Pomeroy v. Merritt Plaza Nursing Home, Inc.

• Decision Date: 20 May 1985
• Docket Number: No. 83-2441,83-2441
• Citation: 760 F.2d 654
• Parties: Cynthia A. POMEROY, Plaintiff-Appellant, v. MERRITT PLAZA NURSING HOME, INC., Randall Deen and Jack Harmon, Individually and d/b/a Harmon Real Estate, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 654

760 F.2d 654

Cynthia A. POMEROY, Plaintiff-Appellant, v. MERRITT PLAZA NURSING HOME, INC., Randall Deen and Jack Harmon, Individually and d/b/a Harmon Real Estate Defendants-Appellees.

No. 83-2441.

United States Court of Appeals Fifth Circuit.

May 20, 1985.

Daves, McCabe & Hahn, Ellen Hahn, Austin, Tex., for plaintiff-appellant.

Sharp, Ward, Price, Hightower & Searcy, Jason R. Searcy, Longview, Tex., for Merritt and Randall Deen.

Huffman & Palmer, Inc., William M. Huffman, Franklin Jones, Jr., Marshall, Tex., for Harmon.

Appeal from the United States District Court for the Eastern District of Texas.

Before GEE, POLITZ, and WILLIAMS, Circuit Judges.

PER CURIAM:

Cynthia Pomeroy brought this action alleging that the defendants had refused to lease an apartment to her because of racial discrimination. After a bench trial, the district court found that the defendants had not discriminated against Pomeroy and entered judgment in their favor. We affirm.

I.

In October 1981, the plaintiff-appellant Cynthia Pomeroy, a white female with a two-year-old daughter, applied for assistance from the City of Marshall Housing Authority (the "Housing Authority") in Marshall, Texas. The Housing Authority granted her a certificate of eligibility to participate in the Section 8 Existing Housing Program under 42 U.S.C. Sec. 1437f. During the first week of November, Pomeroy found a suitable apartment and began leasing negotiations with Leta Harmon of Harmon Real Estate, one of the defendant-appellees in this case, and representatives of the Housing Authority. This apartment was owned by the Merritt Plaza Nursing Home and managed by Harmon Real Estate.

The parties reached an oral agreement that permitted Pomeroy to move into the apartment pending a required inspection of the apartment by the Housing Authority and the execution of a formal lease between Pomeroy, Harmon Real Estate, and the Housing Authority. The Housing Authority conducted its inspection the following week and sent Mrs. Harmon a list of required repairs. Several days later, Harmon Real Estate sent one Clyde Foster to the apartment to perform the repair work. The circumstances surrounding Foster's visit, as well as the course of subsequent relevant events, were hotly disputed at trial.

The defendants-appellees contended that Foster visited the apartment on several occasions and completed the repairs. They also contended that soon after Pomeroy moved into the apartment neighbors began to complain that Pomeroy was playing her radio or stereo too loudly, and that Jack Harmon of Harmon Real Estate told Pomeroy of the complaints and requested that she not create a disturbance. Harmon testified that, although Pomeroy agreed several times not to disturb the peace, the neighbors continued to complain. Finally, the appellees contend that Clyde Foster, while driving his truck past the apartment, observed Pomeroy lying on a blanket in front of her apartment wearing only a see-through negligee. Foster stated that Pomeroy waved suggestively to him. Foster reported this incident to Harmon Real Estate, which decided not to enter into a lease agreement with Pomeroy. Jack Harmon directed Leta Harmon to send Pomeroy a letter requesting that Pomeroy vacate the apartment. Thereafter, Jack Harmon filed forcible detainer proceedings in the Justice Court of Harrison County and, after a hearing, the court ordered Pomeroy evicted from the apartment.

For her part, Pomeroy contended that Foster visited the apartment only one time. On this occasion, Pomeroy claims that she was sitting on her sofa with a black male friend drinking coffee and examining college catalogues. According to Pomeroy, Foster left soon after arriving and never returned to complete the repairs. Pomeroy denies that she received complaints from her neighbors or from Jack Harmon regarding the volume of her stereo or that she had ever been in front of her apartment wearing only a negligee.

After Pomeroy was evicted, she filed a complaint with the Department of Housing and Urban Development (HUD) alleging that she had been evicted because of racial prejudice. HUD sent an agent to investigate Pomeroy's claim. The agent, William Maddox, interviewed Jack Harmon and Judge Robert Wood, the Justice of the Peace who had presided at the eviction hearing, but was unable to resolve the parties' differences. After receiving a Notice of Right to Sue from HUD, Pomeroy filed this action in federal district court under the Fair Housing Act, 42 U.S.C. Secs. 3601-3612, and 42 U.S.C. Secs. 1981, 1982, and 1985(3). After a bench trial, the court resolved all factual issues against Pomeroy and held for the defendants.

