Hoenack v. Litchfield Elementary School District No. 79 ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 August Jeremy Hoenack, No. CV-22-01903-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Litchfield Elementary School District No. 79, 13 Defendant. 14 15 At issue is Plaintiff August Jeremy Hoenack’s Motion for Injunction (Doc. 12, 16 “Mot.”), to which Defendant Litchfield Elementary School District Number 79 (“the 17 District” or “LSED”) filed a Response in opposition (Doc. 15, “Resp.”), and Plaintiff filed 18 a Reply in support (Doc. 18). The Court has reviewed the briefing and evidence submitted 19 by the parties and finds this matter appropriate for disposition without oral argument. See 20 LRCiv 7.2(f). For the reasons set forth below, the Court denies Plaintiff’s Motion. 21 I. BACKGROUND 22 Plaintiff is an elected member of the District’s Governing Board (“the Board”). 23 (Doc. 1-4, Compl. ¶ 26.) He filed this action against the District in Maricopa County 24 Superior Court on August 15, 2022.1 (Doc. 1, Notice of Removal.) The District removed 25 the case to this Court on November 7, 2022. Plaintiff is proceeding pro se in this matter. 26 Plaintiff alleges that during a series of meetings in 2021 and 2022, members of the 27 1 Plaintiff initially named as defendants other Board members, the District superintendent, 28 and an attorney for the District, but voluntarily dismissed these individual defendants on October 17, 2022. (Doc. 1-6, Plaintiff’s Voluntary Notice of Dismissal.) 1 Board violated Arizona’s Open Meeting Law, A.R.S. § 38-431.01 et seq., by taking various 2 actions that prohibited Plaintiff from discussing items on, or reasonably related to items 3 on, the meeting agendas. (Compl. ¶¶ 2–23.) Plaintiff alleges that the Board members took 4 these actions in order “to stifle all opposition speech,” including Plaintiff’s efforts to reveal 5 that the District “uses its resources to indoctrinate [children] with glittery socialist fads that 6 are attractive to mis-guided superintendent and board, . . . all of which are different flavors 7 of CRT [critical race theory].” (Compl. ¶¶ 14, 27.) Plaintiff raises several claims for relief: 8 a claim under Arizona’s Open Meeting Law, the First Amendment to the United States 9 Constitution, and Article 2, Section 6 of the Arizona Constitution; a claim for defamation 10 with malice; a claim for intentional infliction of emotional distress; and a claim for false 11 light invasion of privacy. (Compl. ¶¶ 201–51.) 12 On November 22, 2022, Plaintiff filed the instant Motion for Injunction pursuant to 13 Federal Rule of Civil Procedure 65(a), 42 U.S.C. § 1983, and the First Amendment. 14 Plaintiff explains that his Motion is “about separate issues that occurred on later dates, but 15 are related to my Complaint,” which he incorporated into his Motion by reference. (Mot. 16 at 2.) Plaintiff requests “an injunction to remove ‘a materially adverse action capable of 17 deterring [Plaintiff] from exercising his own right to speak’”—namely, a restriction that 18 requires Plaintiff to attend meetings of the Board via Zoom. (Id. at 2, 14.) 19 The Zoom-only restriction arose as a result of an application for an Injunction 20 Against Harassment (“the Injunction”) filed against Plaintiff by Board President Kimberly 21 Moran. In the application, Ms. Moran stated that on two occasions in early 2022, Plaintiff 22 “yelled and screamed at me in a threatening manner,” which “left me shaken and fearful 23 for my personal safety.” (Doc. 12-1 at 12.) On March 21, 2022, the Hassayampa Justice 24 Court granted the application and ordered that “Defendant shall have no contact with [Ms. 25 Moran] except through attorneys, legal process, court hearings” and “email to board email 26 address ONLY for school board related issues ONLY. Zoom/remote sessions for School 27 Board related meetings, study session ect. [sic]. No other times.” (Doc. 12-1 at 9.) After an 28 evidentiary hearing, the Justice Court found that Plaintiff had committed a series of acts 1 comprising harassment under A.R.S. § 12-1809(T)(1)(a) and kept the Injunction in place. 2 (Doc. 15-1 at 82:1–84:5.) On December 30, 2022, the Maricopa County Superior Court 3 affirmed the Injunction. (Doc. 21-1.) 4 The District was not a party to the proceeding in the Justice Court. However, to 5 allow Plaintiff to participate in Board meetings while complying with the Injunction, the 6 District “made arrangements for Plaintiff to participate in Board meetings and study 7 sessions by Zoom.” (Resp. at 3.) Plaintiff concedes that the District was not “officially” 8 involved in imposing the Zoom-only restriction, but contends that the District failed to 9 adopt his preferred alternative of requiring all Board members to attend meetings via 10 Zoom. (E.g., Reply at 1–2.) Plaintiff has submitted evidence of technical problems that 11 have occurred during Board meetings. (See Doc. 12-1, Doc. 18-1, Doc. 22.) The District 12 concedes that technical problems have occurred, but points out that Plaintiff’s evidence 13 shows the District has been implementing or attempting to implement measures to address 14 these