1996 for
the primary purpose of repaying a debt owed to the Rural Utility Service.53 TCWA entered
into an intergovernmental agreement with the Cities to manage, operate, and maintain the
Cities’ shared water system and to repay the debt.54 TCWA was dissolved in July 2014.55
Its restated articles of incorporation provide that “[u]pon dissolution ... the assets of TCWA
shall be dedicated to an appropriate public agency for purposes similar to those for which
TCWA was created.”56 The Hildale defendants contend that the assets of TCWA have been

52

United States’ Response to Hildale Defendants’ Partial Motion for Summary
Judgment at 1, n.1., Docket No. 559.
53

Articles of Incorporation at 1, Exhibit B, Hildale Defendants’ Separate Statement
of Facts [etc.], Docket No. 549.
54

Exhibit C, Hildale Defendants’ Separate Statement of Facts [etc.], Docket No. 549.

55

Exhibit D, Hildale Defendants’ Separate Statement of Facts [etc.], Docket No. 549.

56

Article 5, Restated Articles of Incorporation at 3, Exhibit E, Hildale Defendants’
Separate of Facts [etc.], Docket No. 549.
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returned to the Cities. Because TCWA no longer exists and its liabilities have been
absorbed by the Cities, the Hildale defendants argue that if TCWA remains a defendant in
this case and plaintiff prevails, plaintiff will be able to recover twice against the Cities,
which would be unfairly punitive.
TCWA’s voluntary dissolution does not mean that plaintiff’s FHA claim against
TCWA should be dismissed.57 Utah’s Revised Non-Profit Corporation Act provides that
“[d]issolution of a nonprofit corporation does not ... abate or suspend a proceeding
pending by or against the nonprofit corporation on the effective date of dissolution.” Utah
Code § 16-6a-1405(3)(g). Because the dissolution of TCWA took place after plaintiff filed
its complaint, its dissolution has no effect on plaintiff’s pending FHA claim. As for the
Hildale defendants’ contention that if plaintiff prevails on its FHA claim against TCWA,
the Cities will be “fined” twice, it is within the court’s discretion whether civil penalties will
be awarded. 42 U.S.C. § 3614(1)(c). The court will not allow plaintiff to recover twice for
the same damage or harm.
Secondly, the Hildale defendants argue that TCWA is entitled to summary judgment
on plaintiff’s FHA claims because there is no evidence that TCWA engaged in a pattern or
practice of religious discrimination. The Hildale defendants’ argument focuses on the 16

57

Plaintiff “concedes that its demand for injunctive relief against ... TCWA is
rendered moot by [its] dissolution....” United States’ Response to Hildale Defendants’
Partial Motion for Summary Judgment at 9 n.9, Docket No. 559.
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persons that plaintiff has identified as aggrieved persons. But, as plaintiff points out, these
16 individuals have not brought FHA claims. Rather, plaintiff has a brought a single FHA
claim under § 3614(a), alleging that defendants, including TCWA, engaged in a pattern and
practice of violating the FHA on the basis of religion. Plaintiff can prevail on its FHA claim
against TCWA by either showing that TCWA engaged in a pattern or practice of violating
the FHA or that it denied rights granted by the FHA to a group of persons, which denial
raises an issue of general public importance. If it establishes that TCWA engaged in a
pattern and practice of violating the FHA, then plaintiff may seek civil penalties and/or it
may seek to recover damages on behalf of aggrieved persons. In other words, even if none
of the aggrieved persons testified that they were harmed by the TCWA’s conduct, plaintiff
could still prevail on its claim against TCWA.
As for whether plaintiff may request damages from TCWA on behalf of any of the
aggrieved persons, plaintiff does not dispute that the incidents involving Andrew Chatwin,
Christopher and Jesseca Jessop, Willie R. Jessop, Ron Rohbock, Jerold Williams, Elizabeth
Wayman, and Isaac Wyler had nothing to do with the provision of culinary water and thus
it cannot, and will not, seek damages from TCWA for these individuals.58 Plaintiff also
states that “it no longer intends to seek monetary damages” for Ron and Jinjer Cooke in

58

As discussed above, plaintiff may not seek any Count II damages as to Willie
Jessop and Isaac Wyler.
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this case.59 And, as discussed above, plaintiff cannot seek any Count II damages against
any defendant on behalf of Ross and Lori Chatwin. The question here then is whether
plaintiff can seek damages from TCWA on behalf of Patrick Barlow, John Cook, Richard
Holm, and Dan Wayman should plaintiff prevail on its pattern and practice claim in Count
II.
The Hildale defendants argue that any damage claims of Patrick Barlow, John Cook,
and Richard Holm are moot due to their involvement in the Cooke case. The Cooke
judgment required defendants to provide utilities to John Cook and Patrick Barlow,60 and
Richard Holm was granted utility connections pursuant to an agreement reached between
the parties and he no longer owns the property in question. However, none of these three
individuals were awarded emotional distress damages in Cooke. Thus, plaintiff is not
precluded from seeking damages from TCWA on behalf of these three individuals in this
case, should plaintiff prevail on its Count II FHA claim.
As for Dan Wayman, the Hildale defendants contend that his deposition testimony
shows that his only interactions concerning his water connection were with the Cities’

59

United States’ Response to Hildale Defendants’ Partial Motion for Summary
Judgment at 16 n.21, Docket No. 559.
60

Amended Judgment and Permanent Injunction at 2, ¶ 6, Exhibit A, Hildale
Defendants’ Separate Statement of Facts [etc.], Docket No. 549.
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utilities department, and not with TCWA.61 Plaintiff makes no argument in response.
Thus, the Hildale defendants are entitled to summary judgment as to damages from TCWA
for Dan Wayman. Plaintiff may not seek damages from TCWA for Dan Wayman should
plaintiff prevail on its Count II FHA claim against TCWA.
Conclusion
Plaintiff’s motion for partial summary judgment62 is denied.
Colorado City’s motion for partial summary judgment,63 in which the Hildale
defendants join, is granted in part and denied in part. The motion is granted as to
plaintiff’s request for Count II damages on behalf of Isaac Wyler, Willie R. Jessop, and Ross
and Lori Chatwin. Plaintiff is precluded from requesting FHA damages from any
defendant on behalf of these aggrieved persons, should plaintiff prevail on its FHA claims
in Count II. Colorado City’s motion is otherwise denied.
The Hildale defendants’ motion for partial summary judgment64 is granted in part
and denied in part. The motion is granted as to TCP. Plaintiff’s claims against TCP are
dismissed with prejudice. The motion is also granted as to plaintiff’s request for FHA

61

Exhibit R, Hildale Defendants’ Separate Statement of Facts [etc.], Docket No. 549.

62

Docket No. 541.

63

Docket No. 544.

64

Docket No. 548.
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damages from TCWA on behalf of Dan Wayman. Plaintiff is precluded from seeking FHA
damages from TCWA on behalf of Dan Wayman. The Hildale defendants’ motion is
otherwise denied.
DATED at Anchorage, Alaska, this 17th day of June, 2015.
/s/ H. Russel Holland
United States District Judge

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