On appeal, Pomeroy argues that the district court's findings of fact were clearly erroneous and cannot support its judgment in favor of the appellees. Pomeroy also argues that the district judge erred in denying her posttrial motion to disqualify himself pursuant to 28 U.S.C. Secs. 144 and 455. The appellees dispute both contentions, suggesting as well that the federal courts lack jurisdiction to decide this case.

II.

We first consider the appellees' contention that federal jurisdiction is wanting. The appellees contend that Pomeroy failed to comply with the procedural requirements for bringing an action under the Fair Housing Act as set forth in 42 U.S.C. Sec. 3610. ¹ Specifically, the appellees contend that Pomeroy had no right to bring an action against the Merritt Plaza Nursing Home and its administrator, Randall Deen, because Pomeroy's administrative complaint filed with HUD did not name the nursing home or Deen as defendants. Furthermore, the appellees contend that Pomeroy failed to file her action in district court within the 30-day period established by Sec. 3610. Finally, the appellees contend that the civil rights statutes on which Pomeroy bases her claim do not provide a basis for federal jurisdiction because Pomeroy has not alleged that she suffered discrimination because of her race.

Some courts have held that a plaintiff's failure to comply with the procedural requirements of 42 U.S.C. Sec. 3610 prevents the plaintiff from basing federal jurisdiction on a violation of the Fair Housing Act. See, e.g., Green v. Ten Eyck, 572 F.2d 1233, 1241-42 (8th Cir.1978); Fair Housing Council of Bergen County, Inc. v. Eastern Bergen County Multiple Listing Service, 422 F.Supp. 1071, 1078 (D.N.J.1976); Sumlin v. Brown, 420 F.Supp. 78, 80 (N.D.Fla.1976). See also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. 10, 99 S.Ct. 1601, 1610 n. 10, 60 L.Ed.2d 66, 79 (1979) (noting that lower federal courts are divided on this issue). Like the court in Hodge v. Seiler, 558 F.2d 284, 285 (5th Cir.1977), however, we need not decide whether Pomeroy's failure to bring her action in federal court within 60 days of filing her HUD complaint deprives us of jurisdiction because the civil rights statutes that Pomeroy has cited, 42 U.S.C. Secs. 1981, 1982, and 1985(3), provide us with an alternate basis of federal jurisdiction. Addressing the question of jurisdiction under Sec. 1982, both the Supreme Court and this Court have held that white persons who are injured because of antiblack prejudice may obtain relief in federal court. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386, 392-93 (1969); Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir.1982); Faraca v. Clements, 506 F.2d 956, 959 (5th Cir.1975). The district court therefore had jurisdiction to hear this case and we have jurisdiction over the appeal.

III.

Turning to the merits of the case, we first consider whether the district judge erred in refusing to disqualify himself. During the course of the trial in district court, the district judge made several remarks that Pomeroy and her attorney believe indicated a prejudice against women. ² Pomeroy's attorney therefore filed a motion under 28 U.S.C. Secs. 144 and 455 to disqualify the district judge. The judge denied the motion, ruling that the motion, filed after the trial had ended, was not timely. The judge also ruled that Sec. 455 was inapplicable because he did not have a substantial interest in the outcome of the case.

The district judge's stated reasons for denying Pomeroy's motion are not a correct legal basis for his ruling. Section 144's language requires the moving party to file an affidavit "not less than ten days before the beginning of the term at which the proceeding is to be heard...." Since formal terms of court were long ago abolished, the literal ten-day requirement no longer applies. Instead, courts have simply required a party to exercise reasonable diligence in filing an affidavit after discovering facts that show bias. See, e.g., Smith v. Danyo, 585 F.2d 83 (3d Cir.1978). Pomeroy filed her motion promptly after the judge made the offending remarks. Also, Sec. 455(b)(1) requires a judge to disqualify himself "[w]here he has a personal bias or prejudice concerning a party ...," and not merely when the judge has an interest in the case.

Despite the district court's errors in explaining its ruling on the motion to disqualify, the court's decision to deny the motion was correct. Although her motion was timely filed under Sec. 144, Pomeroy failed to submit such an affidavit in support of it as Sec. 144 requires. Instead, the affidavit was executed by Pomeroy's attorney. A court may not grant relief under Sec. 144 if a party's counsel instead of the party executes an affidavit alleging personal bias or prejudice. Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir.1980); Paschall v. Mayone, 454 F.Supp. 1289, 1299-1301 (S.D.N.Y.1978). Furthermore, the district judge's remarks, while doubtless ill-advised, were not so intemperate that a reasonable person would necessarily question his impartiality. See Parliament Insurance Co. v. Hanson, 676 F.2d 1069, 1075 (5th Cir.1982) (district judge not required under Sec. 455 to recuse himself because of ...