Free Motion for Summary Judgment - District Court of Arizona - Arizona

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Terry Goddard Attorney General CARRIE J. BRENNAN, Bar No. 018250 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7679 Fax: (602) 542-7670 Attorneys For State Defendants IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONNIE R. ZAKRAJSEK, Case No: CIV 04-0449-PHX SMM Plaintiff, v. STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SUSAN ARMSTRONG, an individual; (Assigned to the Honorable Stephen M. SUSAN ARMSTRONG, an employee of the McNamee) County of MARICOPA, ARIZONA; RICHARD TEENSTRA, an individual; RICHARD TEENSTRA, an employee of the COUNTY OF MARICOPA, ARIZONA; COUNTY OF MARICOPA, ARIZONA, as the employer of Defendants SUSAN ARMSTRONG and RICHARD TEENSTRA; Hon. COLIN CAMPBELL, Presiding Judge of Maricopa County Superior Court, individually and in his capacity as Presiding Judge; and Does 1-25, Defendants.

Pursuant to Fed. R. Civ. P. 56, Defendants Susan Armstrong, Richard Teenstra, and the Hon. Colin Campbell ("State Defendants") move for summary judgment and the dismissal of Plaintiff Zakrajsek's Complaint. This Motion is supported by the following Memorandum of Points and Authorities. ///

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MEMORANDUM OF POINTS AND AUTHORITIES I. Background Plaintiff Connie Zakrajsek utilizes the Maricopa County Superior Court Law Library for "study, maintaining legal knowledge and for participating in litigation as a pro se litigant and to serve the Most High God in various capacities including but not limited to furthering the reform of the American and Arizona Legal Systems and the spread of the Gospel of Jesus Christ pursuant to the command given her in Matthew 28:19."1 SOF ¶ 1. Defendant Susan Armstrong is employed as the Reference and Information Services Coordinator in the Law Library. SOF ¶ 2. Defendant Richard Teenstra is employed as the Director of the Law Library. SOF ¶ 3. At the time of the events described in the Complaint, Defendant Judge Colin Campbell was the presiding judge of Maricopa County Superior Court. SOF ¶ 4. Zakrajsek's Complaint arises out of her arrest on February 17, 2004, for trespassing in the Law Library. SOF ¶ 5. The Maricopa County Superior Court maintains a no solicitation policy in all court buildings. SOF ¶ 6. The policy forbids "solicitations for donations, selling or peddling, to the distribution of sales or informational material of every nature, and to offers to provide legal advice or services" and further defines solicitation as: A. Any activity which might be considered or interpreted as the promotion, sale or transfer of products, services, or memberships, donations, or for the participation in a venture of any kind, including organizational or grievance activities other than those activities designed by employees to promote employee activities or employee welfare. B. The distribution and/or posting of handbills, leaflets, circulars, advertising or other printed material for purposes cited above. SOF ¶ 7. The policy further states that one may apply to obtain authorization for solicitation within court buildings and grounds through the presiding judge, and sets forth
This verse states: "Go ye therefore, and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost."
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the procedures for obtaining such authorization. SOF ¶ 8. If persons are engaged in unauthorized solicitation within court buildings or adjacent plazas, court supervisory personnel are to first advise the solicitor of the procedures to obtain authorization, and then to request that the solicitor "discontinue their activities or remove themselves from Court premises." SOF ¶ 9. If the solicitor continues soliciting, the staff is to notify court security. SOF ¶ 10. The governmental purposes behind the implementation of the no solicitation policy are as follows: (1) to promote safety and security within court buildings and adjacent plazas and parking areas; (2) to promote a judicial atmosphere and prevent a commercial atmosphere; (3) to preserve the independence of the judiciary and court system; and (4) to preserve the solemnity and tranquility of the court buildings. SOF ¶ 11. Beginning in November 2003, Armstrong warned Zakrajsek about violating the no solicitation policy. SOF ¶ 12. In December 2003, after receiving complaints from staff that Zakrajsek was continually offering legal advice to patrons, in the Online Room, Armstrong provided Zakrajsek with a copy of the no solicitation policy and requested that she discontinue violating the policy. SOF ¶ 13. Around Christmas 2003, Armstrong observed Zakrajsek doing legal work for a gentleman, and gave her a copy of the no solicitation policy, at which time Zakrajsek laughed and continued typing. SOF ¶ 14. Teenstra also told Zakrajsek at that time that she could not solicit patrons. SOF ¶ 14. Armstrong continued to receive reports that Zakrajsek was soliciting patrons in the library. SOF ¶ 15. On February 17, 2004, Armstrong observed Zakrajsek doing legal work for library patrons. SOF ¶ 15. On February 17, 2004, Armstrong contacted court security, and Maricopa County Sheriff's Office Sgt. Garland responded. SOF ¶ 16. Sgt. Garland advised Zakrajsek that