problems. (See, e.g., Doc. 12-1 at 19–20, 25, 28.) For example, an email exchange 15 shows that the District offered Plaintiff a separate space onsite for Board-meeting 16 participation. (Doc. 12-1 at 28.) Plaintiff refused, suggesting “each and every Board 17 member to be on Zoom in their own little hidey-hole.” (Doc. 12-1 at 28–29.) In a 18 subsequent email exchange, Plaintiff again rejected an offer from Ms. Moran to utilize on- 19 site space. (Doc. 18-1 at 18.) In his response, Plaintiff called Ms. Moran’s statement that 20 Plaintiff’s “home setup continues to have issues” a “bald-faced lie” from “LESD’s perjurer 21 in chief.” (Doc. 18-1 at 18.) Plaintiff filed a declaration documenting technical problems 22 during a meeting on January 10, 2023, which prevented Plaintiff from voting on a motion 23 despite apparent efforts to rectify the problems. (Doc. 22.) 24 In his Motion, Plaintiff requests that the Court enter an injunction ordering that: 25 1. Kimberly Moran’s Injunction Against Harassment CC2022044339 26 violates Plaintiff’s First Amendment Rights and is therefore null and void. 27 2. Justice Courts do not have jurisdiction over verbal disputes between 28 legislators during legislative meetings, to prevent future harassment 1 claims. 2 3. Litchfield Elementary School District must have security at all board 3 meetings. 4 4. Litchfield Elementary School District must have a trained and competent sound technician at all board meetings. 5 6 5. Litchfield Elementary School District pay Plaintiff damages in the sum of $16,094,318.12 or other amount the court deems just, for harm 7 to his business, calculated from the total of actual net losses of future 8 value of income from [his] business based on 2021 income, from liquidation and moving, and to prevent the virtual certainty of future 9 injury to his business. 10 6. Litchfield Elementary School District pay Plaintiff punitive damages 11 in the sum of $48,282,954.36, or other amount the court deems just which is three times, or a multiple the court deems just, of business 12 losses, to deter the virtual certainty of school districts from violating 13 board members constitutional rights to free speech in the future. 14 7. Litchfield Elementary School District pay Plaintiff damages in the sum of $6,000,000.00 or what the court deems just, for damages to 15 reputation at large, in the local community, among parents and 16 stakeholders in the school district, standing on the school board, severe emotional distress, sleep deprivation, anxiety, personal 17 humiliation, public humiliation, mental anguish and suffering, ill 18 physical and emotional health, any sense of safety, or feeling that he can ever have home in his community, and costs of moving, and cost 19 of starting a new life elsewhere, and substantial punitive damages for 20 them to prevent the virtual certainty of future injury to him and members of the public who have hopes of getting a true education for 21 their children. 22 (Mot. at 14–15.) The District opposes Plaintiff’s requested relief. (Resp. at 12.) 23 II. LEGAL STANDARD 24 “A preliminary injunction is an ‘extraordinary and drastic remedy, one that should 25 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 26 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 27 U.S. 968, 972 (1997)). To obtain preliminary injunctive relief, a plaintiff must show: (1) 28 1 he is “likely to succeed on the merits”; (2) he is “likely to suffer irreparable harm in the 2 absence of preliminary relief”; (3) “the balance of equities tips in his favor”; and (4) “an 3 injunction is in the public interest.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 4 2015) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The Ninth 5 Circuit also has stated that “‘serious questions going to the merits’ and a hardship balance 6 that tips sharply toward the plaintiff can support issuance of an injunction, assuming the 7 other two elements of the Winter test are also met.” Drakes Bay Oyster Co. v. Jewell, 747 8 F.3d 1073, 1085 (9th Cir. 2013) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 9 1127, 1132 (9th Cir. 2011)), cert. denied, 573 U.S. 947 (2014). 10 III. ANALYSIS 11 Defendant argues that Plaintiff is not likely to succeed on the merits of his First 12 Amendment claim against the District. (Resp. at 5–11.) The Court agrees. As the District 13 notes, the District did not take any action limiting Plaintiff’s participation in Board 14 meetings to Zoom. That action was taken by the Justice Court, in a proceeding to which 15 the District was not a party. (Resp. at 6–7.) Plaintiff does not dispute this, but nonetheless 16 contends that the District is “obligated to remove the constitutional obstacles defined by 17 Houston Community College System v. Wilson, whether or not LESD was officially 18 involved in causing [Plaintiff’s] limitation.” (Reply at 2.) Wilson does not support 19 Plaintiff’s claim. In Wilson, a member of the board of a community-college district raised 20 a claim that the board took retaliatory actions against him—namely, a verbal censure—for 21 his engaging in protected speech. 