Steele v. United States Dep't of Hous. & Urban Dev.

• Decision Date: 07 September 2022
• Docket Number: CIVIL 3:17-cv-30049-KAR
• Parties: TANYA STEELE, Plaintiff, v. UNITED STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

TANYA STEELE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Defendants.

CIVIL No. 3:17-cv-30049-KAR

United States District Court, D. Massachusetts

September 7, 2022

MEMORANDUM AND ORDER ON DEFENDANTS JOHN PEDRO, JR. AND JOHN PEDRO REAL ESTATE ASSOCIATES MOTION FOR SUMMARY JUDGMENT, DEFENDANT WAY FINDERS, INC.'S (F/K/A HAP HOUSING) MOTION FOR SUMMARY JUDGMENT AGASINT PLAINTIFF, AND DEFENDANT JOHN PEDRO JR.'S MOTION TO STRIKE PLAINTIFF'S STATEMENT OF DISPUTED FACTS (DKT NOS. 165, 168, 192)

KATHERINE A. ROBERTSON, United States Magistrate Judge.

Tanya Steele (“Plaintiff”) brings this action pro se against John Pedro, Jr. (“Pedro”),^[1] and Way Finders, Inc., f/k/a HAP Housing (“Way Finders”) (collectively, “Defendants”), asserting a claim for discrimination in violation of the Federal Housing Act (“FHA”), 42 U.S.C. § 3617, against both Defendants.^[2] Presently before the court are Defendants' motions for summary judgment (Dkt. Nos. 165, 168) and Pedro's motion to strike Plaintiff's L.R. 56.1 statement of disputed facts (Dkt. No. 192). The parties have consented to this court's jurisdiction. See

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28 U.S.C. § 636(c); Fed.R.Civ.P. 73 (Dkt. No. 93). For the following reasons, Pedro's motion to strike is DENIED and Defendants' motions for summary judgment are GRANTED.

I. MOTION TO STRIKE

Pedro seeks to strike Plaintiff's L.R. 56.1 statement of disputed facts from the summary judgment record. The rule requires that a summary judgment motion “include a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried,” with citations to the record, and that the opposition “include a concise statement of the material facts of record as to which it is contended there exists a genuine issue to be tried,” also with citations to the record. L.R. 56.1. Pedro argues that Plaintiff's statement fails to comply with the rule because it is based on evidence that is unauthenticated and would be inadmissible at trial; consists of a recitation of immaterial and unsupported statements that lack citation to the record; and edits and mischaracterizes testimony and other evidence.

The purportedly unauthenticated documents Pedro seeks to strike consist of proof of service of process receipts signed by Deputy Sheriff Michael Powers and certifying that “on 4/13/2016 at 2:15 PM, [he] served a true and attested copy of the Request for Emergency Order Notice of Hearing on Temporary Restraining Order” as follows: “by leaving it at the last and usual place of abode of Jaime Rosa, 934 Berkshire Avenue #2 Springfield, MA 01151;” “ by leaving it at the last and usual place of abode of Jaime Rivera, 934 Berkshire Avenue Springfield, MA 01151;” “by leaving it at the last and usual place of abode of Daisy Rivera, 934 Berkshire Avenue Springfield, MA 01151;” and “by delivering in hand to Jackie Martinez at 934 Berkshire Avenue #2 Springfield, MA 01151” (Dkt. No. 190 at 82-85). Pedro relies on an outdated version of Fed.R.Civ.P. 56 to argue that subsection (c)(4) requires that certified documents be attached to supporting affidavits. In fact, this is no longer the case. “The

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requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be attached to the affidavit or declaration is omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials in the record.” See Fed.R.Civ.P. 56, Advisory Committee Notes to the 2010 Amendment. The current rule does allow “[a] party to object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56 (c)(2). The First Circuit recently declined to pass judgment on whether this requires that a document be authenticated, Joseph v. Lincare, Inc., 989 F.3d 147, 155 and n.4 (1st Cir. 2021), although in doing so the court citesd to one of its own decisions holding that a document was inadmissible at the summary judgment stage because it was unauthenticated. See G. v. Fay School, 931 F.3d 1, 14 (1st Cir. 2019) (citing Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000)). Nevertheless, the court compared its decision in Fay with a contrary decision from the Fifth Circuit noting that, after the 2010 amendment to Rule 56, all that must be shown is that the evidence “be capable of authentication at trial.” Maurer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017). Given the uncertainty of the First Circuit's position on this issue, this court will adopt the more liberal interpretation of the rule as enunciated by the Fifth Circuit in Maurer. Because the court presumes that Plaintiff could authenticate these documents at trial by calling Deputy Sheriff Powers to testify, the court will consider them as part of the summary judgment record.

