Bollfrass v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: June 23, 2020
• Docket: 2:19-cv-04014
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Gerald Bollfrass, et al., No. CV-19-04014-PHX-MTL

10 Plaintiffs, ORDER

11 v.

12 City of Phoenix, et al.,

13 Defendants. 14 15 Pending before the Court are the Motions to Dismiss Plaintiffs’ Second Amended 16 Complaint. (Doc. 66); (Doc. 80.) The Motions are fully briefed.1 (Doc. 66); (Doc. 76); 17 (Doc. 78); (Doc. 80); (Doc. 85); (Doc. 89.) For reasons that follow, the Motions to Dismiss 18 are granted in part and denied in part.2 19 I. BACKGROUND 20 Plaintiffs Gerald Bollfrass and Frank Czyzewski are married. (Doc. 57, ¶ 1.) 21 Plaintiffs participate in a federal housing program, administered by the United States 22 Department of Housing and Urban Development (“HUD”), and reside together in Fillmore 23 Gardens, a public housing complex in Phoenix, Arizona. (Id. ¶¶ 2, 10.) Plaintiffs filed this

24 1 The Court feels compelled to say something about the quality of the work product. It could have been better. The briefs lacked organization and there was excessive 25 “incorporation by reference” to large sections of previously filed briefs. In Defendants’ briefs, extensive substantive arguments were turned into footnotes and citations did not 26 include pin-cites. This caused a tremendous additional expenditure of judicial resources. The lawyers on this case are now on notice that, should these problems continue, the Court 27 may summarily deny or strike their filings. 2 Neither party requested oral argument. After reviewing the pleadings, however, the Court 28 has determined that oral argument would not have aided the Court’s decisional process. See LRCiv 7.2(f). 1 lawsuit against the following entities and individuals: the City of Phoenix and City of 2 Phoenix Housing Department (collectively “PHD”), which own and operate Fillmore 3 Gardens; Cindy Stotler, the director of PHD; Keon Montgomery, the deputy director of 4 PHD; William Emmerson, the deputy director of PHD from 2014 until August 2017, and 5 an Assistant Phoenix City Prosecutor from August 2017 to the present; Veronica Grittman, 6 a PHD housing manager; Dina Fernandez, a PHD housing supervisor; Angela Hogan, a 7 PHD housing supervisor; James Navarrette, a PHD property manager; Julie Bosshart, a 8 PHD casework supervisor and program administrator, (collectively “PHD Defendants”); 9 Phoenix Police Officer Ryan T. McAbee; Phoenix Police Officer Calvin Martin 10 (collectively the “Officer Defendants”); and Donna Magaard, a resident at Fillmore 11 Gardens. (Id. ¶¶ 2, 12-23.) Except for Donna Magaard, who is sued individually, each of 12 the defendants are sued in both their individual and official capacities. (Id.) Various 13 spouses of the named Defendants are sued for purposes of obtaining jurisdiction over their 14 marital communities. (Id. ¶ 24.) 15 Plaintiffs originally filed their complaint on May 16, 2019 in the Maricopa County 16 Superior Court, and Defendants removed the action to this Court on May 31, 2019. (Doc. 17 1.) Plaintiffs filed their First Amended Complaint on June 24, 2019, (Doc. 14), and their 18 Second Amended Complaint (“SAC”) on December 19, 2019, (Doc. 57). The SAC alleges 19 seven causes of action related to Defendants’ alleged disparate treatment of and retaliation 20 against Plaintiffs for their community activism and sexual orientation. All Defendants, 21 except for Donna Magaard (who is proceeding pro se), have moved to dismiss the SAC 22 under Federal Rule of Civil Procedure 12(b)(6). (Doc. 66); (Doc. 80). 23 II. FACTUAL ALLEGATIONS 24 These facts are taken from the well-pled allegations in the SAC, which the Court 25 accepts as true and construes in the light most favorable to Plaintiffs. North Star Int’l. v. 26 Arizona Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 27 28 1 A. The “Clashing of Heads” 2 Plaintiffs are active members of the Fillmore Gardens community, and previously 3 acted as officers and organizers of the Fillmore Gardens Tenant Council, a resident union. 4 (Doc. 57, ¶ 28.) Plaintiffs assert that in the course of their community activism through 5 the Tenant Council, they “clashed heads” with the PHD Defendants over various issues, 6 including Plaintiffs’ requests for PHD to implement a consistent no-smoking policy, 7 complaints Plaintiffs made to HUD about PHD, and complaints Plaintiffs made to PHD 8 about allegedly unsanitary and dangerous property conditions. (Id. ¶ 31.) 9 Plaintiff Czyzewski was employed by a third-party vendor to work as a resident 10 assistant at Fillmore Gardens. (Id. ¶¶ 43, 45.) The SAC alleges that in July 2017 Plaintiff 11 Czyzewski called 911 to obtain medical assistance for a Fillmore Gardens resident, whom 12 Plaintiffs allege was found lying on the floor of his hot apartment, which had a poorly 13 functioning air conditioning unit. (Id. ¶ 50.) When Plaintiff Czyzewski reported the 14 incident to PHD, Defendant Emmerson (the deputy housing director) accused him of 15 engaging in abusive and harassing communications and threatened to shut down the Tenant 16 Council. (Id. ¶¶ 51, 52, 54-56.) 17 In July 2017, Defendant Fernandez (a PHD housing supervisor) allegedly refused 18 to respond to Plaintiff Czyzewski’s requests for a key that was needed for the Tenant 19 Council’s summer picnic. (Id. ¶¶ 58-61.) Plaintiffs further allege that PHD called the 20 Phoenix Police Department in response to a text sent by Plaintiff Czyzewski to Ms. 21 Fernandez regarding his prior interaction with a maintenance worker over the missing key. 22 (Id. ¶¶ 61-62.) When police arrived, Defendant Fernandez reported to police that Plaintiff 23 Czyzewski was continually “try[ing] to take control of the housing unit.” (Id. ¶ 64.) Police 24 drafted an incident report, which stated that no crime had occurred. (Id. ¶ 62.) 25 After that incident, Defendant Fernandez summoned Plaintiff Czyzewski to her 26 office, where Defendant Grittman (the PHD housing manager) and Defendant Emmerson 27 (the deputy housing director) were waiting. (Id. ¶ 66.) Mr. Emmerson then fired Mr. 28 Czyzewski “on the spot” from his resident assistant position, allegedly stating that he could 1 fire Mr. Czyzewski for any reason he wanted. (Id. ¶ 67.) 2 In October 2017, Defendant Fernandez visited Plaintiffs’ apartment in response to 3 their complaints about the smell of cigarette smoke seeping into their apartment. (Id. ¶ 69.) 4 When Mr. Czyzewski emailed Defendant Fernandez to follow up on her visit, (id. ¶ 71), 5 Defendant Fernandez told him that the odor in Plaintiffs’ apartment was due to a “lack of 6 hygiene” and that the “unpleasant” smell was present as soon as Mr. Czyzewski opened 7 the door. (Id. ¶ 72.) 8 The next week, Plaintiff Bollfrass wrote a letter to the local HUD office about 9 PHD’s failure to enforce the no-smoking policy at Fillmore Gardens. (Id. ¶ 74.) He also 10 sent an email to Defendant Fernandez, complaining about PHD’s unfair and inconsistent 11 treatment of Plaintiffs’ work order requests. (Id. ¶ 75.) In this email, Mr. Czyzewski 12 suggested that the disparate treatment was due to the maintenance worker’s “homophobia.” 13 (Id. ¶ 76.) Ms. Fernandez responded to Mr. Bollfrass that his complaints were harassing, 14 threatening, and in violation of his lease agreement. (Id. ¶ 76.) 15 In November 2017, Mr. Bollfrass sent another letter to HUD about Fillmore 16 Garden’s no-smoking policy. HUD responded by letter in February 2018 that it would 17 monitor PHD’s progress. (Id. ¶ 79.) 18 Mr. Bollfrass complained to HUD about PHD’s inconsistent enforcement of the no- 19 smoking policy again on April 15, 2018. (Id. ¶ 86.) Defendant Montgomery apparently 20 received this letter and cautioned Mr. Bollfrass that his letter to HUD could be considered 21 further harassment and a violation of his lease. (Id. ¶ 87.) HUD responded to Mr. Bollfrass 22 on July 13, 2018, that PHD had acknowledged his concerns, and that the Fillmore Gardens 23 residents should expect to experience improvements in the day-to-day operations at the 24 facility. (Id. ¶ 89.) 25 B. Arrest and Eviction 26 Mr. Bollfrass served as the President of the Tenant Council at Fillmore Gardens. 27 (Id. ¶ 93.) Defendant Magaard, a resident of Fillmore Gardens, served as a board member 28 of the Tenant Council. (Id. ¶ 90.) The SAC alleges that in 2018, the Tenant Council began 1 having “problems” with Ms. Magaard, which caused Mr. Bollfrass to resign as President. 2 (Id. ¶ 93.) Plaintiff Czyzewski succeeded Mr. Bollfrass as President. (Id. ¶ 94.) But he 3 also purportedly had “consistent problems” with Ms. Magaard. (Id. ¶ 96.) 