Posted by: Patricia Salkin | August 10, 2015

Ninth Circuit Court of Appeals Upholds Denial of Conspiracy Charges Against City Officials Over Development Projects

In this case Frank, Gabriela, Patricia, John, and Frank E. Konarski, owners of a housing development business in Tucson, appealed from the district court’s dismissal of their complaint against the City of Tucson and several city officials. The Konarskis alleged that city officials, in declining to meet with them to discuss a proposed ordinance and in refusing to reconsider an ordered shutdown of one of their housing development projects, discriminated and retaliated against them in violation of their constitutional and statutory civil rights, causing them economic damage and emotional distress.

The court found that the Konarskis have not pled facts plausibly indicating that the silence they received from city officials was retaliatory in nature. This was because the City Attorney Michael Rankin’s alleged instructions to city council members, that council members were “to avoid meeting” with the Konarskis “specifically because of a lawsuit involving civil rights violations”, indicates only that Rankin had advised his clients to avoid making any statements that might be used against them in pending litigation, not that he acted with retaliatory animus. As to the class-of-one claim, the Konarskis failed to allege that other plaintiffs had been granted private meetings with city officials during pending litigation against the City. Furthermore, with respect to the housing development project shutdown, they had not indicated that the City has in other instances allowed construction of a building in which the parapet wall exceeds the City’s standard height limitations. As a result, the Konarskis have failed to plausibly alleged an equal protection claim.

Additionally, of the Development department employees who allegedly made derogatory statements, the only one whom the Konarskis had suggested had an influence on the decision to shut down their project is director Ernie Duarte. However, the court found Duarte’s alleged comment that “nobody likes you” did not plausibly establish discrimination on the basis of Polish ancestry. The fact that one or two of the alleged statements by other lower-level Development department employees could plausibly be interpreted to convey animus against Polish people did not make out a widespread pattern of conduct sufficient to establish a city policy or custom of discrimination. Accordingly, the court affirmed the dismissal, but granted the Konarskis leave to amend the equal protection claim.

Konarski v Rankin, 603 Fed. Appx. 544 (9th Cir. CA 3/4/2015)

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