1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Wanda Elaine Smith-Jeter, ) No. CV-21-00846-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) City of Scottsdale, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is pro se Plaintiff Wanda Elaine Smith-Jeter’s (“Plaintiff”) Motion 16 for Temporary Restraining Order and Motion for Legal Assistance and Counsel (Doc. 59). 17 On June 3, 2022, the Court denied Plaintiff’s request for legal assistance but withheld 18 ruling on Plaintiff’s request for a temporary restraining order (“TRO”) to allow briefing 19 and to hold a hearing on the issue. (Doc. 60). The parties have fully briefed the Motion, 20 (Docs. 59, 63, 65), and a hearing was held before this Court on June 10, 2022 (Doc. 67). 21 Having read the parties’ briefs and having heard their arguments, the Court now issues this 22 Order denying Plaintiff’s Motion. 23 I. BACKGROUND 24 On May 11, 2021, Plaintiff, filed her initial Complaint (Doc. 1) in this matter; she 25 has since filed several Amended Complaints (Docs. 6, 37, 55). Plaintiff originally named 26 as Defendants the City of Scottsdale, Scottsdale Housing Agency, Scottsdale City Attorney 27 Sherry Scott, Villa Montana Apartments, and Al Angelo Company. (See Doc. 1). However, 28 1 only two Defendants remain: City of Scottsdale and Al Angelo Company.1 Plaintiff asserts 2 claims under several federal statutes, including 42 U.S.C. §§ 1982–83 and the Fair Housing 3 Act, 42 U.S.C. § 3604, et seq. (Doc. 55-1 at 3, 6). 4 Plaintiff’s claims arise out of her tenancy at the Villa Montana Apartments (the 5 “Apartments”) in Scottsdale, Arizona, which are managed by Defendant Al Angelo 6 Company. (Id. at 6). Plaintiff and her husband, Jesse James Jeter—who are ages 70 and 67, 7 respectively—are “Black/African-Americans” who both live with disabilities and mobility 8 issues. (Id.). Plaintiff and Mr. Jeter relocated from Vancouver, Washington, (Id.), and 9 entered into a one-year lease at the Apartments from May 1, 2021 to April 30, 2022. 10 (See Lease, Doc. 63-1). Plaintiff and Mr. Jeter participated in Section 8’s HUD Housing 11 Choice Voucher program, a federally funded program for low-income tenants. (Doc. 55-1 12 at 6). Plaintiff alleges that she and her husband experienced several instances of “race 13 discrimination and malicious harassment from the very beginning of [their] tenancy.” (Id.). 14 These discrimination claims are the basis of her Complaint. (Id.). 15 The present Motion, however, does not directly relate to Plaintiff’s discrimination 16 claims. Instead, the Motion concerns Plaintiff’s allegation that, on May 27, 2022, she and 17 her husband were “forcibly removed” from their apartment. (Doc. 59 at 1). She alleges that 18 they were not served with an eviction notice, in violation of state law. (Id. at 3). As a result, 19 Plaintiff asserts that they were not afforded an opportunity “to appear in court and defend 20 [themselves]” or to apply for “a reasonable accommodation due to disability.” (Id. at 2). 21 Plaintiff requests that this Court issue a TRO in response to their allegedly illegal eviction. 22 While it was initially unclear what Plaintiff wanted the TRO to do, Plaintiff indicated at 23 the June 10, 2022 Hearing that she is requesting an order from this Court overturning the 24 eviction and ordering that she be permitted back into the apartment unit. 25 1 Scottsdale Housing Agency and Villa Montana Apartments were terminated as 26 Defendants after Plaintiff failed to name them in her Amended Complaint (Doc. 6). 27 Scottsdale City Attorney Sherry Scott was dismissed from the case after the Court granted Scott’s Motion to Dismiss (Doc. 32). 28 1 II. LEGAL STANDARD 2 A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 3 Procedure must show that: (1) it is likely to succeed on the merits; (2) it is likely to suffer 4 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in its 5 favor; and (4) an injunction is in the public interest.2 Winter v. Nat. Res. Def. Council, Inc., 6 555 U.S. 7, 20 (2008); Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 7 2014); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012); Stuhlbarg Int'l Sales 8 Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “The basic 9 function of a preliminary injunction is to preserve the status quo pending a determination 10 of the action on the merits.” Chalk v. U.S. Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701, 704 11 (9th Cir. 1988). 12 A preliminary injunction “is an extraordinary and drastic remedy, one that should 13 not be granted unless the movant, by a clear showing, carries the burden of persuasion.” 