United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion for Summary Judgment
(Doc. 50). The motion is fully briefed, and oral argument has
not been requested. As follows, the motion will be granted.
August 5, 2013, Plaintiff Schaun Owens was hired as a
full-time Cosmetology Associate Instructor for the Maricopa
Skill Center, a division of a community college operated by
the Maricopa County Community College District
(“District”). Owens alleges that shortly after
school began that fall, her supervisor, Lisa Hemming,
directed her to tell students that they could not speak
Spanish in the student lounge, to which Owens responded in
opposition. On February 12, 2014, Owens was terminated.
September 4, 2015, Owens, appearing pro se, filed a
complaint initiating the instant action against Hemming and
the District, claiming racial discrimination and retaliation
in violation of 42 U.S.C. § 1981 (Count One), racial
discrimination and retaliation in violation of the equal
protection clause of the Fourteenth Amendment under 42 U.S.C.
§ 1983 (Count Two), and retaliation in violation of her
First Amendment right to free speech under 42 U.S.C. §
1983 (Count Three). (Doc. 1.) Defendants have moved for
summary judgment on all three claims, arguing that there is
no genuine dispute of material fact of discrimination or
retaliation by Hemming, or municipal liability for her
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Summary judgment may also be entered
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 323. If the movant carries its initial burden of
production, in response, the non-movant “must do more
than simply show that there is some metaphysical doubt as to
the material facts, ” and instead must “come
forward with ‘specific facts showing that there is a
genuine issue for trial.'” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (quoting Fed.R.Civ.P. 56(e)). The court views the
evidence and draws reasonable inferences “in the light
most favorable to the party opposing the motion.”
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). However, only disputes over facts that could affect
the outcome of the suit will preclude the entry of summary
judgment, and the disputed evidence must be “such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). See also Scott v. Harris, 550
U.S. 372, 380 (2007).
Defendants first argue that they are entitled to summary
judgment on Owens's racial discrimination and equal
protection claims. (Doc. 50.) In her response, Owens does not
address these claims or replies to Defendants' arguments.
Owens having failed to establish, must less identify, any
triable dispute of material fact as to these claims,
“Rule 56(c) mandates the entry of summary
judgment” on Counts One and Two of the complaint.
Celotex, 477 U.S. at 322. See also Jenkins v.
Cty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir.
2005) (claims not raised in opposition to summary judgment
motion are abandoned).
Defendants argue that Owens has failed to show that there is
a genuine issue of material fact as to her claim of
retaliation by Hemming and municipal liability under
Monell. In their memorandum, Defendants discuss each
element of Owens's claim and address the lack of evidence
in the record which demonstrates that there is no triable
issue of unconstitutional retaliation. They have filed a
detailed statement of facts and attached supporting evidence.
(Doc. 51.) Owens responds by arguing that the following
creates a genuine issue for trial: she engaged in protected
speech by “expressing her opinions on the illegality of
Hemming's directive to ban the Spanish language in the
student lounge, ” (Doc. 53 at 2); the decision to
terminate her was motivated by her speech because it was only
“four or five months after Ms. Owens brought to light
Hemming[']s unfair treatment of Spanish speaking
students, ” (Doc. 53 at 5); and the District is liable
because it “made a deliberate choice to approve of and
ratify Hemming's numerous acts of retaliatory harassment
by making the decision to remove Ms. Owens [from] her
position, and  allow[ed] Hemming's harassment of Ms.
Owens to continue for months while she was still an
employee” (Doc. 53 at 6).
response fails to carry her burden to identify, with
sufficient particularity, facts that create a genuine dispute
necessitating trial. See Matsushita Elec. Indus.
Co., 475 U.S. at 587. Owens's cursory reference to
vague facts in her brief, without any specific citation to or
discussion of them, is insufficient to demonstrate that there
is a triable dispute of fact. See Celotex, 477 U.S.
at 324 (“Rule 56(e)  requires the nonmoving party to
go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a
genuine issue for trial.”) (internal quotation marks
omitted); F.T.C. v. Publishing Clearing House, Inc.,
104 F.3d 1168, 1171 (9th Cir. 1997) (conclusory, self-serving
statements in briefs lacking detailed facts and any
supporting evidence are insufficient to create a genuine
issue of material fact). Owens does not address or cite to
any specific fact regarding the alleged
“directive to ban the Spanish language in the student
lounge, ” the “opinions” or statements she
made in response to Hemming's conduct, when and where the
protected speech occurred, the alleged harassing conduct, or
the circumstances leading up to or surrounding her
termination. Absent such facts, Owens fails to make a
sufficient showing regarding the essential elements of her
case which she would have to prove at trial. See Eng v.
Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
Owens has not pointed to or submitted any evidence
to demonstrate that there is a triable dispute. Owens has not
filed a responsive separate statement of facts, as was
directed in the Court's Order and is required by the
local rules. (Doc. 52.) Owens has not attached any
documentary evidence or submitted a written declaration
stating the factual basis that supports her claims. The
unsworn allegations in the complaint are insufficient to
create an issue of fact on summary judgment. See Lujan v.
National Wildlife Federation, 497 U.S. 871, 888-89
(1990) (“the purpose of Rule 56 is to enable a party
who believes there is no genuine dispute as to a specific
fact essential to the other side's case to demand at
least one sworn averment of that fact before the lengthy
process of litigation continues.”). And, even if Owens
could defeat summary judgment by merely citing to the
allegations in her complaint, it would not yield a different
outcome in this case because here, she did not do so.
was provided with an ample opportunity to develop the record
through discovery, and received sufficient notice of the
requirements needed to defeat Defendants' motion. See
Albino v. Baca, 747 F.3d 1162, 1177 (9th Cir. 2014).
Absent any evidence on summary judgment from Owens setting
forth, with sufficient specificity, her version of the events
that support her claims, the Court is unable to conclude that
there is a triable dispute of fact. The Court is not required
to construct arguments and identify the material facts in
search of a genuine dispute for trial when Owens has chosen
not to do so herself. See Bias v. Moynihan, 508 F.3d
1212, 1219 (9th Cir. 2007) (“A district court does not
have a duty to search for evidence that would create a
factual dispute” and “lacks the power to act as a
party's lawyer, even for pro se
litigants”); Carmen v. S.F Unified Sch. Dist,237 F.3d 1026, 1031 (9th Cir. 2001) (“The district
court need not examine the entire file for evidence
establishing a genuine issue of fact, where the evidence is
not set forth in the opposing papers with adequate references
so that it could conveniently be found”); Keenan v.
Allan,91 F.3d 1275, 1279 (9th Cir. 1996) (the district
court has no responsibility on summary judgment to
“scour the record in search of a genuine issue of
triable fact”); Forsberg v. Pac. N.W. Bell Tel.