Moreover, to the extent that the originals of these documents bear a seal purporting to be that of the Commonwealth of Massachusetts, as Plaintiff has represented, they are self-authenticating under Fed.R.Evid. 902(1).

Pedro also seeks to strike portions of Plaintiff's statement of disputed fact that he maintains are immaterial and unsupported by citation to the record. Regarding Pedro's claims of

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immateriality, it is up to the court to decide whether a particular fact is material in ruling on the motions for summary judgment. This is not a basis for striking Plaintiff's statement. As to the statements that are purportedly unsupported by the record, the court will assure itself that any alleged factual dispute is supported by record evidence before relying on a supposedly disputed fact. To the extent that a particular disputed fact is not supported, the court will disregard it.

Finally, the court turns to Pedro's claim that Plaintiff mis-states and mis-characterizes the evidence. The court agrees with Pedro that Plaintiff misquotes his testimony from the Housing Court hearing and will rely on the transcript of the proceeding rather than Plaintiff's revision of his testimony. Regarding Plaintiff's claimed mischaracterizations of the record, the court will rely not on Plaintiff's characterizations of the record but on the record itself.

Accordingly, Pedro's motion to strike Plaintiff's L.R. 56.1 statement of disputed facts is denied.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is ‘genuine' if the evidence ‘is such that a reasonable jury could resolve the point in the favor of the non-moving party ...,' Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018) (citation omitted), and a fact is ‘material' if it ‘has the potential of affecting the outcome of the case,' Perez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011) (citation omitted).” Taite v. Bridgewater State Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021). In evaluating whether a genuine dispute of material fact exists, a court “‘look[s] to all of the record materials on file, including the pleadings, depositions, and affidavits' without evaluating ‘the

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credibility of witnesses [ ] or weigh[ing] the evidence.'” Id. (second and third alteration in original) (quoting Ahmedv. Johnson, 752 F.3d 490, 495 (1st Cir. 2014)).

A party seeking summary judgment is responsible for identifying those portions of the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden either by “offering evidence to disprove an element of the plaintiff's case or by demonstrating an ‘absence of evidence to support the non-moving party's case.'” Rakes v. United States, 352 F.Supp.2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 325). If the moving party meets its burden, “[t]he non-moving party bears the burden of placing at least one material fact into dispute.” Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (citing Celotex, 477 U.S. at 325). The record is viewed in favor of the nonmoving party, and reasonable inferences are drawn in the nonmoving party's favor. See Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 417 (1st Cir. 2017) (citing Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015)).

B. Factual Background^[3]

Since 1987, Plaintiff, a Black woman, has resided with her parents at 928 Berkshire Avenue, a single-family home located in Indian Orchard and owned by Plaintiff's father (Dkt. No. 187 at ¶¶ 2, 3; Dkt. No. 189 at ¶¶ 1, 10-11). In lieu of paying rent, Plaintiff provides caretaking services for the property (Dkt. No. 187 at ¶¶ 4-5).

According to Plaintiff, she and her family have been the victims of numerous instances of severe racial harassment, which Plaintiff attributes to “the tenants” of a neighboring property,

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934 Berkshire Avenue, or gang associates of such tenants (Dkt. No. 187 at ¶¶ 6-8; Dkt. No. 189 at ¶ 2). Plaintiff details a number of those incidents in her amended complaint, which have included having human and dog feces, banana peels, dead rats, garbage, and eggs thrown onto the property between 2015 and 2017 (Dkt. No. 6). In her deposition, Plaintiff identified the individuals who have been harassing her as Jaime Rivera, Jaime Alvarado, and Jackie Martinez, along with unidentified members of Jaime Rivera's gang (Dkt. No. 187 at ¶ 11).^[4] According to Plaintiff's testimony, however, the only incident identified in her amended complaint in which Jackie Martinez was involved concerned the releasing of a large pit bull on her, which Plaintiff alleges occurred on February 5, 2016 (Dkt. No. 187 at ¶ 20; Dkt. No. 6 at 3).

At all times relevant to the complaint, the property on which the...