14 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal quotation omitted) (citation 15 omitted). Where the movant seeks a mandatory injunction, rather than prohibitory, 16 injunctive relief is “subject to a heightened scrutiny and should not be issued unless the 17 facts and law clearly favor the moving party.” Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 18 1403 (9th Cir. 1993).3 19 2 The Ninth Circuit observes a “sliding scale” approach, in that these elements “are 20 balanced, so that a stronger showing of one element may offset a weaker showing of 21 another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Thus, by example, an injunction can issue where there are “‘serious questions going to the merits’ 22 and a balance of hardships that tips sharply towards the plaintiff… so long as the plaintiff 23 also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135. 24
25 3 “A mandatory injunction orders a responsible party to take action,” while “a prohibitory injunction prohibits a party from taking action and preserves the status quo 26 pending a determination of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos 27 Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quotations omitted). “The ‘status quo’ refers to the legally relevant relationship between the parties before the controversy 28 arose.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060–61 (9th Cir. 2014). 1 III. DISCUSSION 2 The Court denies Plaintiff’s request for a TRO because she has failed to sufficiently 3 address the Winter factors; most critically, Plaintiff has failed to show that she has a 4 likelihood of success on the merits of her discrimination and civil rights claims. Moreover, 5 the record does not indicate that Plaintiff’s eviction was “illegal,” improper, or otherwise 6 procedurally insufficient. Even if there were questions surrounding the eviction, it is 7 unclear from Plaintiff’s arguments whether this Court has the jurisdiction or authority to 8 overturn an eviction ordered by an Arizona state court, at least where Plaintiff has not 9 availed herself of the state-level appeals process.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Wanda Elaine Smith-Jeter, ) No. CV-21-00846-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) City of Scottsdale, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is pro se Plaintiff Wanda Elaine Smith-Jeter’s (“Plaintiff”) Motion 16 for Temporary Restraining Order and Motion for Legal Assistance and Counsel (Doc. 59). 17 On June 3, 2022, the Court denied Plaintiff’s request for legal assistance but withheld 18 ruling on Plaintiff’s request for a temporary restraining order (“TRO”) to allow briefing 19 and to hold a hearing on the issue. (Doc. 60). The parties have fully briefed the Motion, 20 (Docs. 59, 63, 65), and a hearing was held before this Court on June 10, 2022 (Doc. 67). 21 Having read the parties’ briefs and having heard their arguments, the Court now issues this 22 Order denying Plaintiff’s Motion. 23 I. BACKGROUND 24 On May 11, 2021, Plaintiff, filed her initial Complaint (Doc. 1) in this matter; she 25 has since filed several Amended Complaints (Docs. 6, 37, 55). Plaintiff originally named 26 as Defendants the City of Scottsdale, Scottsdale Housing Agency, Scottsdale City Attorney 27 Sherry Scott, Villa Montana Apartments, and Al Angelo Company. (See Doc. 1). However, 28 1 only two Defendants remain: City of Scottsdale and Al Angelo Company.1 Plaintiff asserts 2 claims under several federal statutes, including 42 U.S.C. §§ 1982–83 and the Fair Housing 3 Act, 42 U.S.C. § 3604, et seq. (Doc. 55-1 at 3, 6). 4 Plaintiff’s claims arise out of her tenancy at the Villa Montana Apartments (the 5 “Apartments”) in Scottsdale, Arizona, which are managed by Defendant Al Angelo 6 Company. (Id. at 6). Plaintiff and her husband, Jesse James Jeter—who are ages 70 and 67, 7 respectively—are “Black/African-Americans” who both live with disabilities and mobility 8 issues. (Id.). Plaintiff and Mr. Jeter relocated from Vancouver, Washington, (Id.), and 9 entered into a one-year lease at the Apartments from May 1, 2021 to April 30, 2022. 10 (See Lease, Doc. 63-1). Plaintiff and Mr. Jeter participated in Section 8’s HUD Housing 11 Choice Voucher program, a federally funded program for low-income tenants. (Doc. 55-1 12 at 6). Plaintiff alleges that she and her husband experienced several instances of “race 13 discrimination and malicious harassment from the very beginning of [their] tenancy.” (Id.). 14 These discrimination claims are the basis of her Complaint. (Id.). 15 The present Motion, however, does not directly relate to Plaintiff’s discrimination 16 claims. Instead, the Motion concerns Plaintiff’s allegation that, on May 27, 2022, she and 17 her husband were “forcibly removed” from their apartment. (Doc. 59 at 1). She alleges that 18 they were not served with an eviction notice, in violation of state law. (Id. at 3). As a result, 19 Plaintiff asserts that they were not afforded an opportunity “to appear in court and defend 20 [themselves]” or to apply for “a reasonable accommodation due to disability.” (Id. at 2). 