425 F.2d 853 (2nd Cir. 1970), 441-444, Escalera v. New York City Housing Authority

Docket Nº:441-444, 33226-33229.
Citation:425 F.2d 853
Party Name:Pedro ESCALERA and Rose Escalera, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Ira S. Robbins, individually and as a Memberof the New York City Housing Authority, Simeon Golar, individually and as aMember of the New York City Housing Authority, and Albert A. Walsh,indiv
Case Date:April 29, 1970
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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425 F.2d 853 (2nd Cir. 1970)

Pedro ESCALERA and Rose Escalera, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants,

v.

NEW YORK CITY HOUSING AUTHORITY, Ira S. Robbins, individually and as a Memberof the New York City Housing Authority, Simeon Golar, individually and as aMember of the New York City Housing Authority, and Albert A. Walsh,individually and as aMember and Chairman of the New York City Housing Authority, Defendants-Appellees.

Rose Lee ROLLE, on behalf of herself and all other persons similarly situated, Plaintiff-Appellant,

v.

NEW YORK CITY HOUSING AUTHORITY, Ira S. Robbins, individually and as a Memberof the New York City Housing Authority, Simeon Golar, individually and as aMember of the New York City Housing Authority, and Albert A. Walsh,individually and as aMember and Chairman of the New York City Housing Authority, Defendants-Appellees.

Walter LOCKMAN and Viola Lockman, on behalf of themselves and all otherpersons similarly situated, Plaintiffs-Appellants,

v.

NEW YORK CITY HOUSING AUTHORITY and William Walsh, Ira S. Robbins and SimeonGolar, individually and in their capacities as a member of the New York CityHousing Authority, Defendants-Appellees.

Clarence HUMPHREY, Phyllis Humphrey, and Fannie Haywood, on behalf ofthemselves and all other persons similarly situated, Plaintiffs-Appellants,

v.

NEW YORK CITY HOUSING AUTHORITY, Ira S. Robbins, individually and in hiscapacity as a member of the New York City Housing Authority, and Francis V.Madigan, individually and in his capacity as a member of the New York CityHousing Authority,Defendants-Appellees.

Nos. 441-444, 33226-33229.

United States Court of Appeals, Second Circuit.

April 29, 1970

Argued Jan. 14, 1970.

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Nancy E. LeBlanc, New York City (MFY Legal Services, Inc., New York City, Harold J. Rothwax and Michael B. Rosen, New York City, of counsel), for plaintiffs-appellants Escalera and Rolle.

Henry A. Freedman, New York City, Center on Social Welfare Policy & Law, New York City, Lee A. Albert and Harold Edgar, New York City, Richard Kwasnik and Harold Washington, Bronx, N.Y. (Morrisania Legal Services, Bronx, N.Y., of counsel), for plaintiffs-appellants Lockman and Humphrey.

Harold Weintraub, New York City, (Harold Levy and Jeanne Dorfman, New York City, of counsel), for defendants-appellees.

Before MEDINA, WATERMAN and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

Appellants are tenants in New York City public housing projects. They brought four suits in the United States District Court for the Southern District of New York against the New York City Housing Authority (hereinafter cited as 'HA') and certain individuals as officers of the HA, in the form of class actions on behalf of themselves and all tenants similarly situated. The complaints invoked jurisdiction under the Civil Rights Act, 28 U.S.C. 1343(3) (1962), and alleged the deprivation of appellants' right to due process secured by the Fourteenth Amendment to the Constitution and of their rights under the United States Housing Act of 1937, 42 U.S.C. 1401 et seq. (1962). They sought injunctive and declaratory relief against certain alleged practices of the HA, 28 U.S.C. 2201, 2202 (1962), 42 U.S.C. 1983 (1970), and in two instances (Haywood and Lockman) a money judgment for additional rents which had been paid.

Appellants sought a preliminary injunction by filing an order to show cause. Defendant then moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the actions for, inter alia, failure to state a claim upon which relief could be granted, lack of jurisdiction, lack of substantial federal question, and failure to exhaust administrative

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remedies, and because the federal courts should abstain from considering these actions pending a determination by New York state courts in the first instance

After the parties submitted affidavits, argument on the motions was heard before District Judge Sylvester J. Ryan. Thereafter by an opinion of October 31, 1968 (67 Civ. 4236, 4306, 4307, 4414 S.D.N.Y.), and judgment of the next day, Judge Ryan granted defendants' motion, and dismissed the actions on the merits. We find error in the dismissal of these actions and remand to the district court to consider appellants' application for preliminary relief and to hold a trial on the merits.