142 S. Ct. 1253, 1259 (2022). The Supreme Court noted 22 that a plaintiff pursuing a First Amendment retaliation claim must show “that the 23 government took an ‘adverse action’ in response to his speech that ‘would not have been 24 taken absent the retaliatory motive.’” Id. at 1260 (quoting Nieves v. Bartlett, 139 S. Ct. 25 1715, 1722 (2019)). The Supreme Court held that the board’s verbal censure of the plaintiff 26 did not amount to a material adverse action giving rise to an actionable First Amendment 27 claim against the board. Id. at 1261–64. 28 Here, Plaintiff has not shown that the District took any material adverse action 1 against him with respect to the Zoom-only restriction imposed by the Justice Court, let 2 alone an action that “would not have been taken absent the retaliatory motive.” Wilson, 142 3 S. Ct. at 1260. Plaintiff points to the District’s inaction on his alternative proposal that all 4 Board members participate in meetings via Zoom (Reply at 2), but he provides no authority 5 or persuasive argument that the District’s failure to adopt his preferred response to the 6 Injunction violates the First Amendment. To be sure, it is proper that the District take 7 reasonable efforts to ensure that Plaintiff can fully participate in Board meetings, including 8 voting. But Plaintiff does not provide authority or persuasive argument that the technical 9 problems with Zoom give rise to an actionable First Amendment claim. The Court does 10 not doubt the sincerity of Plaintiff’s frustrations with participating on Zoom, but Plaintiff 11 has not shown that the District violated his First Amendment rights.2 12 Moreover, to the extent Plaintiff requests that the Court declare that the Injunction 13 is “null and void” and that the Justice Court lacked jurisdiction to impose it, and order that 14 security be in place at Board meetings to allow Plaintiff’s in-person presence, Plaintiff’s 15 claim amounts to a de facto appeal of a state-court judgment that is barred by the Rooker- 16 Feldman doctrine. See Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994) (recognizing 17 that the doctrine bars a losing party in state court “from seeking what in substance would 18 be appellate review of the state judgment in a United States district court, based on the 19 losing party’s claim that the state judgment itself violates the loser’s federal rights” (citing 20 Dist. of Colum. Ct. of Apps. v. Feldman, 460 U.S. 462, 482 (1983), and Rooker v. Fidelity 21 Trust Co., 263 U.S. 413, 416 (1923)); see also Bianchi v. Rylaarsdam, 334 F.3d 895, 900– 22 02 (9th Cir. 2003) (holding that Rooker-Feldman applies if the relief sought would 23 necessarily undo a state-court judgment); Doe v. Mann, 415 F.3d 1038, 1042 n.6 (9th Cir. 24 2005) (“Rooker-Feldman applies when the plaintiff in federal court claims that the state 25 2 In his Reply, Plaintiff argues for the first time that the Injunction proceeding—including 26 the evidentiary hearing held in the Justice Court at Plaintiff’s request—constituted a “meeting” of the Board within the meaning of A.R.S. § 38-431 because the proceeding 27 involved a quorum of Board members (excluding Plaintiff) and because these Board members colluded to commit perjury against him. (Reply at 2–3.) Plaintiff further argues 28 that the District is taking action against him by “deliberatively screwing up Zoom.” (Id. at 5–6.) These contentions are not supported by the evidence. || court did not have jurisdiction to render a judgment.’’).* To the extent Plaintiff requests that 2|| the Court order a sound technician to be present at Board meetings, the request is moot || because Plaintiff's evidence shows the District already has sound technicians present. (See, e.g., Doc. 12-1 at 25, 28; Doc. 18-1 at 18.) To the extent Plaintiff requests monetary relief, 5 || he fails to show that he will be irreparably harmed by proceeding through the regular course || of litigation, in which alleged injuries may be compensable with monetary damages. See 7\| Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir. 2009) (“Preliminary injunctive relief 8 || is available only if plaintiffs demonstrate that irreparable injury is likely in the absence of an injunction.”). 10 In sum, Plaintiff has shown neither a likelihood of success on the merits, Garcia, 11 || 786 F.3d at 740, nor “serious questions going to the merits.” Jewell, 747 F.3d at 1085. || Plaintiff therefore has not met his burden to show that he is entitled to a preliminary 13} injunction, and the Court need not discuss the remaining Winter factors. 14 IT IS THEREFORE ORDERED denying Plaintiff's Motion for Preliminary 15 || Injunction (Doc. 12). The Court will set a case management conference by separate Order. 16 Dated this 2nd day of March, 2023. CN 17 “wok: 18 wefehlee— Unifga StatesDistrict Judge 19 20 21 22 23 24 25 26 3 In its Response, the District also argued that the Younger and Pullman □□□□□□□□□□ doctrines applied because Plaintiff's appeal of the Injunction was ongoing at the time the 28 parties briefed Plaintiffs Motion. (See Resp. at 7-9.) The Maricopa County Superior Court as since affirmed the Justice Court’s order imposing the Injunction. (Doc. 21-1.) -7-