21 Plaintiff requests that this Court issue a TRO in response to their allegedly illegal eviction. 22 While it was initially unclear what Plaintiff wanted the TRO to do, Plaintiff indicated at 23 the June 10, 2022 Hearing that she is requesting an order from this Court overturning the 24 eviction and ordering that she be permitted back into the apartment unit. 25 1 Scottsdale Housing Agency and Villa Montana Apartments were terminated as 26 Defendants after Plaintiff failed to name them in her Amended Complaint (Doc. 6). 27 Scottsdale City Attorney Sherry Scott was dismissed from the case after the Court granted Scott’s Motion to Dismiss (Doc. 32). 28 1 II. LEGAL STANDARD 2 A party seeking injunctive relief under Rule 65 of the Federal Rules of Civil 3 Procedure must show that: (1) it is likely to succeed on the merits; (2) it is likely to suffer 4 irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in its 5 favor; and (4) an injunction is in the public interest.2 Winter v. Nat. Res. Def. Council, Inc., 6 555 U.S. 7, 20 (2008); Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 7 2014); Pimentel v. Dreyfus, 670 F.3d 1096, 1105-06 (9th Cir. 2012); Stuhlbarg Int'l Sales 8 Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “The basic 9 function of a preliminary injunction is to preserve the status quo pending a determination 10 of the action on the merits.” Chalk v. U.S. Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701, 704 11 (9th Cir. 1988). 12 A preliminary injunction “is an extraordinary and drastic remedy, one that should 13 not be granted unless the movant, by a clear showing, carries the burden of persuasion.” 14 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal quotation omitted) (citation 15 omitted). Where the movant seeks a mandatory injunction, rather than prohibitory, 16 injunctive relief is “subject to a heightened scrutiny and should not be issued unless the 17 facts and law clearly favor the moving party.” Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 18 1403 (9th Cir. 1993).3 19 2 The Ninth Circuit observes a “sliding scale” approach, in that these elements “are 20 balanced, so that a stronger showing of one element may offset a weaker showing of 21 another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Thus, by example, an injunction can issue where there are “‘serious questions going to the merits’ 22 and a balance of hardships that tips sharply towards the plaintiff… so long as the plaintiff 23 also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135. 24
25 3 “A mandatory injunction orders a responsible party to take action,” while “a prohibitory injunction prohibits a party from taking action and preserves the status quo 26 pending a determination of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos 27 Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quotations omitted). “The ‘status quo’ refers to the legally relevant relationship between the parties before the controversy 28 arose.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060–61 (9th Cir. 2014). 1 III. DISCUSSION 2 The Court denies Plaintiff’s request for a TRO because she has failed to sufficiently 3 address the Winter factors; most critically, Plaintiff has failed to show that she has a 4 likelihood of success on the merits of her discrimination and civil rights claims. Moreover, 5 the record does not indicate that Plaintiff’s eviction was “illegal,” improper, or otherwise 6 procedurally insufficient. Even if there were questions surrounding the eviction, it is 7 unclear from Plaintiff’s arguments whether this Court has the jurisdiction or authority to 8 overturn an eviction ordered by an Arizona state court, at least where Plaintiff has not 9 availed herself of the state-level appeals process. 10 First, Plaintiff has not demonstrated a likelihood that she will succeed on the merits 11 of her claims; nor has she shown that there are “serious questions” going to the merits. “To 12 establish a substantial likelihood of success on the merits, [a plaintiff] must show ‘a fair 13 chance of success.’” In re Focus Media Inc., 387 F.3d 1077, 1086 (9th Cir. 2004) (citation 14 and internal quotations omitted). “A claim can be weaker on the merits if it raises ‘serious 15 questions’ and the amount of harm the injunction will prevent is very great, but the chances 16 of success on the merits cannot be weaker than ‘likely.’” Shebanow v. First Magnus Fin. 17 Corp., No. 3:10-cv-00765-RCJ-RAM, 2010 WL 5390132, at *3 (D. Nev. Dec. 22, 2010). 