4 At the June 21, 2018 Tenant Council meeting, a verbal altercation occurred between 5 Plaintiff Czyzewski and Defendant Magaard. (Id. ¶ 99.) After the altercation, allegedly at 6 Defendant Fernandez’s direction, Defendant Navarrette (the PHD property manager) told 7 Ms. Magaard to call the police, which she did. (Id. ¶ 102.) Officers McAbee and Martin 8 (the Officer Defendants) responded to the call and met with Ms. Magaard, Defendant 9 Fernandez and Defendant Bosshart in Ms. Fernandez’s office. (Id. ¶ 104.) This 10 conversation was captured on video by Officer McAbee’s body camera. (Id. ¶ 105.) 11 Ms. Magaard drafted an incident report regarding the altercation but told the Officer 12 Defendants that she did not desire prosecution. (Id. ¶¶ 111, 113.) Defendant Fernandez 13 directed Ms. Magaard to “take her time” with the incident report, and that she could have 14 Ms. Fernandez review it before submitting it. (Id. ¶ 112.) After Ms. Magaard left the 15 office, Ms. Fernandez proceeded to tell the Officer Defendants that Defendant 16 Montgomery had previously fired Mr. Czyzewski and that she was in the process of typing 17 an eviction notice to him. (Id. ¶¶ 116, 117.) At the Officer Defendants’ request, Ms. 18 Fernandez then reenacted the altercation that had occurred between Mr. Czyzewski and 19 Ms. Magaard, mocking the way that Mr. Czyzewski held his hands. (Id. ¶ 118.) When the 20 Officer Defendants inquired about the Tenant Council, Defendant Fernandez 21 acknowledged that there would be a lot of hoops to jump through with HUD to disband it. 22 (Id. ¶ 132.) 23 The Defendant Officers asked Defendant Fernandez if she wanted to press charges 24 against Mr. Czyzewski, (id. ¶ 127), and when Ms. Fernandez reached out to Ms. Grittman 25 for guidance, Ms. Grittman responded in a text message that “an arrest guarantees the 26 eviction.” (Id. ¶ 133.) Defendants Fernandez and Bosshart then agreed that they desired 27 prosecution for disorderly conduct and Ms. Fernandez listed herself as a victim in the 28 incident report. (Id. ¶ 145.) 1 The Officer Defendants arrested Mr. Czyzewski, who was taken to jail and charged 2 with threatening and intimidating and disorderly conduct. (Id. ¶ 148.) Defendant 3 Emmerson, who was previously the deputy director of PHD, was the original prosecutor in 4 Mr. Czyzewski’s criminal case. (Id. ¶ 154.) As a result of Mr. Czyzewski’s arrest and the 5 criminal charges, Plaintiffs were served with an eviction notice and were temporarily 6 evicted from Fillmore Gardens for two months. (Id. ¶¶ 153, 156.) Mr. Czyzewski was 7 ordered by the municipal court judge not have any contact with Ms. Fernandez or Ms. 8 Bosshart during the pendency of the criminal case. (Id. ¶ 153.) 9 Plaintiffs requested a formal hearing on the eviction notice. (Id. ¶ 162.) When 10 Plaintiffs asked PHD for the documents on which it intended to rely during the eviction 11 hearing, PHD and Defendant Navarrette allegedly refused to provide them. (Id. ¶ 163.) 12 The formal eviction hearing was held on July 31, 2019, and the hearing panel unanimously 13 set aside Plaintiffs’ eviction notice. (Id. ¶ 167.) Plaintiffs maintain that other residents 14 who engaged in more serious altercations involving physical violence were not evicted by 15 PHD or arrested and prosecuted like Mr. Czyzewski was. (Id. ¶¶ 157, 167.) 16 On August 1, 2018, Defendant Magaard applied for an injunction against 17 harassment against Plaintiff Czyzewski, which Plaintiffs allege was done at the urging of 18 PHD. (Id. ¶ 172.) Ms. Magaard’s application for the injunction was denied. 19 C. Alleged Retaliation and Disbandment of the Tenant Council 20 The SAC alleges that the PHD Defendants continued to retaliate against Plaintiffs 21 after they prevailed in the eviction hearing. (Id. ¶ 174.) On August 28, 2018, Plaintiff 22 Czyzewski emailed Defendants Montgomery, Fernandez, Stotler, Bosshart and Fernandez, 23 stating that he intended to proceed with a Tenant Council Meeting despite Management’s 24 announcement to the Fillmore Gardens residents that the Tenant Council board was 25 defunct. (Id. ¶ 178.) 26 The next week, Defendant Fernandez posted a letter around Fillmore Gardens, 27 (which was copied to Defendants Stotler, Grittman, Navarrette and Bosshart), accusing 28 Plaintiff Czyzewski of forcing residents to participate in Tenant Council and questioning 1 the Council’s validity. (Id. ¶¶ 179, 180, 183.) The letter also demanded evidence of a fully 2 elected board before the Tenant Council could take further action; and it required that the 3 Tenant Council produce all financial and meeting records to PHD. (Id. ¶ 182.) 4 In February 2019, Plaintiffs were issued a 14-day notice of termination of their lease 5 for past due rent, even though Plaintiffs maintain that their rent had been paid. (Id. ¶ 184.) 6 When Plaintiffs met with Defendant Hogan (PHD housing supervisor) to discuss the 7 termination notice, she proceeded to conduct a “supervisory audit” of Plaintiffs’ financial 8 statements to determine whether Plaintiffs were receiving additional income that would 9 make them ineligible for public housing assistance. (Id. ¶¶ 188-194.) Plaintiffs claim that 10 this audit was not provided for in PHD or HUD regulations. (Id. ¶ 194.) 11 Even though this action was not filed until May 2019, HUD sent a letter to Plaintiffs 12 in March 2019, indicating that it could no longer intervene to assist Plaintiffs with their 13 complaints due to their lawsuit against the City of Phoenix. (Id. ¶ 197.) Plaintiffs maintain 14 that no litigation was pending at that time and that PHD lied to HUD about the existence 15 of a lawsuit to deprive Plaintiffs of HUD oversight. (Id. ¶ 198.) 16 Plaintiffs claim that these collective actions by the PHD destroyed the Tenant 17 Council and caused the Fillmore Gardens residents to fear further participation or 18 organization in the Fillmore Gardens community. (Id. ¶ 203.) 19 III. LEGAL STANDARDS 20 Rule 12(b)(6) authorizes the Court to dismiss a claim for “failure to state a claim 21 upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion tests 22 the legal sufficiency of the claims asserted in the complaint, which is a question of law. 23 North Star Int’l., 720 F.2d at 580. To avoid a Rule 12(b)(6) dismissal, a complaint need 24 not contain detailed factual allegations; rather, it must plead “enough facts to state a claim 25 to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Facial 26 plausibility exists if the pleader pleads factual content that allows the Court to draw the 27 reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility 28 does not equal probability, but it requires more than a sheer possibility that a defendant has 1 acted unlawfully. Id. 2 IV. ANALYSIS 3 A. Count One (42 U.S.C. § 1983) 4 In Count One, Plaintiffs claim pursuant to 42 U.S.C. § 1983 that all Defendants 5 violated their rights under the First, Fourth and Fourteenth Amendments. Section 1983 6 provides that: [e]very person who, under color of any statute, ordinance, 7 regulation, custom, or usage, of any State or Territory or the 8 District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the 9 jurisdiction thereof to the deprivation of any rights, privileges, 10 or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or 11 other proper proceeding for redress . . . . 12 In order to recover under § 1983, the plaintiff must show that the conduct allegedly 13 causing the deprivation of a federal right is fairly attributable to state actors. Caviness v. 14 Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010). 15 1. Defendant Magaard 16 Preliminarily, the Court notes the inadequacy of the § 1983 claim against Ms. 17 Magaard (who is a private resident of Fillmore Gardens) and orders it dismissed. See 18 Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988) (court may on its 19 own initiative “note the inadequacy of the complaint and dismiss it for failure to state a 20 claim”). A private person acts “under color of” state law when involved in a conspiracy 21 with state officials to deprive someone of federal rights. See Tower v. Glover, 467 U.S. 22 914, 920 (1984). To establish liability for a conspiracy between a private actor and a state 23 actor, the plaintiff must show an agreement or meeting of the minds to violate constitutional 24 rights. Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010). To be liable, each 25 participant in the conspiracy must at least share the common objective of the conspiracy. 26 Id. 27 Here, the alleged conspiracy between Ms. Magaard and the PHD Defendants centers 28 on Ms. Magaard’s statements to police after her verbal altercation with Mr. Czyzewski, 1 and her request for an injunction against harassment against Mr. Czyzewski after Plaintiffs 2 prevailed in the eviction proceedings. (See Doc. 57, ¶ 172.) Plaintiffs also state that Mr. 3 Bollfrass resigned as President of the Tenant Council because “he believed” Ms. Magaard 4 and Ms. Fernandez were trying to remove him. (Id. ¶ 93.) With regard to Mr. Czyzewski’s 5 arrest, the SAC does not allege facts to show that Ms. Magaard prevented the Officer 6 Defendants from acting on their own judgment or discretion when they arrested him—in 7 fact, Ms. Magaard told the Officer Defendants that she did not desire prosecution. Nor 8 does the SAC show a “meeting of the minds” between Ms. Magaard and the PHD 9 Defendants to violate Plaintiffs’ constitutional rights through the unsuccessful pursuit of 10 an injunction against harassment or through the change in Tennant Council leadership from 11 Mr. Bollfrass to Mr. Czyzewski. Accordingly, the Court finds that the SAC failed to plead 12 that Ms. Magaard was acting “under color of law.” Because § 1983 excludes from its reach 13 purely private conduct, Count One against Ms. Magaard is dismissed. 