The instant class actions challenge the constitutionality of the procedures used by the HA in three different types of actions: (1) termination of tenancy on the ground of non-desirability; (2) termination of tenancy for violation of HA rules and regulations; and (3) assessment of 'additional rent' charges under the HA lease for undesirable acts by tenants. The HA, a corporate governmental agency financed by federal, state and city funds, administers the largest public housing program in the country, housing more than 144,000 families.

I.

Since the complaints were dismissed at the pleadings stage on motions to dismiss, we must accept the allegations in appellants' complaints and supporting affidavits as true. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). An action, especially under the Civil Rights Act, should not be dismissed at the pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of the facts, which could be proved in support of their claims. Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Barnes v. Merritt, 376 F.2d 8 (5 Cir. 1967); York v. Story, 324 F.2d 450, 453 (9 Cir. 1963), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); 2A Moore, Federal Practice P12.08, at 2271-74 (1968). Considered in this light, the challenge to the procedures of the HA is as follows.

A. Termination for Non-desirability.

Tenants in HA projects are required to sign month-to-month automatically renewable leases which can be terminated at the end of any month by either party upon the giving of one month's notice. Leases are terminated by the giving of one month's notice if the tenant is found to be non-desirable. 1

If a tenant's undesirable acts persist to the point where the project manager decides he should recommend the termination of the tenancy on the ground of non-desirability, the manager has a meeting with the tenant at which he informs the tenant of his proposed recommendation, reviews with the tenant the information in the tenant's folder (which contains the entire history of the tenancy), and discusses the undesirable activity in question. The tenant is given a chance to explain his activity.

If after the meeting the project manager still wishes to recommend termination for non-desirability, the tenant is notified that he may submit a written statement to be sent with the project manager's recommendation and the tenant's folder to the HA Tenant Review Board (hereinafter cited 'TRB').

The TRB consists of eight officers of the HA. They consider the tenant's folder and the project manager's recommendation, and if they make a preliminary determination of the tenant's non-desirability, they inform the tenant in writing

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that they are 'considering a recommendation' of termination, that he may appear before the TRB to tell his side of the case if he requests an appearance in 10 days, and that if he so requests an appearance he will be informed of the nature of the conduct under consideration. If the tenant fails to request an appearance within 10 days, the preliminary determination of non-desirability is made final by the TRB Chairman.

If the tenant makes a timely request for an appearance, he is sent a form letter telling him the time and place of the scheduled hearing, the general definition of a non-desirable tenant (as set out in footnote 1, supra), a short, often one-sentence, statement of the nature of the particular non-desirable conduct under consideration, 2 and the fact that he may bring any person to help represent him at the hearing.

A panel of two or more, usually three, of the TRB members is present at the hearing. The HA ordinarily presents no witnesses, but rather has a panel member read a summary of the entries in the tenant's folder. The tenant or his representative is permitted to comment about the entries or question witnesses in that regard. The tenant is generally not permitted to see the contents of the folder, the names of those who complained of his non-desirable activity, or the summary of the entries. 3 The rules and regulations governing the TRB and its panels in non-desirability cases, set out in the TRB 'Handbook' are not made available to the tenant, even upon request. No transcript of the hearing is maintained.

Despite the summary notification to the tenant prior to hearing of the conduct under consideration, the panel decides whether the tenant is non-desirable on the basis of the tenant's entire folder; 4 thus the decision may be based in whole or in part on entries in the folder although the tenant received no notification prior to the hearing that the TRB was considering these entries, or indeed the decision may rest in some part on items in the folder about which the tenant is not notified even at the hearing.

If the panel decides that the tenant is non-desirable, the Chairman of the TRB notifies the tenant that the panel has determined that the tenant is ineligible. No findings or reasons grounding the panel's determination are released. Thereafter the HA gives the tenant the required one month's notice under lease to terminate the tenancy, and notifies the tenant that he should vacate. If the...

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