18 Here, Plaintiff’s only argument with respect to this factor is that she “believe[s] and can 19 show that [she is] likely to succeed on the merits of this case, as soon as the defendants 20 have ‘Answered’ the Plaintiff’s (3rd) Amended Complaints: the law and the facts clearly 21 favor the plaintiff.” (Doc. 59 at 2). Such a conclusory argument fails to substantively 22 explain why Plaintiff is likely to succeed on—or how there are at least “serious questions” 23 going to the merits of—her discrimination and civil rights claims. Plaintiff’s failure to 24 make any showing on this factor is detrimental to her request for a TRO. 25 Even if Plaintiff sufficiently addressed the Winter factors, it is not clear that her 26 eviction was “illegal” or otherwise improper such that a TRO should issue to overturn it. 27 Plaintiff’s lease was set to expire on April 30, 2022; after that date, the lease was to convert 28 to a monthly tenancy. (Doc. 63-1 at 2, 4). The lease specifically states that “Management 1 has the right to non renew this lease and in such cases, Resident agrees to vacate on the 2 expiration date of the lease.” (Id. at 4). Defendant Al Angelo Company chose to exercise 3 this right because it was “[n]o longer participating in the Section 8 Voucher Program” 4 and—on February 22, 2022—Defendant provided Plaintiff with 60-days’ notice of its 5 decision to non-renew the lease. (See Sixty-Day Notice to Terminate Tenancy, Doc. 63-2). 6 While Plaintiff maintains that she never received the notice, the notice was fastened to the 7 door of her unit and a copy of the notice was sent to Plaintiff by certified mail. (Id. at 2). 8 Further evidencing that Plaintiff received the notice is the fact that she herself filed a copy 9 of the notice in this matter. (See Doc. 31, filed February 28, 2022). 10 Plaintiff failed to vacate the unit on April 30, 2022 and at that point she became a 11 holdover tenant. Defendant filed a special detainer action in the McDowell Mountain 12 Justice Court and an eviction hearing was set for May 17, 2022. The summons and 13 complaint for this action were served on Plaintiff by a certified process server on May 11, 14 2022. (Docs. 63-3 & 63-4). Again, service was completed by posting the summons and 15 complaint to Plaintiff’s door and by mailing separate copies of each to Plaintiff by certified 16 mail. (Id.). Again, such form of service is sufficient under Arizona law.4 Plaintiff and her 17 husband failed to appear at the May 17 eviction hearing. (Doc. 63-5). Judgment was entered 18 against them by default, and they were evicted from the Apartments. In sum, this Court 19 finds that the evidence indicates that Plaintiff’s eviction was procedurally correct and there 20 is no evidence to suggest—despite what Plaintiff claims—that the eviction was illegal or 21 otherwise improper. As noted above, even if there were questions surrounding the eviction, 22 it is unclear whether this Court has the jurisdiction or authority to overturn the eviction, 23 particularly considering that Plaintiff does not appear to have availed herself of the proper 24
25 4 Specifically, Arizona law provides that “[t]he tenant is deemed to have received the summons three days after the summons is mailed if personal service is attempted and 26 within one day of issuance of the summons a copy of the summons is conspicuously posted 27 on the main entrance of the tenant's residence and on the same day the summons is sent by certified mail, return receipt requested, to the tenant's last known address.” A.R.S. § 33- 28 1377(B) (emphasis added). 1 | avenue for overturning an eviction—the state-level appeals process. 2 IV. CONCLUSION 3 In sum, Plaintiff has not made a sufficient showing to warrant this Court granting the “extraordinary and drastic remedy” she requests—a TRO ordering that her eviction be overturned, and that she be permitted back into the unit. Even if she made a stronger 6 | showing as to the Winter factors, this Court would be reluctant to overturn the eviction 7 | because all evidence that has been presented indicates that the eviction was justified and 8 | properly carried out. Moreover, given that Plaintiff has apparently not availed herself of the state-level appeals process, this Court is not the proper forum—at least at this stage— for Plaintiff to overturn a state-issued eviction. Accordingly, 11 IT IS ORDERED that Plaintiff's Motion for Temporary Restraining Order and for 12 | Legal Assistance and Counsel (Doc. 59)—which has already been denied to the extent 13 | Plaintiff seeks legal assistance (See Doc. 60)—is now also denied to the extent Plaintiff 14| seeks the issuance of a Temporary Restraining Order. Thus, the Motion (Doc. 59) is denied 15 | inits entirety. 16 Dated this 14th day of June, 2022. 17
19 United States District Judge 20 21 22 23 24 25 26 27 28