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she was being asked to leave due to her violation of the court's no solicitation policy. Zakrajsek refused to leave. Sgt. Garland placed her under arrest for trespassing. SOF ¶17. On July 7, 2004, Teenstra and Armstrong requested court security inform Zakrajsek that she could no longer use the Online Room in the Law Library. This step was taken because it was apparent that most of Zakrajsek's solicitation activities took place in that room, and because other patrons had refused to work in the Online Room when Zakrajsek was present. Zakrajsek remains, however, free to use the other library computers stationed outside the Online Room; these computers have identical functions and abilities as those in the Online Room. SOF ¶ 18. On March 4, 2004, Zakrajsek filed this Complaint alleging multiple violations of her federal civil rights arising from her arrest and requesting declaratory, injunctive, and monetary relief. Specifically, Zakrajsek's Complaint contains the following: Count I seeks a declaration that the no solicitation policy is unconstitutional; Count II seeks injunctive relief enjoining the court staff from enforcing the no solicitation policy and allowing her to use the Law Library; Counts III, IV, V, and VI seek monetary damages for the violation of her federal civil rights; and Count VII seeks damages for a state-law claim of defamation. SOF ¶ 20. On January 20, 2005, Zakrajsek was convicted of the crime of trespassing in West Phoenix Justice Court. SOF ¶ 21. II. Legal Standard Pursuant to Fed. R. Civ. P. 56(c), the entry of summary judgment is proper when, after adequate time for discovery, the non-moving party fails to make a showing sufficient to establish the existence of an essential element of its case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). This

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standard mirrors the standard of a directed verdict. Id. at 323 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). III. Plaintiff's § 1983 Claims for Damages Are Barred by Heck v. Humphrey The United States Supreme Court has ruled that a plaintiff does not have a cognizable cause of action for damages under 42 U.S.C. § 1983 arising out of a conviction if the conviction that is the subject of the § 1983 claim is still valid. The Supreme Court stated: In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Zakrajsek has not demonstrated that her conviction has been invalidated. Therefore, her § 1983 claims contained in Counts III, IV, and VI must be dismissed under the rule announced in Heck v. Humphrey. This rule applies equally to claims brought under § 1985, which prohibits conspiracy to interfere with civil rights. McQuillion v. Schwarzenegger, 369 F.3d 1091, 1098 n.4 (9th Cir 2004). Thus, Zakrajsek's Count V, which purports to state a claim for conspiracy to violate her federal civil rights, must also be dismissed under this rule. IV. The No Solicitation Policy Is Valid and Constitutional In Count I of her Complaint, Zakrajsek asks that this Court declare the no solicitation policy as unconstitutional and a violation of the First Amendment because it is not a valid time, place, and manner restriction, and that its terms are "vague and