14 2. Fourth Amendment 15 Mr. Czyzewski alleges that the Officer Defendants arrested him without probable 16 cause in violation of the Fourth Amendment. (Doc. 57, ¶ 215.) The Officer Defendants 17 argue that Mr. Czyzewski is barred from disputing probable cause in this action because 18 he entered into a diversionary plea agreement in municipal court for events surrounding 19 his altercation with Ms. Magaard, admitting that he committed disorderly conduct. (See 20 Doc. 66-2); (Doc. 80 at 6.) The Officer Defendants alternatively assert that there was 21 probable cause to arrest Mr. Czyzewski for disorderly conduct. The Court declines to find, 22 based on language contained in Mr. Czyzewski’s diversionary plea agreement, that he is 23 estopped from arguing in this action that the Officer Defendants arrested him without 24 probable cause. In any event, the Court agrees with the Officer Defendants that there was 25 probable cause for Mr. Czyzewski’s arrest. 26 Preliminarily, in ruling on the Motion to Dismiss, the Court has considered Mr. 27 Czyzewski’s “Positive Alternatives Diversion Program Plea Agreement (Anger 28 Management),” which Defendants attached as Exhibit 2 to the Motion to Dismiss (Doc. 1 66-2).3 Mr. Czyzewski pled guilty in municipal court to disorderly conduct, but the plea 2 agreement stated that the charges against him would be dismissed and no judgment of 3 conviction would be entered if he complied with the terms of the plea agreement, including 4 attending a diversion program. (Doc. 66-2 at 4.) The parties in this action agree that Mr. 5 Czyzewski completed the terms of the diversion program, and that the criminal charges 6 against him were dismissed without prejudice for that reason. (Doc. 76 at 3); (Doc. 66 at 7 4-5.) 8 Nonetheless, the Officer Defendants argue that paragraph six of Mr. Czyzewski’s 9 plea agreement bars his Fourth Amendment claim. Paragraph six of the plea states that the 10 defendant “is precluded from denying in any civil proceeding the essential allegations for 11 the criminal offense of which he/she is convicted. The defendant further understands that 12 a guilty or no contest plea will result in a conviction.” (Doc. 66-2 at 2.) A.R.S. § 13-807 13 states the same. See A.R.S. § 13-807 (a defendant who is convicted in a criminal 14 proceeding is precluded from subsequently denying in any civil proceeding the essential 15 allegations of the criminal offense). Because the criminal charges against Mr. Czyzewski 16 were dismissed, and because neither the plea agreement nor A.R.S. § 13-807 precludes him 17 from denying the allegations of the underlying offense in the absence of a conviction, the 18 Court finds that Mr. Czyzewski’s Fourth Amendment claim against the Officer Defendants 19 is not barred. 20 The Court now turns to whether the SAC pleads plausible facts to show that the 21 Officer Defendants lacked probable cause to arrest Mr. Czyzewski. “Probable cause to 22 arrest exists when officers have knowledge or reasonably trustworthy information 23 sufficient to lead a person of reasonable caution to believe that an offense has been or is 24 being committed by the person being arrested.” United States v. Lopez, 482 F.3d 1067,

25 3 While review of a motion brought pursuant to Rule 12(b)(6) is generally limited to the complaint, Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993), courts may 26 “consider certain [other] materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without 27 converting the motion to dismiss into a motion for summary judgment,” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The Court has considered the diversionary plea 28 agreement submitted as Exhibit 2 to the Motion to Dismiss because it is a certified copy of an official and original Phoenix Municipal Court electronic record. (See Doc. 66-2.) 1 1072 (9th Cir.2007) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). In support of their 2 Motion to Dismiss, the Officer Defendants submitted a transcript of their interactions with 3 Mr. Czyzewski, which were captured by Officer McAbee’s body camera.4 (Doc. 80 at 5- 4 9.) The transcript reflects that Mr. Czyzewski told the Officer Defendants there were forty- 5 nine people in the Tenant Council meeting who witnessed the verbal altercation between 6 him and Ms. Magaard, and that he knew the argument was disruptive to them. Mr. 7 Czyzewski also admitted to the officers that he raised his fist and hit the table out of 8 frustration before approaching Ms. Magaard while he yelled. (Doc. 80-1 at 56.) Ms. 9 Fernandez, Ms. Bosshart, and Ms. Magaard reported the same. 10 The SAC does not provide a counternarrative to the events reflected in the transcript. 11 In fact, Plaintiffs do not dispute that Mr. Czyzewski made voluntary statements to the 12 Officer Defendants, confessing to the crime of disorderly conduct; nor do they dispute that 13 the transcript, taken as a whole, evidences probable cause for Mr. Czyzewski’s arrest. 14 (Doc. 85 at 6.) Instead, Plaintiffs argue that the Officer Defendants obtained Mr. 15 Czyzewski’s confession in violation of Miranda v. Arizona, and that the Officers therefore 16 improperly based their determination of probable cause on his statements. See Miranda, 17 384 U.S. 436, 479 (1966) (requiring certain warnings before custodial interrogation). (Doc. 18 85 at 6.) 19 The alleged Miranda violation is inapposite for two reasons. First, any purported 20 Miranda violation is not actionable under § 1983 unless the statements were used in a 21 criminal proceeding, which did not occur in this case. See Chavez v. Martinez, 538 U.S. 22 760 (2003). Second, the Ninth Circuit has recognized that voluntary statements may be 23 used to determine whether probable cause existed, even if the suspect should have been 24 read Miranda warnings first. See United States v. Patterson, 812 F.2d 1188, 1193 (9th Cir. 25 1987) (finding in criminal case that voluntary statements taken in violation of Miranda 26 may be used to establish probable cause); see also Burrell v. Virginia, 395 F.3d 508, 515

27 4 Plaintiffs do not dispute the accuracy of the transcript. Because Plaintiffs have incorporated the body camera footage by reference in the Complaint and rely on the 28 interactions depicted therein to support their claims, the Court will consider the transcript without converting the motion to one for summary judgment. Ritchie, 342 F.3d at 908. 1 (4th Cir. 2005) (finding in a § 1983 action that officers properly considered suspect’s 2 refusal to provide insurance information when evaluating probable cause, even though 3 Fifth Amendment may have barred admission of suspect’s refusal in criminal case). 4 Here, the undisputed evidence reflects that Mr. Czyzewski admitted to the Officer 5 Defendants that he had committed disorderly conduct. (Doc. 80-1 at 51); see A.R.S. § 13- 6 2904(A)(1) (disorderly conduct occurs where a person, with intent to disturb the peace or 7 quiet of another person, or with knowledge of doing so, engages in fighting, violent or 8 seriously disruptive behavior). The statements from Ms. Fernandez, Ms. Bosshart, and 9 Ms. Magaard reflect the same. Because the alleged Miranda violation does not alter the 10 probable cause analysis, the Court finds that Plaintiffs have not pleaded plausible facts to 11 show that the Officer Defendants arrested Mr. Czyzewski without probable cause. 12 Therefore, the Motion to Dismiss the Fourth Amendment § 1983 claim against the Officer 13 Defendants and their spouses is granted. 14 3. First Amendment 15 a. Impeding Plaintiffs’ Efforts to Organize and Associate 16 Plaintiffs allege that Defendants impeded their efforts to organize and associate. 17 Among the rights protected by the First Amendment are the rights of individuals to speak 18 and petition the government for the redress of grievances, and to engage in group efforts 19 toward those ends without interference by the State. Roberts v. U.S. Jaycees, 468 U.S. 609, 20 622 (1984). Government action that infringes upon these freedoms may take numerous 21 forms, including action that seeks to impose penalties or withhold benefits from individuals 22 because of their membership in a disfavored group, or trying to interfere with the internal 23 organization or affairs of the group. See id. (citing cases). Plaintiffs claim that Defendants 24 have impeded their efforts to organize by engaging in conduct that was designed to scare 25 Plaintiffs from participating and organizing in the Fillmore Gardens community, like 26 subjecting Plaintiffs to eviction proceedings and supervisory audits, and ignoring their 27 work order requests. (Doc. 57, ¶ 214.) 