Housing Works, Inc. v. Turner

• Citation: 362 F.Supp.2d 434
• Decision Date: 30 March 2005
• Docket Number: No. 00 Civ. 1122(LAK).,00 Civ. 1122(LAK).
• Parties: HOUSING WORKS, INC., Plaintiff, v. Jason TURNER, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

Page 434

362 F.Supp.2d 434

HOUSING WORKS, INC., Plaintiff, v. Jason TURNER, et al., Defendants.

No. 00 Civ. 1122(LAK).

United States District Court, S.D. New York.

March 30, 2005.

COPYRIGHT MATERIAL OMITTED

Matthew D. Brinckerhoff, Joanna C. Schwartz, Emery Celli Brinckerhoof & Abady, LLP, New York City, for Plaintiff.

John P. Woods, Michael S. Adler, Zoe Davidson, Michael A. Cardozo, Corporation Counsel of the City of New York, New York City, for Defendants.

MEMORANDUM OPINION

KAPLAN, District Judge.

Plaintiff Housing Works, Inc. ("Housing Works") here sues the City of New York and several city officials, including former Mayor Rudolph Giuliani, pursuant to 42 U.S.C. § 1983, alleging that defendants violated its rights under the Equal Protection Clause of the Fourteenth Amendment and caused them to lose several state and city contracts in retaliation for asserting their First Amendment rights. Defendants move for summary judgment dismissing Housing Works' claims under the Equal Protection Clause and the First Amendment.

Defendants move further to strike as hearsay certain of Housing Works' evidentiary submissions, including portions of an affidavit by Housing Works co-executive director Charles King, newspaper clippings, and copies of its newsletter. They argue also that Housing Works' counterstatement of facts pursuant to Local Civil Rule 56.1(b) ignores facts and inflates others, and that its response to defendants' statement of facts pursuant to Rule 56.1(c) disputes defendants' factual assertions primarily by referring to sections of its counterstatement.¹ Finally, they assert that Housing Works may not rely on an opinion granting its motion for a preliminary injunction in a related case.²

I. Background

This case arises from the contentious relationship between Housing Works, a not-for-profit advocacy organization and provider of housing and services for people with HIV and AIDS, and the administration of former Mayor Giuliani. Housing Works, a vocal and litigious critic of the former mayor and his AIDS policies, alleges that certain high-ranking officials in the Giuliani administration, in retaliation for its First Amendment activities, caused it to lose state and city contracts pursuant to which it provided housing and services to homeless individuals with HIV or AIDS. Defendants contend that their actions were not retaliatory, but taken in consequence of Housing Works' fiscal difficulties and accounting problems.

The facts are laid out fully in the Report and Recommendation of Magistrate Judge James C. Francis IV, dated September 15, 2004 (the "Report and Recommendation"), and a decision by Judge Victor Marrero on an earlier motion.³ There is no need to repeat them here.

Magistrate Judge Francis recommended (1) denying the motion to strike, (2) granting the motion dismissing (a) the equal protection claims against Giuliani, Mastro, Barkan, Kaswan, Barrios-Paoli and Capoziello, (b) all claims against Cohen, (c) the First Amendment claim against Giuliani with respect to the final non-responsibility appeal, (d) all claims against the City other than the First Amendment and equal protection claims with respect to the final non-responsibility appeal and the New York State Department of Labor ("NYSDOL") and New York State Department of Health ("NYSDOH") contracts, and (e) the claim for reputational damages, and (3) denying the motion in all other respects.

Both parties timely filed objections.⁴ Defendants contend that the entire action should be dismissed as against all defendants. They argue that the Report and Recommendation erred in concluding that (1) the temporal proximity of the speech and the defendants' actions raises a genuine issue of fact as to retaliation, (2) Housing Works' speech was a matter of public concern, (3) whether the alleged retaliation began prior to the speech is an issue of fact, (4) Housing Works did not need to prove animus with respect to each defendant, and (5) there are questions of fact regarding whether defendants would have taken the same action regardless of Housing Works' speech under the Mt. Healthy City Board of Education v. Doyle⁵ test. On the equal protection claims, defendants argue that the magistrate judge misconstrued the evidence in concluding that other contractors were similarly situated. They argue further that the Report and Recommendation erred in not recommending dismissal as to all defendants on the basis of qualified immunity and the dismissal of all claims against the City of New York.