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ambiguous." SOF ¶ 22.. In Count II, Zakrajsek requests that this Court enjoin the State Defendants from enforcing the no solicitation policy.2 SOF ¶ 22. In addressing Zakrajsek's time, place, and manner argument, the Court must determine whether the speech restrictions were content neutral, were narrowly tailored to serve an important governmental purpose, and left open alternative means of communication. Menotti v. City of Seattle, 409 F.3d 1113, 1128 (9th Cir. 2005). The "`principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.'" Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). The content neutrality of the policy can be determined on its face--"`if the statute describes speech by content then it is content based.'" Id. at 1129 (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring)). Here, the no solicitation policy is content neutral: it does not concern the particular viewpoint or message and, thus, is not a regulation of content, but rather, a regulation of the place and manner in which speech can occur. As noted above, the purposes of enacting the policy were to promote safety and security, to preserve a judicial atmosphere, and to preserve independence of the courts and the solemnity and tranquility of the Court buildings. These purposes have nothing to do with the content of Zakrajsek's viewpoint or message. The policy applies equally to persons of all viewpoints. In addition, State Defendants are hard-pressed to imagine how Zakrajsek could argue that the government does not have a significant interest in the above-noted purposes, especially security in and around the courthouse. In a post-9/11 world, one in which

Zakrajsek also apparently seeks an injunction allowing her to use the Law Library. See Complaint, ¶ 35. However, this is a moot point, since, as set forth in Susan Armstrong's affidavit, Zakrajsek has not been told she may not use the Law Library, and is free to do so.

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judges have recently been assassinated, keeping track of those who enter the court buildings and adjacent areas and their purposes in being there is more important than ever. If persons were allowed to conduct the activities proscribed by the no solicitation policy, significantly more people would be present at the courthouse every day, and security concerns would skyrocket. Moreover, the policy does not proscribe more speech than necessary to further those interests. Id. at 1130-31. Indeed, the policy allows for persons to apply for permission to the presiding judge to conduct solicitation activities, and clearly sets for the procedure for doing so. In addition, solicitation activities are not disallowed on adjoining city sidewalks. Thus, the no solicitation policy allows for ample alternative means of communication. Id. at 1138 (noting that "alternative means" test does not mean that there might be some imaginably less restrictive alternative, but rather, that the speaker's ability to communicate effectively is abrogated). Thus, the content-neutral no solicitation policy is a reasonable time, place, and manner restriction. Zakrajsek also contends that the policy's terms are "vague and ambiguous" and do not give adequate notice of the conduct proscribed. A statute is void for vagueness if (1) it does not sufficiently define the conduct it prohibits and (2) does not establish minimal guidelines for enforcement. United States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir. 2005). Despite Zakrajsek's conclusory allegations that the policy is vague, a reading of the policy reveals that it is quite specific in its definition. The policy forbids "solicitations for donations, selling or peddling, to the distribution of sales or informational material of every nature, and to offers to provide legal advice or services" and further defines solicitation as: A. Any activity which might be considered or interpreted as the promotion, sale or transfer of products, services, or memberships, donations, or for the participation in a venture of any kind, including organizational or grievance activities other than those activities designed by employees to promote employee activities or employee welfare.