28 Defendants respond that Plaintiffs have failed to allege the Tenant Council was 1 engaged in speech aimed at the redress of grievances when the alleged adverse actions were 2 taken. (Doc. 66 at 15.) The Court does not agree. The SAC asserts that the Fillmore 3 Gardens Tenant Council is a resident union, and that Plaintiffs, as members of that group, 4 disputed PHD’s funding of the Tenant Council, reported unsanitary and dangerous property 5 conditions to PHD, sought to have the no-smoking policy enforced, and made complaints 6 to HUD about PHD. (Doc. 57, ¶ 28) These are all forms of speech plausibly construed as 7 petitions to the government for redress of grievances, and a correlative freedom to engage 8 in group efforts toward that end is guaranteed by the First Amendment. Roberts, 468 U.S. 9 at 622. The Motion to Dismiss Plaintiffs’ § 1983 First Amendment Association claim is 10 denied. 11 b. Retaliation 12 The First Amendment “forbids government officials from retaliating against 13 individuals for speaking out” against the Government. Blair v. Bethel Sch. Dis., 608 F. 3d 14 540, 543 (9th Cir. 2010). To recover under § 1983 for such retaliation, a plaintiff must 15 prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subject 16 to adverse action that would chill a person of ordinary firmness from continuing to engage 17 in the activity; and (3) there was a substantial causal relationship between the 18 constitutionally protected activity and the adverse action. Id. (citations and quotations 19 omitted). Plaintiffs allege that Defendants retaliated against them for exercising their First 20 Amendment rights. The alleged retaliations include firing Mr. Czyzewski, subjecting 21 Plaintiffs to eviction proceedings, evicting Plaintiffs from their public housing for two 22 months during the pendency of the eviction proceedings, disbanding the Tenant Council, 23 depriving Plaintiffs of HUD oversight by misrepresenting that Plaintiffs had an active 24 lawsuit against PHD; arresting Mr. Czyzewski, and prosecuting Mr. Czyzewski. For 25 reasons that follow, the Court finds that Plaintiffs have stated a § 1983 First Amendment 26 retaliation claim. The Court however dismisses Plaintiffs’ retaliatory arrest claims against 27 the individual Defendants and Plaintiffs’ retaliatory prosecution claims against all 28 Defendants. 1 i. Protected Activity and Adverse Action 2 Defendants argue that Plaintiffs have failed to identify how they engaged in 3 constitutionally protected activity or that they suffered any adverse action. (Doc. 66 at 14); 4 (Doc. 80 at 2.) For reasons previously stated, the SAC sufficiently alleges that Plaintiffs 5 engaged in constitutionally protected activities under the First Amendment. The SAC 6 further alleges that due to Plaintiffs’ engagement in these constitutionally protected 7 activities, Defendants terminated Mr. Czyzewski’s public employment, subjected them to 8 eviction proceedings, evicted Plaintiffs from their public housing for two months, 9 disbanded the Tenant Council, deprived them of HUD oversight by misrepresenting that 10 Plaintiffs had an active lawsuit against PHD, and ignored their work order requests. These 11 are all adverse actions for which the SAC sufficiently establishes a causal connection to 12 the constitutionally protected activity. The Motion to Dismiss Plaintiffs’ § 1983 First 13 Amendment Retaliation claim, with respect to these alleged adverse actions, is denied. 14 ii. Noerr-Pennington Doctrine 15 Defendants alternatively argue that Plaintiffs’ claim about retaliatory eviction 16 proceedings is barred by the Noerr-Pennington doctrine, which provides that those who 17 petition a department of the government for redress are generally immune from statutory 18 liability for their petitioning conduct. (Doc. 66 at 15-16); Sosa v. DIRECTV, Inc., 437 F.3d 19 923, 929-31 (9th Cir. 2006). As the Court understands it, Defendants’ argument is that the 20 eviction process against Plaintiffs had the potential to result in litigation (if for example, 21 Plaintiffs refused to vacate the premises), and that therefore the Court should treat the 22 eviction process as an exercise of Defendants’ First amendment rights. (Doc. 66 at 15.) 23 The Court is not persuaded. Defendants cite no case for their proposition that the initiation 24 of eviction proceedings by a government employee during the course of government 25 employment is an activity protected by the First Amendment. (Cf. Doc. 78 at 9.) The 26 Motion to Dismiss Plaintiffs’ § 1983 First Amendment Retaliation claim on this basis is 27 denied. 28 1 iii. Hartman doctrine 2 Defendants move to dismiss Plaintiffs’ retaliatory prosecution claim pursuant to the 3 Hartman doctrine, which requires that the plaintiff plead and prove the absence of probable 4 cause when claiming that he was prosecuted in retaliation for the exercise of his First 5 Amendment rights. Hartman v. Moore, 547 U.S. 250, 256 (2006). A § 1983 action for 6 retaliatory prosecution is not brought against the prosecutor, “who is absolutely immune 7 from liability for the decision to prosecute.” Id. at 262 (quoting Imbler v. Pachtman, 424 8 U.S. 409, 431 (1976)). Instead, in a retaliatory prosecution claim, the defendant will be a 9 non-prosecuting official who may have influenced the prosecutorial decision. Hartman, 10 547 U.S. at 256. The plaintiff in a retaliatory prosecution case must show that the non- 11 prosecuting official acted in retaliation and that he induced the prosecutor to bring charges 12 that would not have been initiated without his urging. Id. This requires the plaintiff to 13 plead and prove an absence of probable cause. Id. at 265-266. For reasons already stated, 14 Plaintiffs failed to plead facts that plausibly show there was no probable cause to charge 15 Mr. Czyzewski with disorderly conduct.5 It is therefore ordered granting Defendant’s 16 Motion to Dismiss Plaintiffs’ § 1983 retaliatory prosecution claim. 17 iv. Retaliatory Arrest 18 The SAC alleges that Mr. Czyzewski was arrested in retaliation for the exercise of 19 his First Amendment rights. Mr. Czyzewski brings this claim against the individual PHD 20 Defendants, PHD, and the City of Phoenix. Where a plaintiff alleges retaliatory arrest 21 against an official in their individual capacity, he must plead and prove the absence of 22 probable cause. Nieves v. Bartlett, --- U.S. ---, 139 S. Ct. 1715, 1724 (2019) (extending 23 Hartman to the retaliatory arrest context). Where a plaintiff alleges that the wrongful arrest 24 was the result of “an official policy motivated by retaliation,” however, he need not plead 25 and prove the absence of probable cause. Lozman v. City of Rivera Beach, 585 U.S. ---, 26 138 S. Ct. 1945, 1947-48 (2018) (probable cause does not categorically bar a plaintiff from

27 5 Because the Court finds that Plaintiffs failed to plead an absence of probable cause, the Court need not decide Defendants’ alternate argument that they are entitled to absolute 28 immunity for statements they made to police under Ledvina v. Cerasani, 146 P.3d 70, 75 (App. 2006). (Doc. 66 at 13). 1 suing municipality for retaliatory arrest if plaintiff was arrested pursuant to official 2 municipal policy of retaliation). For reasons already stated, the Court finds that the SAC 3 failed to plead and prove the absence of probable cause for Mr. Czyzewski’s arrest. 4 Therefore, the Motion to Dismiss Plaintiff Czyzewski’s retaliatory arrest claim against the 5 individual Defendants is granted. 6 Even though there was probable cause to arrest Mr. Czyzewski, his retaliatory arrest 7 claim against the City of Phoenix will survive the Rule 12(b)(6) Motion to Dismiss if the 8 SAC has pleaded facts that show Mr. Czyzewski was arrested as the result of an official 9 policy motivated by retaliation. Lozman, 585 U.S. at ---, 138 S. Ct. at 1947-48. While the 10 Supreme Court in Lozman did not decide whether the plaintiff’s arrest was taken pursuant 11 to an official policy, id. at ---, 138 S. Ct. at 1951, it allowed the retaliatory arrest claim to 12 proceed against the City, even though there was probable cause for the plaintiff’s arrest, 13 based on five considerations: (1) the plaintiff had alleged more governmental action than 14 simply his arrest—he claimed that the City “itself retaliated against him pursuant to an 15 ‘official municipal policy’ of intimidation;” (2) the plaintiff alleged that the retaliation plan 16 was premeditated; (3) the plaintiff had objective evidence of a policy motivated by 17 retaliation; (4) the alleged official policy of retaliation was for prior, protected speech 18 unrelated to the criminal offense for which the arrest was made; and (5) the right to petition 19 the government for redress of grievances is “one of the most precious of the liberties 20 safeguarded by the Bill of Rights.” Id. at ---, 138 S. Ct. at 1954-55; see also DeMartini v. 21 Town of Gulf Stream, 942 F.3d 1277, 1307 (11th Cir. 2019) (interpreting Lozman to have 22 established a five-pronged exception to Hartman’s no-probable cause requirement). 