Housing Works also objects to the Report and Recommendation. It argues that genuine issues of fact remain as to former Mayor Giuliani's alleged participation in delaying the non-responsibility appeal and its alleged reputational injury.

II. Defendants' Additional Evidence

Defendants now submit seven supplemental declarations and an exhibit that were not before the magistrate judge, allegedly to clarify certain statements made in depositions and affidavits previously submitted. They argue that the additional evidence should be considered here because the Report and Recommendation "upheld Housing Works' claims on grounds different from those which had been addressed in the moving papers" and that some of the material issues of fact "are in fact not genuine as is shown below."⁶

The Court has discretion whether to consider evidence not submitted to the magistrate judge.⁷ Nevertheless, litigants cannot be permitted to use litigation before a magistrate judge as something akin to spring training exhibition game, holding back evidence for use once the regular season begins before the district judge.⁸

The motion for summary judgment was referred to a magistrate judge for a report and recommendation. Defendants submitted eighteen declarations and affidavits, fifteen reply declarations, and 185 exhibits in an attempt to show that there were no genuine issues of fact. The matter was litigated to the proverbial "fare thee well." Absent a most compelling reason, the submission of new evidence in conjunction with objections to the Report and Recommendation should not be permitted.

Defendants' excuse for not submitting the evidence to the magistrate judge is belied by the evidence they now submit. For example, the notice of claim they propose as Defense Exhibit 186 was attached to a letter of the same date to defendant and former Commissioner of the Human Resource Administration ("HRA") Lilliam Barrios-Paoli. The defendants submitted the letter as Exhibit 118. There is no reason why this notice of claim could not have been submitted to the magistrate judge, given that the letter to which it was attached was a hotly contested issue. In all the circumstances, defendants' reasons for not presenting this supplemental evidence to the magistrate judge are not persuasive and the Court therefore declines to consider it.

III. Objections

While the Court agrees with most of Magistrate Judge Francis's recommendations, it writes separately to discuss the defendants' arguments in respect of whether the October 16, 1997 letter was a matter of public concern, whether Mr. Turner acted as an arm of the state in withdrawing Housing Works' certification for the NYSDOL/NYSDOH contract, qualified immunity with respect to Housing Works' First Amendment-protected activities, and its alleged mission nonfulfillment damages.

A. The October 16, 1997 Letter

1. The Letter Involved a Matter of Public Concern

Magistrate Judge Francis held without discussion that the October 16, 1997 letter to Commissioner Barrios-Paoli and the attached notice of claim were protected conduct. The Court agrees, but this conclusion warrants elaboration.

In White Plains Towing Corp. v. Patterson,⁹ the Second Circuit held that a petition for redress of grievances "is `generally subject to the same constitutional analysis' as the right to free speech."¹⁰ Accordingly, a First Amendment claim can succeed only if, inter alia, the speech fairly can be considered as "related to any matter of political, social, or other concern to the community."¹¹ Whether an independent contractor's "speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record."¹²

Housing Works' letter of October 16, 1997 to Commissioner Barrios-Paoli informed her that it had filed a notice of claim with the City "for damages resulting from HRA's continued refusal to reimburse Housing Works for expenses incurred in the operation of [its] Scattered Site Program."¹³ Moreover, Housing Works advised her that "unless a contract is executed and we have received payment for all expenses and liabilities incurred to date by October 31, 1997 Housing Works will have no choice but to suspend operation of the program."¹⁴ It added that if suspension were necessary, Housing Works would expect the City to work with the clients to avoid any disruption to their lives and avoid any return to homelessness. It concluded that it was one of the few programs able to house chemically-dependent individuals with HIV/AIDS and that HRA's actions would result in harm to this vulnerable population.

Defendants assert that the letter did not address a matter of public concern, but merely a private contractual dispute between Housing Works and HRA.¹⁵ They contend that the "clear purpose ... was to resolve HW's ongoing contract dispute and advise HRA that HW would suspend the program absent a contract and full payment by a stated date."¹⁶

To be sure, the letter addresses primarily the contract that Housing Works hoped to negotiate with the City. However, "the mere fact that [Housing Works] took a personal interest in the subject matter of the speech does not remove the letter from the protection of the First Amendment."¹⁷ The letter goes beyond the arguably private issue of payment to Housing Works under the contract to address the needs of the people with HIV/AIDS who were served by the...