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B. The distribution and/or posting of handbills, leaflets, circulars, advertising or other printed material for purposes cited above. SOF ¶ 7. Moreover, the policy sets forth guidelines for enforcement, i.e., that court supervisory personnel are to first advise the solicitor of the procedures to obtain authorization, and then to request that the solicitor "discontinue their activities or remove themselves from Court premises." SOF ¶ 9. If the solicitor continues soliciting, the staff is to notify court security. SOF ¶ 10. Thus, not only does the policy give a detailed definition of what conduct is prohibited, but also sets forth the enforcement procedures court supervisory personnel are to employ. The policy is neither vague nor ambiguous in its terms. Zakrajsek also seems to argue that the policy is unconstitutional as applied to her because it was enforced against her on a selective and unequal basis due to her "desire to serve God in the highest and greatest purpose for her life and for which God created her, and her outward and open expression of her religious beliefs." SOF ¶ 22. By her own admission, Zakrajsek was using the Law Library to "spread the Gospel of Jesus Christ." SOF ¶ 1. The terms of the policy include not only speech proposing a commercial transaction, but also proselytizing. As noted above, the policy is content neutral, and does not proscribe only certain viewpoints, be they "religious" or not. In any event, Zakrajsek has come forth with no evidence that she was singled out for her religious beliefs3. And, according to Armstrong's undisputed testimony, her actions in enforcing the no solicitation policy had nothing to do with Armstrong's attitudes toward Zakrajsek's religious beliefs. SOF ¶ 19. Zakrajsek's contention is therefore without merit. V. State Defendants Possess Qualified Immunity In making a determination on qualified immunity, the court first decides whether the state actor's conduct violated a constitutional right based on the facts alleged. Saucier
Indeed, Zakrajsek has failed to conduct discovery or provide any disclosures in this case, including an initial Rule 26 disclosure, and the discovery deadline has long since passed.
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v. Katz, 533 U.S. 194, 201 (2001). The facts are taken in the light most favorable to the injured party. If they fail to conclusively establish a constitutional violation, the inquiry ends and the state actors are immune from suit. Id. But if the facts indicate a constitutional violation, the next step is to determine whether the right was clearly established. Id. The final inquiry is whether it would have been clear to a reasonable state actor that his conduct was unlawful in the situation he confronted. Id. at 202. The existence of qualified immunity is a question of law. Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993). State officials are entitled to qualified immunity from liability for civil damages unless their conduct violates clearly established constitutional rights that a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). Qualified immunity protects governmental defendants not only from liability but also from suit. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536 (1991). Once a governmental defendant raises the qualified immunity defense, the burden shifts to the plaintiff to show that the defendant's conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Lassiter v. Alabama A & M University, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). The plaintiff has the burden to show a violation of a "clearly established" law; and "[t]his burden is quite heavy [citation omitted], for the plaintiff must do more than simply allege the violation of a general legal precept." Jantz v. Muci, 976 F.2d 623, 627 (10th Cir.1992) cert. denied, 508 U.S. 952, 113 S. Ct. 2445 (1993).4 The burden requires a

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See, also, Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir.1994) (holding that once the defendant raises the defense of qualified immunity "the plaintiff then has the burden to show with particularity facts and law establishing the inference that the defendants violated a constitutional right.").

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plaintiff to prove to the court that there is "clearly established" law that is sufficiently identical factually and legally to overcome the immunity. Lassiter, 28 F.3d at 1150. Or as stated in Lassiter: Unless a government agent's act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. . . . For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances. Lassiter, 28 F.3d at 1149-50. Now that the State Defendants have asserted qualified immunity, the burden is on Zakrajsek to cite case law that is indistinguishable factually and legally to the present case to overcome the immunity. Or as stated in Nicholson v. Georgia: In satisfying this burden, the plaintiff cannot point to sweeping propositions of law and simply posit that those propositions are applicable. Instead, the plaintiff must draw the court's attention toward a more particularized and fact-specific inquiry. . . show[ing] that there existed sufficient case law establishing the contours of his or her constitutional rights such that the unlawfulness of the defendant's conduct would have been apparent to a reasonable official in the same circumstances. . . . If no such case law exists, then the defendant is entitled to qualified immunity. Nicholson v. Georgia Dept. of Human Resources, 918 F.2d 145, 147 (11th Cir. 1990) (citations omitted). Under the "clearly established law" test, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right." Anderson v. Creighton, 483 U.S. 635, 640 (1987); Baker v. Clover, 177 Ariz. 37, 864 P.2d 1069 (App. 1993).5 The Ninth Circuit has strictly applied the doctrine of
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See, also, Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993) (when a party asserts qualified immunity, the Court must determine "[w]hether, in light of clearly established principles governing the conduct in question, the [party asserting qualified immunity] objectively could have believed that his conduct was lawful.").