23 Applying these Lozman factors, the Court finds that Plaintiffs have stated plausible 24 facts that, if true, would establish that Mr. Czyzewski was arrested as the result of an 25 official policy motivated by retaliation. First, Plaintiffs have alleged more governmental 26 action than simply Mr. Czyzewski’s arrest. They alleged that PHD engaged in an official 27 policy of intimidation and retaliation by issuing lease violation notices, subjecting 28 Plaintiffs to financial audits, initiating eviction proceedings, firing Mr. Czyzewski, 1 mishandling work order requests, and hindering the Tenant Council’s ability to organize. 2 Second, Plaintiffs allege that the retaliation was premeditated and spanned the course of 3 many months. Third, Plaintiffs have objective evidence of retaliation—Defendant 4 Fernandez told the Officer Defendants she wanted them to arrest Mr. Czyzewski for 5 disorderly conduct based on a text message she received from Defendant Grittman (the 6 PHD housing manager) that the arrest would guarantee Mr. Czyzewski’s eviction from 7 Fillmore Gardens. Fourth, Plaintiffs allege that Mr. Czyzewski was arrested in retaliation 8 for his prior, protected speech and associations (not because he was engaging in protected 9 speech at the time of his arrest). Fifth, Plaintiffs allege that PHD retaliated against them to 10 hinder them from petitioning the government for redress of grievances. Accordingly, the 11 Court finds that Plaintiffs have stated a claim for retaliatory arrest against the City of 12 Phoenix, even though the Officer Defendants had probable cause to arrest him. The Motion 13 to Dismiss Count Plaintiffs’ retaliatory arrest claim against the City of Phoenix is denied. 14 4. Fourteenth Amendment 15 a. Procedural Due Process 16 Plaintiffs claim that Defendants violated their Fourteenth Amendment right to due 17 process by not allowing Plaintiffs to review records prior to their formal eviction hearing 18 and by terminating Mr. Czyzewski’s employment as a resident assistant without notice or 19 opportunity to be heard. (Doc. 57 at 40, ¶ 215.) “Procedural due process imposes 20 constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ 21 interests within the meaning of the Due Process Clause of the Fifth or Fourteenth 22 Amendments.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). A § 1983 claim based on 23 procedural due process has three elements: (1) a liberty or property interest protected by 24 the Constitution; (2) a deprivation of the interest by the government; and (3) lack of 25 process. Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). 26 Regarding Plaintiffs’ claim that Defendant Fernandez violated Plaintiffs’ rights to 27 due process by refusing to show them in advance of the eviction hearing the documents 28 she submitted, (Doc. 57, ¶ 257), the Court finds that Plaintiffs have failed to state a claim 1 upon which relief may be granted. Plaintiffs have not alleged that the documents Ms. 2 Fernandez presented were any different than the documents Mr. Czyzewski himself 3 obtained in the criminal case. Furthermore, Plaintiffs’ eviction notice was ultimately 4 rescinded after the eviction hearing during which the purported due process violation 5 occurred. Defendants’ Motion to Dismiss this portion of Plaintiffs’ § 1983 Fourteenth 6 Amendment claim is granted. 7 Turning to Mr. Czyzewski’s allegation that he was fired from his Resident Assistant 8 position without the opportunity to be heard, the Court finds that Plaintiffs have alleged 9 enough facts to state a claim to relief that is plausible on its face. Plaintiffs allege that the 10 third-party vendor who employed Mr. Czyzewski as a resident assistant at PHD had a 11 policy for “just cause” termination and an intermediate step involving discipline if 12 employees were not in compliance with the policy. Plaintiffs claim that PHD adhered to 13 the same policies. (Doc. 57, ¶ 46.) Notwithstanding these policies, Mr. Czyzewski was 14 apparently fired “on the spot” by Defendant Emmerson, who told Defendant that he could 15 fire Mr. Czyzewski for any reason he wanted. According to the SAC, Defendant 16 Emmerson also told Plaintiffs not to sue him. (Id. ¶ 67.) If Mr. Czyzewski was a public 17 employee with a protected property interest in his employment, he was due some pre- 18 termination process before he was terminated. See Cleveland Bd. of Educ. v. Loudermill, 19 470 U.S. 532, 542 (1985). Defendants’ Motion to Dismiss this portion of Plaintiffs’ § 1983 20 Fourteenth Amendment claim is denied. 21 b. Equal Protection 22 Plaintiffs claim that Defendants violated the Equal Protection Clause of the 23 Fourteenth Amendment by subjecting them to disparate treatment because of their sexual 24 orientation. The Equal Protection Clause provides that “[n]o state shall . . . deny to any 25 person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. 26 The Ninth Circuit has held that § 1983 claims based on equal protection violations must 27 “plead intentional unlawful discrimination or allege facts that are at least susceptible of an 28 inference of discriminatory intent.” Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1 1022, 1026 (9th Cir. 1998). 2 Here, Plaintiffs allege acts of discrimination based on their sexual orientation, but 3 the facts alleged do not show unlawful discrimination or support an inference of 4 discriminatory intent. The allegations in the SAC related to alleged discrimination on the 5 basis of sexual orientation include Dina Fernandez’s mocking Mr. Czyzewski for the way 6 he held his arms during the altercation with Ms. Magaard; Ms. Fernandez’s reaction to 7 Plaintiffs’ concerns about the maintenance worker’s homophobia, and Defendant 8 Fernandez’s statement about Plaintiffs’ “lack of hygiene,” when she went to investigate the 9 smell of cigarette smoke in their apartment. These facts do not demonstrate an inference 10 of discriminatory intent or disparate treatment under the Equal Protection clause. 11 Defendant’s Motion to Dismiss Plaintiffs’ § 1983 claim under the Equal Protection Clause 12 of the Fourteenth Amendment is granted. 13 5. Defendant Stotler 14 Defendant Stotler moves to dismiss all individual lability claims asserted against 15 her in Count One. (Doc. 80 at 2.) She argues that the allegations in the SAC fail to establish 16 she was personally involved in the alleged constitutional deprivations. (Doc. 2-3.) The 17 Court disagrees. 18 A supervisor may be held liable under § 1983 for her own culpable action or inaction 19 in the training, supervision, or control of her subordinates; for her acquiescence in the 20 constitutional deprivations of which the complaint is made; or for conduct that showed 21 reckless or callous indifference to the rights of others. Larez v. City of Los Angeles, 946 22 F.2d 630, 646 (9th Cir. 1991) (citations and quotations omitted); Jackson v. City of 23 Bremerton, 268 F.3d 646, 653 (9th Cir. 2001); Taylor v. List, 880 F.2d 1040, 1045 (9th 24 Cir. 1989) (defendant can be held liable for failure to act). Here, the SAC alleges that 25 Defendant Stotler was the director of PHD and approved and oversaw the actions of the 26 PHD Defendants. The SAC further claims that Ms. Stotler was aware of the alleged 27 impediments to Plaintiffs’ efforts to organize and engage in activism through the Tenant 28 Council. (Doc. 57, ¶ 178) (Plaintiff Bollfrass emailing Defendant Stotler that the Fillmore 1 Gardens Management told residents that the Resident Council was defunct); (id. ¶ 183) 2 (Defendant Fernandez posting a letter at Fillmore Gardens, which was copied to Ms. 3 Stotler, stating that the Tenant Council would no longer be recognized as a duly elected 4 resident council). The Court finds that Plaintiffs have pleaded sufficient facts to state a 5 claim for individual supervisory liability against Ms. Stotler. Defendant Stotler’s Motion 6 to Dismiss the remaining individual capacity claims against her is denied. 7 B. Count Two (Unconstitutional Policies, Customs, and Failure to Train) 8 In a § 1983 case, a city or municipality cannot be subject to liability unless the harm 9 was caused in the implementation of “official municipal policy.” Lozman, --- U.S. ---, 138 10 S. Ct. at 1951 (quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 11 (1978)). In Count Two, Plaintiffs allege that Defendants PHD, Stotler, Montgomery, 12 Emmerson, Grittman, Fernandez, Hogan, Navarrette, and Bosshart were official policy 13 makers for PHD, and as such, that they had the authority and responsibility to establish 14 PHD policies, and to train officers, agents, and employees of PHD. (Doc. 57, ¶ 226.) 