Boston Housing Authority v. Bridgewaters, 06-P-145.

• Decision Date: 20 August 2007
• Docket Number: No. 06-P-145.,06-P-145.
• Citation: 69 Mass. App. Ct. 757,871 N.E.2d 1107
• Parties: BOSTON HOUSING AUTHORITY v. Emmitt BRIDGEWATERS.
• Court: Appeals Court of Massachusetts

871 N.E.2d 1107

69 Mass. App. Ct. 757

BOSTON HOUSING AUTHORITY v. Emmitt BRIDGEWATERS.

No. 06-P-145.

Appeals Court of Massachusetts, Suffolk.

Argued November 10, 2006.

Decided August 20, 2007.

Ann E. Jochnick (James M. McCreight & Richard M.W. Bauer, Boston, with her) for the defendant.

Jay S. Koplove for the plaintiff.

The following submitted briefs for amici curiae:

Thomas P. Murphy for Disability Law Center & others.

Amy Copperman & Judith Liben, Boston, for Massachusetts Union of Public Housing Tenants.

Susan Ann Silverstein & Michael Schuster, of the District of Columbia, for AARP.

Present: KANTROWITZ, McHUGH, & GREEN, JJ.

McHUGH, J.

Emmitt Bridgewaters (Bridgewaters), a tenant in a residential complex owned and operated by the Boston Housing Authority (BHA), appeals from a summary process decision of the Housing Court evicting him and awarding possession of his unit to the BHA. The BHA commenced the summary process action after Bridgewaters pleaded guilty to a series of criminal charges stemming from his assault on his brother, Eric Bridgewaters (Eric). Bridgewaters's principal claim on appeal is that the BHA and the Housing Court failed to consider his entitlement to a reasonable accommodation for a mental illness that produced the assault.

1. Background. Since April 1, 2000, Bridgewaters has been a tenant under a written lease in the BHA's public housing complex located at 129 Elm Hill Avenue in the Dorchester section of Boston. Among other things, Bridgewaters agreed in the lease to

"[c]onduct [himself] . . . in a manner which will not disturb any other resident's or neighbor's peaceful enjoyment of their accommodations, will not harass, injure, endanger, threaten or unreasonably disturb any other resident . . . and which will be conducive to maintaining the development in a decent, safe and sanitary condition."

The lease also provided for termination if Bridgewaters engaged in

"[a]ny criminal or other activity which threatens the health or safety of another resident or a BHA employee, or which threatens their rights to peaceful enjoyment of public housing premises, or which threatens the health or safety of any person residing in the immediate vicinity of the public housing premises [or][a]ny violent . . . criminal activity on or off the BHA property."

See 42 U.S.C. § 1437d(l)(6) (2000); G.L. c. 121B, § 32.

On January 10, 2004, Bridgewaters was involved in a physical altercation with his partially paralyzed¹ twin brother, Eric, who was a tenant in a separate unit of the 129 Elm Hill Avenue development. According to Eric, he and Bridgewaters were arguing about childhood favoritism, slights, and insults, when suddenly Bridgewaters threw a glass of water in his face, then threw him "to the floor, kicked him in the eye and forehead and stomped and kicked him repeatedly about the neck and back." As the trial judge noted in his "Memorandum of Decision and Order on Defendant's Motion for Relief from Judgment," the beating was so severe that Eric "suffered paralysis in his other leg."

The police were called and came to the scene. Bridgewaters met the responding officers outside the apartment building, hoping "to tell his side of the story before the officers spoke to Eric." Among other things, Bridgewaters informed the police that Eric's injuries were self-inflicted and that he had only punched Eric once, in self-defense.² However, as noted by the judge in his memorandum, Eric's medical records indicated injuries that were "consistent with Eric's testimony that he was kicked in the eye, forehead, neck and back." The police arrested Bridgewaters, and following a plea or admission to sufficient facts, he was found guilty of assault and battery by means of a dangerous weapon, see G.L. c. 265, § 15A; assault and battery, see G.L. c. 265, § 13A; and assault and battery on a person with a disability, see G.L. c. 265, § 13K.

Relying on the lease provisions dealing with criminal activity, the BHA commenced a summary process action seeking to evict Bridgewaters from the complex. Bridgewaters did not file a written answer to the BHA's complaint. At trial, he represented himself, although he had been represented by counsel earlier, and offered testimony in which he recounted his version (or versions) of what had happened on the night in question. Throughout the trial, Bridgewaters insisted that some of Eric's injuries were self-inflicted and that any injuries he himself inflicted were the product of self-defense. Bridgewaters also testified that Eric was lying about the attack or exaggerating the magnitude of his injuries.