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qualified immunity and requires the law to be sufficiently developed at the time the acts were alleged to have occurred in order to impose liability. Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1113 (9th Cir. 1988), cert. denied, 490 U.S. 1006 (1989). The Ninth Circuit has also pointed out that case law from other circuits may be insufficient to establish that the law is "clearly established" in the Ninth Circuit so as to overcome the immunity within this circuit. Id. VI. Plaintiff's Individual Capacity Claim Against Judge Campbell Must Be Dismissed Zakrajsek purports to sue Judge Campbell in his individual, as well as official, capacity. See Complaint, p. 1 ("individually and in his capacity as Presiding Judge"). In order to be individually liable for an action brought pursuant to 42 U.S.C. § 1983, a defendant must have played an affirmative part in depriving plaintiff of constitutional rights. Rizzo v. Goode, 423 U.S. 362, 377 (1976); King v. Atiyeh, 814 F.2d 565, 567-68 (9th Cir. 1987). Moreover, a plaintiff cannot impose liability upon a defendant solely on the theory that he or she has supervisory authority. Claims pursuant to § 1983 will not support liability on the theory of respondeat superior. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). A supervisor cannot be held personally liable for constitutional deprivations caused by his subordinates, absent his participation or direction in the deprivation. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984). In her Complaint, Zakrajsek does not set forth any acts taken by Judge Campbell that form the basis of liability against him other than stating that he is "the person responsible for and who actually promulgates rules and policy of the Maricopa County Superior Court and the facilities associated therewith including but not limited [to] the Maricopa County Law Library." See Complaint, ¶ 15. This, of course, Judge Campbell did in his official capacity as Presiding Judge. Zakrajsek has not subsequently presented

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any facts supporting Judge Campbell's personal involvement and participation in the alleged violation of her federal civil rights. Therefore, her individual capacity claim(s) against Judge Campbell must be dismissed. VI. This Court Must Also Dismiss Plaintiff's State-Law Defamation Claim Zakrajsek's state-law defamation claim is barred due to her failure to serve a notice of claim. A prerequisite to filing a claim against a public entity or public employee is a timely notice of claim that comports with requirements of A.R.S. § 12-821.01. The claim statute requires that a notice of claim must be filed within 180 days after the cause of action accrues. If the claimant asserts a claim against a public employee, the claimant must give notice to that public employee. See Crum v. Superior Court, 186 Ariz. 351, 352, 922 P.2d 316, 317 (App. 1996); Johnson v. Superior Court, 158 Ariz. 507, 509, 763 P.2d 1382, 1384 (App. 1988). Any claim that is not filed in compliance with the claim statute is barred. The claim statute states, in relevant part, the following: Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity or public employee to understand the basis upon which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon. A.R.S. § 12-821.01. As stated in the notice of claim statute, all claims are barred if there is no timely notice of claim. In the present case, there was no notice of claim given to any of the State Defendants. Since there is no notice of claim, Zakrajsek's state-law defamation claim must be dismissed.

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Furthermore, Zakrajsek has not adduced any evidence establishing exactly what Armstrong or Teenstra allegedly said, nor to what third person or persons the statement or statements were published. Indeed, Zakrajsek has failed to provide any disclosure statements in this matter at all, nor has she conducted any discovery. Without such evidence, Zakrajsek cannot maintain her defamation claim. Conclusion For the reasons set forth above, State Defendants respectfully request that this Court grant its Motion for Summary Judgment and dismiss Plaintiff's Complaint in its entirety. RESPECTFULLY SUBMITTED this 1st day of September , 2005. TERRY GODDARD Attorney General

s/Carrie J. Brennan CARRIE J. BRENNAN Assistant Attorney General Attorneys for Defendant

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The foregoing document was filed electronically this 1st day of September , 2005, with a copy mailed this same date, to: The Honorable Stephen M. McNamee United State District Court Judge 401 W. Washington Phoenix, AZ 85003 AND Connie R. Zakrajsek P. O. Box 2065 Phoenix, AZ 85001 Plaintiff Pro Se COPY of the foregoing to be served electronically, on: Susan Linde Hable, Esq. Maricopa County Attorney's Office Division of County Counsel 222 N. Central Ste 1100 Phoenix AZ 85004 Attorneys for Maricopa County

s/Chauntelle Leavitt _____ Secretary to: CARRIE J. BRENNAN
894769

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