317 F.Supp. 1122 (D.Mass. 1970), Civ. A. 70-1082, McQueen v. Druker

Docket Nº:Civ. A. 70-1082
Citation:317 F.Supp. 1122
Party Name:McQueen v. Druker
Case Date:October 05, 1970
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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317 F.Supp. 1122 (D.Mass. 1970)

William McQUEEN and Patricia McQueen

v.

Bertram DRUKER and Representatives of the late Joseph Togglieb d/b/a CastleSquare Associates.

Civ. A. No. 70-1082.

United States District Court, D. Massachusetts.

Oct. 5, 1970

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[Copyrighted Material Omitted]

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        Michael L. Altman, Michael Unger, Brian Michael Olmstead, Boston Legal Assistance Project, Dorchester, Mass., for William McQueen and Patricia McQueen.

        Robert J. Sherer, Roche, Carens & DeGiacomo, Boston, Mass., for Bertram Druker and Joseph Gottlieb d/b/a Castle Square Associates.

        OPINION

        WYZANSKI, Chief Judge.

        Introduction

        This is an action for an injunction, for a declaratory judgment, and for damages. Plaintiffs are tenants threatened with eviction from a housing project. The originally named defendant, Druker and Gottlieb, were two private persons who as landlords of the project had been financially assisted by the federal government under § 221(d)(3) of the National Housing Act and by the state government in other ways. Gottlieb died October 4, 1970. For convenience, reference will be made to him instead of to his representatives. Count 1 alleges that defendants' threatened use of state eviction proceedings violates plaintiffs' rights under the due process clauses of the Fifth and Fourteenth Amendments inasmuch as defendants failed to give them notice of good cause (other than the expiration of their lease) for evicting them and have not afforded them a hearing. Count 2 alleges that defendants' threatened use of state eviction proceedings violates plaintiffs' rights under the First Amendment inasmuch as defendants are motivated by retaliation for plaintiffs' exercise of their rights of association with other tenants in presenting grievances to defendants, to the FHA, and to the courts.

        Jurisdiction is predicated chiefly upon 28 U.S.C. § 1343(3).

        Findings of Fact

        1. Defendants, Druker and Gottlieb, doing business as Castle Square Associates Company, own the Castle Square project. They are referred to as § 221(d)(3) landlords because they have borrowed money on a mortgage note pursuant to § 221(d)(3) of the National Housing Act, as amended, 75 Stat. 149, 150, and are subject to the regulatory agreement referred to in Hahn v. Gottlieb (1st Cir.), 430 F.2d 1243, Aug. 14, 1970.

        2. Boston Redevelopment Authority, an agency of the Commonwealth of Massachusetts, acquired, by eminent domain proceedings, from private owners the land on which the Castle Square project stands. It deeded to City Redevelopment Corporation, a private corporation, which Druker and Gottlieb were interested in, the land, subject to a 'Land Disposition Agreement'. Both that agreement and the covenants in the deed provided that the land could be used only for the execution of the Boston South End Urban Renewal Project and for the development of a housing project which complied with specified restrictions. For example, the landlord must give preference to tenants displaced by redevelopment activity, (Ex. 1, Sec. 301(a)(3)) must not 'discriminate upon the basis of race, creed, color, or national origin' in the lease of property, (Ex. 1, Sec. 301(a)(4)) and must consult with the Boston Redevelopment Authority 'with respect to its rental

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program * * * and all aspects of the rental program which relate to or have an effect upon the selection of tenants.' (Ex. 1, Sec. 301(e)) City Redevelopment Corporation deeded the land, subject to the aforesaid restrictions, to defendants, who expressly assumed their transferor's obligations. Thereafter defendants executed a§ 221(d)(3) mortgage.

        3. The City of Boston agreed that, in view of the purposes of the project, the owners of Castle Square should be taxed, instead of on the basis of the assessed value of the property, at the special rate of 15% Of gross income, a rate far lower than the prevailing rate in Boston.

        4. Castle Square is managed by a project director, Edwin D. Abrams. (Stip. 1, par. 4) Although he is not an employee of defendants but of Castle Square Associates Management Co., it is undisputed that Abrams has authority to act for defendants with respect to Castle Square tenants, leases, rentals, and evictions.