15 Plaintiffs further allege that PHD has a policy of prohibiting constitutionally protected 16 activity, (id. ¶ 230) and that the prior Tenant Council was disbanded after PHD took similar 17 retaliatory actions against it and its board members, (id. ¶ 38.) To establish knowledge, 18 Plaintiffs point to an email they sent to the PHD Defendants, including Ms. Stotler (the 19 Director of PHD), complaining that Fillmore Gardens Management told residents the 20 Resident Council had been disbanded (Doc. 57, ¶ 178), as well as a letter from Defendant 21 Fernandez to the Fillmore Garden residents, which was copied to various PHD supervisors 22 and managers and stated the same. (Id. ¶ 183.) 23 Defendants move to dismiss Count Two, asserting that Plaintiffs failed to identify 24 any specific systemic and widespread policies, customs, or trainings of the City of Phoenix 25 that are constitutionally deficient. (Doc. 80 at 4.) The Supreme Court has rejected a 26 heightened pleading requirement for § 1983 municipal liability claims, and the 27 “plausibility” standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), has not 28 affected federal courts’ continued rejection of a heightened standard. See Leatherman v. 1 Tarrant County, 507 U.S. 163, 168 (1993) (rejecting a more demanding rule for § 1983 2 claims than for pleading other kinds of claims for relief); see Schaeffer v. Whitted, 121 F. 3 Supp. 3d 701, 718 (W.D. Tex. 2015) (noting the uncertainty of Leatherman, post Iqbal- 4 Twombly, but allowing claim to proceed where defendant municipality was provided fair 5 notice and allegations were not boilerplate); see also Riley v. Cty. of Cook, 682 F. Supp. 2d 6 856, 861 (E.D. Ill. 2010) (applying Leatherman post-Twombly). Because the Court 7 recognizes that Plaintiffs may at this juncture lack the actual details concerning 8 supervisors’ interactions with employees accused of committing constitutional violations, 9 the Court finds that Plaintiffs have satisfied the requirements of Rule 12(b)(6) by asserting 10 factual allegations, that if proven, would establish the elements of municipality liability 11 under § 1983. 12 Defendants additionally argue that naming the PHD Defendants in their official 13 capacities is redundant to naming the City of Phoenix in their municipality liability claim, 14 and the Court agrees. Plaintiffs do not meaningfully dispute that the official capacity 15 claims are redundant and duplicative to the municipality liability claim against the City of 16 Phoenix. (Doc. 76 at 10-11) (arguing solely that individual and official capacity claims are 17 not redundant). When both a municipal officer and a local government entity are named as 18 defendants in the complaint, a court may dismiss the officer as a redundant officer. See, 19 e.g., Kentucky v. Graham, 473 U.S. 159, 166 (1985) (official capacity suits are in all 20 respects to be treated as a suit against the entity); Love-Lane v. Martin, 355 F.3d 766, 783 21 (4th Cir. 2004). It is therefore ordered granting Defendants’ Motion to Dismiss Count Two 22 against Defendants Stotler, Montgomery, Emmerson, Grittman, Fernandez, and Hogan. 23 The Motion to Dismiss Count Two against the City of Phoenix is denied. 24 C. Count Three (Violation of A.R.S. § 33-1381) 25 Plaintiffs allege in Count Three that Defendants PHD, Bosshart, Fernandez and 26 Navarrette retaliated against them in violation of A.R.S. § 33-1381 for Plaintiffs’ 27 “complaints to governmental agencies such as PHD and HUD, and for becoming members 28 of an organizing tenants’ unions and similar organizations such as Tenant Council.” (Doc. 1 57, ¶ 234.) Section 33-1381(A)(1)-(4) of the Arizona Residential Landlord and Tenant Act 2 (“ARLTA”) states: 3 [A] landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for 4 possession after . . . (1) [t]he tenant has complained to a 5 governmental agency charged with responsibility for enforcement of a building or housing code of a violation 6 applicable to the premises materially affecting health and 7 safety; (2) [t]he tenant has complained to the landlord of a violation under § 33-1324[6]; [3] [t]he tenant has organized or 8 become a member of a tenants’ union or similar organization; 9 [or] (4) [t]he tenant has complained to a governmental agency charged with the responsibility for enforcement of the wage- 10 price stabilization act. 11 If a landlord violates § 33-1381(A) by engaging in retaliatory conduct against the 12 tenant, the tenant is entitled to the remedies enumerated in A.R.S. § 33-1367 (the “remedies 13 statute”). See A.R.S. § 33-1367(B). The remedies statute states: 14 If the landlord unlawfully removes or excludes the tenant from 15 the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of electric, gas, water 16 or other essential service to the tenant, the tenant may recover 17 possession or terminate the rental agreement and, in either case, recover an amount not more than two months’ periodic 18 rent or twice the actual damages sustained by him, whichever 19 is greater. . . . Defendants PHD, Bosshart, Fernandez and Navarrette move to dismiss Count 20 21 Three, asserting that there is no independent claim for a violation of A.R.S. § 33-1381 22 without a corresponding eviction in progress. (Doc. 66 at 6.) In support of their position Defendants point to the remedies statute, which allows for actual damages if the landlord 23 24 has unlawfully removed or excluded the tenant from the premises or caused the interruption 25 of essential services. (Doc. 66 at 6.) Because Plaintiffs prevailed in their eviction hearing and there is no longer a pending eviction action, Defendants argue that Plaintiffs have failed 26

27 6 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 28 the landlord shall make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. 1 to state a claim under the ARLTA. Plaintiffs respond that Arizona case law has recognized 2 a tenant’s right to recover tort damages under the ARLTA outside of an eviction action. 3 (Doc. 76 at 17.) The Court agrees with Plaintiffs. 4 In Thomas v. Goudreault, the Arizona Court of Appeals upheld a jury award for 5 retaliatory damages under A.R.S. §§ 33-1381 and 13-1367 where the landlord had 6 threatened eviction of the tenants in retaliation for their complaints about the condition of 7 the property. 163 Ariz. 159, 163, 170 (App. 1989). Although the court of appeals in 8 Thomas did not address the argument Defendants raise here, it affirmed the jury award for 9 retaliatory damages even though there had been no corresponding eviction action. Id. 10 Because the Court agrees that A.R.S. § 33-1381(A) provides a cause of action without a 11 corresponding eviction-in-progress, Defendants’ Motion to Dismiss on that basis is denied. 12 Defendants alternatively argue that there is no link between the eviction process 13 (which ultimately did not result in an eviction), and the alleged retaliatory conduct. (Doc. 14 66 at 7.) Instead, Defendants claim that the eviction proceedings were instituted by 15 Defendants as a result of Plaintiffs’ failure to comply with the terms of their lease, including 16 the requirement that Plaintiffs refrain from harassing and disturbing other residents. (Id.) 17 Because the SAC alleges that an independent panel determined Defendants did not have a 18 valid reason to evict Plaintiffs, (Doc. 57, ¶ 167)—and because Defendants initiated the 19 eviction proceedings after Plaintiffs complained to HUD and PHD about the no-smoking 20 policy, and after Plaintiffs “clashed heads” with Defendants as Tenant Council activists— 21 the Court finds that the SAC states a plausible claim to relief under A.R.S. § 33-1381(A). 22 Defendants’ motion to dismiss Count Three is denied. 23 D. Count Four (Violation of Phoenix City Codes 18-11.16 and 18-11.20) 24 Plaintiffs allege that Defendants PHD and Fernandez violated Phoenix City Codes 25 (“PCC”) sections 18-11.16(A)-(B) and 18.11.20 by coercing, intimidating, threatening and 26 interfering with Plaintiffs “in and for exercising of their rights.” (Doc. 57, ¶ 242.) Plaintiffs 27 further allege that Defendants PHD and Fernandez violated the PCC by discriminating 28 against them because of their sexual orientation. (Id. ¶¶ 239-244.) 1 Section 18-11.16(A) of the PCC prohibits discrimination in sales and rentals on the 2 basis of sexual orientation. PCC § 18-11.16(A) (“A person may not refuse to sell or rent 3 after a bona fide offer has been made or refuse to negotiate for the sale of or otherwise 4 make unavailable or deny a dwelling to any person because of . . . sexual orientation . . . .”) 5 Section 18-11.16(B) prohibits a person from “discriminat[ing] against any person in the 6 terms, conditions or privileges of sale or rental of a dwelling, or in providing services or 7 facilities in connection with the sale or rental, because of . . . sexual orientation . . . .” 