On four occasions during the trial, Bridgewaters testified that he suffered from bipolar disorder and manic depression³ and had not been taking his prescribed medication at the time of the assault. Although Bridgewaters had not asked before or during the trial for a "reasonable accommodation" for his mental health issues,⁴ the trial judge inquired at one point whether the matter should be referred to the Boston Tenancy Preservation Program (TPP).⁵ However, the attorney for BHA stated that, because of the severity of Bridgewaters's assault, it was not interested in preserving Bridgewaters's tenancy. As a result, the judge concluded that the TPP process could not be invoked.

Ultimately, the judge found "that [Bridgewaters] violated a provision of his lease by committing a crime on the public housing development grounds that threatened the health and safety of another resident." Accordingly, he granted the BHA possession of Bridgewaters's apartment.

After trial, Bridgewaters obtained counsel and filed a "Motion to Alter/Amend Or Reconsider Findings of Fact, Rulings of Law and Order for Judgment, Or Provide Relief from Judgment." The motion, brought under Mass.R.Civ.P. 59, 365 Mass. 827 (1974),⁶ sought relief from the Housing Court's judgment, arguing that Bridgewaters was entitled to a reasonable accommodation from application of the BHA's rules and policies because he was handicapped by mental disabilities, specifically bipolar disorder and borderline personality disorder. The judge denied the motion, stating:

"Motion is DENIED. Issue not raised at trial or before; even if it were, Peabody Properties[, Inc.] v. Sherman [, 418 Mass. 603, 638 N.E.2d 906 (1994),] controls. [Bridgewaters] took guilty plea to violent acts, no reasonable accommodation [would] be required."

Bridgewaters then filed a similar motion for relief from judgment pursuant to Mass. R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), which also raised, for the first time, the issue of a defective notice to quit. The claimed defect was a statement in the notice that it was "effective immediately" when the lease and the fair housing laws required a "reasonable period of time" to vacate. In a thoughtful memorandum analyzing all the posttrial claims Bridgewaters had raised, the judge denied the motion.

On appeal, Bridgewaters maintains that he is a disabled individual entitled to reasonable accommodations in the application of BHA rules and procedures and that his eviction without an attempt to accommodate his disability constitutes discrimination in violation of several Federal and State laws, including the Federal Rehabilitation Act (Rehabilitation Act), 29 U.S.C. § 794 (2000); the Federal Fair Housing Amendments Act (Fair Housing Act), 42 U.S.C. § 3604(f)(3)(B) (2000); the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (1990); the Massachusetts antidiscrimination statute, G.L. c. 151B, § 4(6) and (7A); and art. 114 of the Amendments to the Massachusetts Constitution. He also maintains that the notice of termination was defective and that the judge abused his discretion in denying relief pursuant to Mass.R.Civ.P. 60(b)(1). We find no error and therefore affirm.⁷

2. Analysis. "When reviewing the trial judge's decision, we accept his findings of fact as true unless they are clearly erroneous, and we give due regard to the judge's assessment of the witnesses' credibility." Andover Hous. Authy. v. Shkolnik, 443 Mass. 300, 306, 820 N.E.2d 815 (2005) (Andover Hous. Authy.), citing Mass. R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). However, "we scrutinize without deference the legal standard which the judge applied to the facts." Ibid., quoting from Kendall v. Selvaggio, 413 Mass. 619, 621, 602 N.E.2d 206 (1992).

a. Reasonable accommodation. Several Federal and State laws prohibit the BHA from discriminating against a tenant on the basis of his or her mental disability. See 42 U.S.C. § 3604(f); 29 U.S.C. § 794; 42 U.S.C. §§ 12101 et seq.; G.L. c. 151B, § 4(6), (7A). Under fair housing laws, discrimination includes a landlord's "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). See G.L. c. 151B, § 4(7A)(2) (same language).

The thrust of Bridgewaters's posttrial motions and his appeal is that his mental illness is a handicap controllable by medication. He claims that he attacked his brother because he was not taking any medication. Now back on appropriate medication and more closely supervised by his doctors and therapists, he urges that he is entitled to a reasonable accommodation, namely, a second chance from the BHA. Bridgewaters further claims that the BHA's failure to investigate the viability of his proposed reasonable accommodation constitutes discrimination under the fair housing and antidiscrimination laws. He insists that he properly asserted an affirmative defense at trial based on his handicap and that the trial judge erred in failing to consider it.

The parties spend a large amount of time in their briefs discussing the merits of Bridgewaters's request for a reasonable accommodation. They dispute whether Bridgewaters is indeed disabled. They argue about BHA's knowledge of Bridgewaters's alleged disability. The...