        5. Plaintiffs, William McQueen and his wife, Patricia, are tenants of apartment 6-D, Emerald Court, Boston, one of 500 apartment units in a housing project called Castle Square. They had been previously displaced by urban renewal and were entitled to the priority provided by 24 C.F.R. § 221.537(c) and by defendants' obligations to Boston Redevelopment Authority already mentioned. The McQueens entered upon their occupancy on February 9, 1967 pursuant to a written lease which expired on July 31, 1967, but which is automatically renewable for successive one year terms 'unless either Landlord or Tenant, at least sixty (60) days prior to the end of the then current term, shall notify the other party, in writing, that it elects to terminate this Lease at the end of the then current term.'

        6. May 29, 1970 Abrams in his capacity as project director notified the McQueens that:

        'In as much as you claim to be tenants under a lease dated February 9, 1967, * * * Castle Square Associates Co. elects to terminate said lease at the expiration of the current term July 31, 1970. You are ordered to vacate the premises presently occupied by you at 6-D Emerald Court at the expiration of said term * * *' (Stip. 1, Ex. A)

        That reference to the expiration of the lease as the cause for the termination of the lease and orader to vacate 'is the only notice provided by defendants to plaintiffs with respect to the termination of the lease on July 31, 1970.' (Stip. 1, par. 8)

        7. Plaintiffs filed their complaint in this court August 28, 1970. August 31, 1970 defendants served upon plaintiffs a summary process writ for eviction pursuant to Mass.G.L. c. 239, returnable in the Boston Municipal Court September 7, 1970. In the state court defendants 'intended to rely on the established State law that a tenant who holds over after the expiration of a lease may be evicted without cause.' (Stip. 1, par. 11) 'By agreement of the parties, summary process action in the Boston Municipal Court will nt be marked for hearing until the present action is heard and determined by the Federal Courts.' (Stip. 1, par. 12)

        8. Although in his notice of May 29, 1970 to plaintiffs, Abrams referred only to the expiration of their lease, Abrams and defendants had other and more controlling causes for seeking to evict the McQueens. Indeed, this is plain from Abrams' action in sending on May 19, 1970 to each of the tenants at Castle Square a mimeographed statement of 'Management's Reasons For Eviction of the McQueen Family'. (Ex. A) This recites five reasons: (1) litigation caused by the McQueen's failure on several occasions during the last four years to make rental payments, (2) their defaults in maintenance of their apartment which required excessive repairs, (3) their failure to abide by regulations with respect to washing machines, which led to court proceedings, (4) the conviction of Mr. McQueen for an assault on one of Castle Square's employees, and (5) the McQueen's attitude. This last

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reason is set forth in the following words:

        'From Management's viewpoint, taking all the above circumstances into account, and the many confrontations which Management has had with the McQueen's it does not seem reasonable from Management's point of view that this family should continue to live in Castle Square.'

        9. There was a basis in fact for each of the five reasons which Abrams mentioned in his circular. The landlords of Castle Square had brought unsuccessful eviction suits, beginning in 1967, in the state courts against the McQueens for non-payment of rent; they had brought an unsuccessful eviction suit in 1969 against the McQueens for using a washing machine in violation of their lease; on the complaint of Allen, the superintendent of Castle Square, the Municipal Court of the City of Boston in January 1970 had adjudged Mr. McQueen guilty of an assault upon him; and in the McQueen apartment someone had stopped up the bathroom trap with a child's wooden bowling pin, and because Mrs. McQueen was unwilling to admit the plumber on his first trip, the plumber had to make and charge for two calls.

        10. Most important, is the fact that Abrams' citation of 'the many confrontations which Management has had with the McQueens' would be understood by the average tenant as referring not merely to McQueen's failures to pay rent. remove a washing machine, and other personal quarrels, but to his widely known activities in organizing and presenting tenants' claims to the landlords, to administrative agencies, and to courts. McQueen was one of the most prominent leaders of the tenants' group called The Castle Square Neighborhood Association. He was active in the tenants' paper called The Common Bond which was constantly critical of Abrams and of the management of Castle Square; was an organizer of demonstrations against the landlords; and was a party in Hahn v. Gottlieb (the recent federal litigation seeking to keep down the rental increases at Castle Square and to reform the leases) and in the FHA proceedings related thereto, as well as in other contentious matters involving tenants' alleged grievances. Mrs. McQueen was also involved, though not in a leadership capacity, with the tenants' group.

        11. Although there was a basis in fact for each of the reasons Abrams gave on May 19 for eviction, those reasons were not of equal importance in motivating the eviction. On August 25, 1970 McQueen's counsel, Altman, sought...

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