8 Phoenix City Code § 18-11.16(B). 9 Defendants argue that the allegations in the SAC do not show that Plaintiffs were 10 discriminated against because of their sexual orientation. (Doc. 66 at 9.) Plaintiffs assert 11 in response that “[t]here are a plethora of facts and allegations showing disparate and unfair 12 treatment of Plaintiffs,” (Doc. 76 at 18), but Plaintiffs do clarify those specific facts in their 13 Response. To the extent the SAC points to Dina Fernandez’s mocking of Mr. Czyzewski’s 14 mannerisms, her reaction to Plaintiffs’ concerns about the maintenance worker’s 15 homophobia, and Defendant Fernandez’s statement about Plaintiffs’ “lack of hygiene,” 16 these facts do not demonstrate that Plaintiffs were discriminated against in the services they 17 were provided because of their sexual orientation. Nor do the alleged facts show that 18 Plaintiffs were denied a dwelling due to sexual orientation. 19 The Court next addresses Plaintiffs claim under PCC § 18-11.20, which states: 20 A person may not coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or having exercised 21 or enjoyed, or on account of his having aided or encouraged 22 any other person in the exercise or enjoyment of, any right granted or protected by this section and Sections 18-11.16 23 [discrimination in sales and rentals], 18-11.17 [publication of 24 sales or rentals], 18-11.18 [inspection of dwelling], 18-11.19 [entry into neighborhood], 18-11.21[discrimination due to 25 disability], 18-11.22 [residential real estate transactions] and 26 18-11.23 [brokerage services]. The Court agrees with Defendants that the SAC fails to allege facts related to 27 Plaintiffs’ exercise or enjoyment of their rights under the various subsections referenced 28 1 within PCC § 18-11.20. (Doc. 66 at 9.) As stated above, the alleged facts do not show a 2 violation of PCC § 18.11-16. Nor do they demonstrate that Defendants published any 3 notice or statement indicating a preference, limitation, or discrimination based on sexual 4 orientation, see PCC § 18-11.17, or that Defendants misrepresented to Plaintiffs because 5 of their sexual orientation the availability of units for rent at Fillmore Gardens, see PCC § 6 18-11.18. Similarly, the SAC does not allege facts related to an inducement to sell or rent, 7 see PCC § 18-11.19; nor does it allege facts related to discrimination for disability, see 8 PCC § 18-11.21. Finally, the Court agrees with Defendants that PCC §§ 18-11.22 and 18- 9 11.23, which apply to persons whose business involves engaging in residential real estate 10 related transactions, do not apply to the Defendants as public housing entities or employees. 11 (Doc. 66 at 9.) Defendants’ Motion to Dismiss Count Four is granted. 12 E. Count Five (Abuse of Process) 13 In Count Five, Plaintiffs allege that Defendant Magaard abused the injunction 14 against harassment process against Mr. Czyzewski as a “continuation of her campaign” to 15 harass them, inflict emotional distress upon Plaintiffs, and to oust them from the Tenant 16 Council and Filmore Gardens. (Doc. 57, ¶¶ 247, 248.) The PHD Defendants move to 17 dismiss this count in a footnote. (Doc. 66 at 10, n.9.) Although the PHD Defendants lack 18 standing to contest the allegations against Ms. Magaard, the Court nonetheless notes the 19 inadequacy of this count and orders it dismissed. See Sparling, 864 F.2d at 638. 20 Arizona courts have described abuse of process as “an act done under the authority 21 of the court for the purpose of perpetrating an injustice, i.e., a perversion of the judicial 22 process to the accomplishment of an improper purpose.” Fappani v. Bratton, 243 Ariz. 23 306, 309 (App. 2017). The elements of an abuse of process claim under Arizona law are: 24 (1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the 25 regular conduct of the proceedings. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257 (App. 26 2004). “A party can demonstrate the latter element by ‘showing that the process has been 27 used primarily to accomplish a purpose for which the process was not designed.’” Id. 28 (quoting Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App. 1982)). An incidental motive of 1 spite or an ulterior purpose of benefit to the defendant is not enough. Crackel, 208 Ariz. 2 at 889. Instead, a plaintiff must show that the defendant “took an action that could not 3 logically be explained without reference to the defendant’s improper motives.” Id. 4 Arizona interprets “process” as “the entire range of procedures incident to the litigation 5 process.” Id. 6 Here, the Court will dismiss Count Five because Plaintiffs cannot possibly obtain 7 relief. Sparling, 864 F.2d at 638. After Plaintiffs prevailed in their eviction hearing, Ms. 8 Magaard sought, but did not obtain, an injunction against harassment. Proof of abuse of 9 process requires some act beyond the initiation of the lawsuit. Joseph v. Markovitz, 551 10 P.2d 571, 574 (App. 1976). At best, Plaintiffs have alleged that Ms. Magaard carried out 11 the injunction process to its authorized conclusion (even though she may have done so with 12 bad intentions). Cf. id. (“There is no liability where the defendant has done nothing more 13 than carry out the process to its authorized conclusion, even though with bad intentions.”) 14 (citation omitted). In the absence of a claim of an improper act, the mere initiation of the 15 injunction against harassment proceedings is not sufficient to maintain an action for abuse 16 of process against Ms. Magaard. It is therefore ordered dismissing Count Five. 17 F. Count Six (Abuse of Process) 18 Count Six alleges that Defendants PHD, Magaard, Fernandez and Bosshart engaged 19 in abuse of process when they initiated criminal prosecution against Plaintiff Czyzewski in 20 order to remove them from the Tenant Council and Filmore Gardens. (Id. ¶ 254.) Plaintiffs 21 further allege that these Defendants instituted the civil eviction proceedings against them 22 for the improper purpose of ousting them from Tenant Council, and to effectively shut 23 down Tenant Council altogether. (Id. ¶ 255.) Plaintiffs additionally assert that Defendant 24 Fernandez and Bosshart obtained victims’ rights documentation in the criminal case against 25 Mr. Czyzewski for the improper purposes of using the documents to evict him and 26 obtaining an injunction that prevented Mr. Czyzewski from conversing with management. 27 (Id. ¶ 257.) Defendants respond that each allegation in this count fails as a matter of law 28 because none of the Defendants’ actions involved the use of a judicial process. (Doc. 66 1 at 12.) The Court agrees with Defendants. 2 First, although Ms. Magaard did not move to dismiss this count, the Court finds that 3 Ms. Magaard’s decision to report the altercation between her and Mr. Czyzewski to the 4 police did not constitute an act done under the authority of the court. Plaintiffs cannot 5 possibly win relief on their claim that Ms. Magaard engaged in abuse of a judicially 6 sanctioned process by calling the police (and subsequently telling them that she did not 7 desire prosecution). To the extent the SAC additionally alleges that Ms. Magaard engaged 8 in abuse of process by participating in PHD’s internal eviction proceedings, the Court finds 9 that such participation did not constitute an act done under the authority of the court. 10 The Court similarly agrees that the role of Ms. Fernandez and Ms. Bosshart in 11 reporting Mr. Czyzewski’s alleged criminal conduct to police did not constitute an act done 12 under the authority of the court. (Doc. 66 at 12.) Neither did the internal PHD eviction 13 process. (Id.) 14 Regarding Plaintiffs’ claim that Defendants Fernandez and Bosshart listed Ms. 15 Fernandez as a victim in the criminal case for the improper purpose of obtaining paperwork 16 to use in the eviction hearing, the Court finds that Plaintiffs have failed to state a claim for 17 relief. Plaintiffs have not shown that the criminal case documents, which are presumably 18 in the public record, would have been inaccessible to Defendants outside of the criminal 19 court process. Accordingly, the facts do not plausibly demonstrate that Defendants utilized 20 the criminal action for the ulterior purpose of obtaining case documents for the eviction 21 hearing. 22 Finally, regarding Plaintiffs’ claim that Defendants Fernandez and Bosshart claimed 23 to be “victims” in the criminal proceedings for the improper purpose of obtaining an 24 injunction against Mr. Czyzewski, the Court finds that Plaintiffs have failed to state a 25 plausible claim for relief. When Ms. Fernandez and Ms. Bosshart elected to proceed as 26 “victims,” they did so in the context of reporting an alleged crime to police officers, which, 27 did not constitute an act done under the authority of the court. While the criminal court 28 may have subsequently entered an injunction against Mr. Czyzewski as part of the criminal 1 case, the decision to treat Ms. Fernandez and Ms. Bosshart as victims at that juncture of 2 the criminal proceedings was made by the prosecutor, not Defendants. Defendants Motion 3 to Dismiss is therefore granted. 