United States District Court, D. Arizona
A. Bowman United Suites Magistrate Judge.
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)
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.
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
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.
Judge Bowman presides over this case having received written
consent from all parties. 28 U.S.C. §636.
judgment is granted for the City itself on the
Monell claim. Summary judgment is otherwise denied.
Factual and Procedural
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)
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)
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)
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)
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)
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.
4, 2010, 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)
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)
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)
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 ...