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Konarski v. City of Tucson

United States District Court, D. Arizona

June 4, 2018

Frank Konarski, husband; et al., Plaintiffs,
v.
City of Tucson, a body politic; et al., Defendants.

          ORDER

          Leslie A. Bowman United Suites Magistrate Judge.

         Pending before the court is the defendants' motion for partial summary judgment filed on September 14, 2017. (Doc. 217) The plaintiffs filed a response and the defendants filed a reply. (Doc. 226); (Doc. 251)

         The plaintiffs in this case provide housing to low income tenants. (Doc. 1-6) The defendant City of Tucson (the City) is the local housing authority that administers the federal Section 8 housing program, which gives rental assistance to low income families. Id. The individual defendants, Albert Elias, Peggy Morales, and Julianne Hughes, worked for the City when the events that triggered this action occurred. Id.

         In May of 2010, the City vetted the plaintiffs' housing units and agreed to enter into housing assistance payment (HAP) contracts with the plaintiffs for the benefit of three prospective tenants. (Doc. 1-6) In June of 2010, however, the City notified the plaintiffs that it was rescinding the HAP agreements. Id. Subsequently, the plaintiffs brought this action for breach of contract, bad faith, intentional interference with contract, intentional infliction of emotional distress, conspiracy, and violation of civil rights. Id.

         On September 14, 2017, the defendants filed the pending motion for partial summary judgment. (Doc. 217) They argue they are entitled to summary judgment on the “class of one” equal protection claim and the City is entitled to summary judgment on the Monell claim. Id.

         Magistrate Judge Bowman presides over this case having received written consent from all parties. 28 U.S.C. §636.

         Summary judgment is granted for the City itself on the Monell claim. Summary judgment is otherwise denied.

         Factual[1] and Procedural Background

         The plaintiffs are landlords, who rent housing to low income tenants. (Doc. 218, p. 2, ¶ 2) In May of 2010, prospective tenants Bonita Baltazar and Guadalupe Caballero expressed a desire to rent from the plaintiffs. Id., ¶ 3 The plaintiffs submitted to the City the paperwork necessary to apply for federal Section 8 rental assistance. Id. The City performed the necessary housing inspections, and agreed to enter into housing assistance payment (HAP) contracts with the plaintiffs. (Doc. 1-6, p. 5); (Doc. 218, p. 5, ¶ 14)

         On June 2, 2010, however, the plaintiffs received a letter from Peggy Morales, the City's Section 8 administrator. (Doc. 218, p. 2, ¶ 4; p. 4 ¶ 10; p. 5, ¶ 16) That letter informed the plaintiffs that the HAP contracts “were improvidently signed and will not be processed. The third property . . . inspected May 21, 2010 will be voided.” (Doc. 218, p. 2, ¶ 4; p. 4 ¶ 10; p. 5, ¶ 16)

         There is a long history of litigation between the parties. More than ten years earlier, the City sent the plaintiff Frank Konarski a letter stating that “due to the numerous complaints expressed by the tenants and the continuing problems imposed on our staff, ” the City would no longer initiate new contracts with him. (Doc. 218, pp. 2-3, ¶ 6) In November of 1994, the Arizona Attorney General's office found that Konarski had “engaged in unwelcome and unsolicited verbal conduct of an ethnic nature which was sufficiently severe and pervasive as to create a hostile, intimidating and offensive living environment” for Hispanic Section 8 tenants. (Doc. 218, p. 3, ¶ 7) In May of 2001, Adolph Valfre, who was Section 8 administrator at the time, informed Konarski's attorney that the plaintiffs were no longer eligible to participate in the Section 8 program due to “numerous complaints of discrimination from Konarski's tenants, Konarski's citation for assaulting a tenant, four failed Section 8 inspections in the previous four months, Plaintiffs' continued failure to bring their leases into compliance with the Arizona Residential Landlord Tenant Act, and Konarski's history of abusive, argumentative, accusatory, and abrasive behavior toward City HAP employees.” (Doc. 218, pp. 3-4, ¶ 9)

         The individual defendant, Peggy Morales, succeeded Valfre as the City's Section 8 administrator. (Doc. 218, p. 4, ¶ 10) Morales was aware of Konarski's problematic history and supported Valfre's 2001 decision to disqualify the plaintiffs from participation in the Section 8 program. (Doc. 218, pp. 4-5, ¶ 11, 12, 13)

         In June of 2010, Morales discovered that, in the previous month, her office had approved three HAP contracts with the plaintiffs. (Doc. 218, p. 5, ¶ 14) She sent a letter to the plaintiffs informing them that the contracts “were improvidently signed and will not be processed.” (Doc. 218, p. 5, ¶ 16) Morales informed the prospective tenants that the City would not subsidize their rent if they chose to stay at the plaintiffs' property but they could be eligible for rental assistance if they chose to rent from a different landlord. (Doc. 218, p. 5, ¶ 17)

         Morales maintains that the contracts were voided because of the City's earlier decision to disqualify the plaintiffs from participation in the Section 8 program. (Doc. 218, p. 5, ¶ 14) The plaintiffs assert, to the contrary, that the contracts were voided without a rational basis. They base their argument on the testimony of Bonita Baltazar, one of the prospective tenants.

         On June 4, 2010[2], Morales wrote Baltazar explaining that the City was canceling the HAP agreement and inviting her to come to her office and obtain a new voucher packet. (Doc. 218, pp. 5-6, ¶ 18) Baltazar subsequently told Konarski that she spoke to Morales, who said she “had a personal vendetta against him.” (Doc. 218, p. 6, ¶ 19) Morales denies telling Baltazar that she had a “personal vendetta” against Konarski. (Doc. 218, p. 6, ¶ 20)

         On June 7, 2010, Baltazar signed an affidavit prepared by Konarski. (Doc. 218, p. 6, ¶ 21) The affidavit does not mention the “personal vendetta” accusation. (Doc. 218, p. 7, ¶ 24)

         On July 10, 2010, Baltazar spoke at a Tucson City Council meeting. (Doc. 218, p. 7, ¶ 25) She stated that Morales told her that “there was a personal vendetta between her and . . . Frank [Konarski].” (Doc. 218, p. 7, ¶ 25) Konarski and his son had driven Baltazar to the Council meeting and had given her a piece of paper that contained a statement prepared by Konarski. (Doc. 218, p. 8, ¶¶ 27, 28) In the videotape of the Council meeting, Baltazar can be seen referring to a piece of paper while she spoke. (Doc. 218, p. 7, ¶ 26) But later, at her deposition, Baltazar testified that she read the paper for the first time when she went home after the meeting. (Doc. 218, p. 8, ¶ 29) After the deposition, she tried to find the paper, but was unable to do so. (Doc. 218, pp. 8-9, ¶ 32) Konarski maintains that the only paper he gave to Baltazar on the day of the hearing was a copy of her affidavit. (Plaintiffs' response, Exhibit B, ¶ 30)

         The plaintiffs subsequently initiated this action by filing a complaint in Pima County Superior Court. They filed an amended complaint on August 30, 2011, claiming breach of contract, bad faith, intentional interference with contract, intentional infliction of emotional distress, conspiracy, and violation of civil rights pursuant to 42 U.S.C. § 1983. (Doc. 1-6) On September 26, 2011, the defendants ...


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