4 G. Count Seven (Preliminary and Permanent Injunction) 5 In Count Seven Plaintiffs ask the Court to temporarily and permanently enjoin all 6 Defendants except Ms. Magaard from retaliating against Plaintiffs or any member of the 7 Fillmore Gardens community for the assertion of their rights under the First Amendment 8 and the Fair Housing Act. (Id. ¶ 260.) Plaintiffs request that all persons associated with 9 the management, rental or administration of PHD properties be ordered to attend a training 10 session about the First, Fourth and Fourteenth Amendments. (Id. ¶ 63.) They also ask that 11 Defendants be ordered to have no participation in the audits of Tenant Council, and that 12 they be required to establish a complaint policy for residents that enables them to raise 13 concerns without fear of retaliation. (Id. ¶ 267.) 14 Defendants argue that the Court has previously denied Plaintiffs’ Motion for 15 Preliminary and Permanent Injunction and that Plaintiffs have “disobeyed previous Court 16 Orders requiring that Plaintiffs file a Motion, not merely include the request in the 17 Complaint.” (Doc. 66 at 19.) The Court agrees with Plaintiffs, however, that the Court’s 18 prior order denying their request for a preliminary injunction, (see Doc. 37), does not 19 foreclose the possibility of a permanent injunction after trial. (Doc. 76 at 19.) Accordingly, 20 the Motions to Dismiss Count Seven is denied. 21 H. Notice of Claim 22 Finally, Defendants move to dismiss all “allegations” relating to incidents that 23 occurred before June 23, 2018, and all incidents occurring after December 20, 2018, for 24 Plaintiffs’ alleged failure to comply with Arizona’s notice of claim statute, A.R.S. § 12- 25 821.01. (Doc. 66 at 5-6); (Doc. 80 at 2.) A.R.S. § 12-821.01(A) requires persons who 26 have Arizona state law claims against a public entity or a public employee to file the claims 27 within one hundred eighty days after the cause of action accrues. A.R.S. § 12-821.01(A); 28 see also Mothershed v. Thomson, No. CV-04-2266-PHX-JAT, 2006 WL 381679, at *7 (D. 1 Ariz. Feb. 16, 2006) (federal courts entertaining state-law claims against state entities are 2 obligated to apply the state law notice-of-claim provision). Any notice of claim that is not 3 filed within one hundred eighty days after the cause of action accrues is barred. A.R.S. § 4 12-821.01(A). A cause of action accrues under this section when “the damaged party 5 realizes he or she has been damaged and knows or reasonably should know the cause, 6 source, act, event, instrumentality or condition that caused or contributed to the damage.” 7 A.R.S. § 12-821.01(B). 8 Plaintiffs respond that Rule 12 only provides for the dismissal of claims, not 9 allegations, and that Defendants failed to identify the specific claims they believe were 10 filed in violation of Arizona’s notice of claim statute. (Doc. 76 at 15.) Plaintiffs 11 additionally argue that the notice of claim statute does not apply to their federal claims or 12 their requests for equitable relief under state law. The Court agrees with Plaintiffs. 13 Plaintiffs sent their notice of claim to Defendants on December 20, 2018 and 14 initiated this action on May 16, 2019.7 (See Doc. 66-3 at 3); (Doc. 1 at 2.) Therefore, the 15 180-day marker for the accrual of state claims, counting backward from December 20, 16 2018, was June 23, 2018. (Doc. 66 at 6.) In their Motions to Dismiss, Defendants failed 17 to identify which state law claims purportedly accrued prior to June 23, 2018. Whether 18 incidents occurred prior to June 23, 2018 is a separate inquiry from whether Plaintiffs’ 19 claims accrued before that date. See A.R.S. § 12-821.01(B) (defining accrual). 20 Defendants’ Motion to Dismiss “allegations” that occurred before June 23, 2018, is denied. 21 The Court further finds that the notice of claim requirement does not apply to the claims 22 brought by Plaintiffs under federal law. Felder v. Casey, 487 U.S. 131, 153 (1988) (state’s 23 notice of claim law cannot alter the outcome of § 1983 claims depending solely on whether 24 they are brought in state or federal court within the same state); see also Howland v. State, 25 7 The Court will consider the Notice of Claim because it was attached to the original 26 complaint and is a matter of public record. See Hicks v. PGA Tour, Inc., 897 F.3d 1109, 27 1117 (9th Cir. 2018) (“The ‘pleadings’ include more than just the complaint. We can consider ‘exhibits attached to the Complaint or matters properly subject to judicial 28 notice.’”). 1 169 Ariz. 293, 295-298 (App. 1991) (applying A.R.S. § 12-821.01(A) only to state law 2 claims). Accordingly, the Motion to Dismiss on this basis is denied. 3 V. CONCLUSION 4 Accordingly, 5 IT IS ORDERED dismissing Counts One, Five, and Six against Defendant Donna 6 Magaard. Donna Magaard is dismissed from this action as a Defendant; her counterclaim 7 remains. 8 IT IS FURTHER ORDERED granting (part of Doc. 80) Defendant McAbee, 9 Defendant Martin, and their spouses’ Motion to Dismiss Plaintiffs’ § 1983 Fourth 10 Amendment claim (part of Count One). Count One is dismissed against the Officer 11 Defendants and their spouses in its entirety. 12 IT IS FURTHER ORDERED denying (part of Docs. 66, 80) Defendants’ Motion 13 to Dismiss Plaintiffs’ § 1983 First Amendment Association claim (part of Count One). This 14 portion of Count One shall proceed against Defendants City of Phoenix, PHD, Stotler, 15 Montgomery, Emmerson, Grittman, Fernandez, Hogan, Navarrette, and Bosshart. 16 IT IS FURTHER ORDERED granting (part of Docs. 66, 80) Defendants’ Motion 17 to Dismiss Plaintiff’s § 1983 Retaliatory Prosecution claim against all Defendants (part of 18 Count One). 19 IT IS FURTHER ORDERED granting (part of Docs. 66, 80) Defendants’ Motion 20 to Dismiss Plaintiff’s § 1983 Retaliatory Arrest claim against all Defendants except the 21 City of Phoenix (part of Count One). 22 IT IS FURTHER ORDERED denying (part of Docs. 66, 80) Defendant City of 23 Phoenix’s Motion to Dismiss Plaintiff’s § 1983 Retaliatory Arrest claim against the City 24 of Phoenix (part of Count One). The Retaliatory Arrest claim shall proceed against the City 25 of Phoenix only. 26 IT IS FURTHER ORDERED granting (part of Docs. 66, 80) Defendants’ Motion 27 to Dismiss Plaintiff’s § 1983 Procedural Due Process claim, related to the eviction 28 proceedings, against all Defendants (part of Count One). 1 IT IS FURTHER ORDERED denying (part of Docs. 66, 80) Defendants’ Motion 2 to Dismiss Plaintiff’s § 1983 Procedural Due Process claim, related to the termination of 3 Mr. Czyzewski’s employment (part of Count One). 4 IT IS FURTHER ORDERED granting (part of Docs. 66, 80) Defendants’ Motion 5 to Dismiss Plaintiff’s § 1983 Equal Protection claim against all Defendants (part of Count 6 One). 7 IT IS FURTHER ORDERED denying (part of Doc. 80) Defendant Stotler’s 8 Motion to Dismiss all remaining individual liability claims asserted against her in Count 9 One. 10 IT IS FURTHER ORDERED granting (part of Docs. 66, 80) Defendants’ Motion 11 to Dismiss Count Two against Defendants PHD, Stotler, Montgomery, Emmerson, 12 Grittman, Fernandez, and Hogan (part of Count Two). 13 IT IS FURTHER ORDERED denying (part of Docs. 66, 80) Defendant City of 14 Phoenix’s Motion to Dismiss Count Two. The City of Phoenix is the sole remaining 15 Defendant in Count Two. 16 IT IS FURTHER ORDERED denying (part of Docs. 66, 80) Defendants’ Motion 17 to Dismiss Count Three. This claim shall proceed against Defendants PHD, Bosshart, 18 Fernandez, and Navarrette. 19 IT IS FURTHER ORDERED granting (part of Docs. 66, 80) Defendants’ Motion 20 to Dismiss Count Four. Count Four is dismissed in its entirety. 21 IT IS FURTHER ORDERED granting (part of Docs. 66, 80) Defendants’ Motion 22 to Dismiss Count Six. Count Six is dismissed in its entirety. 23 IT IS FURTHER ORDERED denying (part of Docs. 66, 80) Defendants’ Motion 24 to Dismiss Count Seven against all Defendants except Defendants McAbee and Martin. 25 This claim shall proceed against Defendants City of Phoenix, PHD, Stotler, Montgomery, 26 Emmerson, Grittman, Fernandez, Hogan, Navarrette, and Bosshart. 27 IT IS FINALLY ORDERED granting (part of Doc. 80) Defendants McAbee, 28 Martin, and their spouses’ Motion to Dismiss Count Seven against them (part of Count Seven). Defendants McAbee, Martin, and their spouses are therefore dismissed from this || action entirely. 3 Dated this 23rd day of June, 2020. 4 ° Wichal T. Hburde 6 Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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