Swann v. City of Dallas, Civil A. No. 3-95-CV-0033-BC.

• Decision Date: 12 February 1996
• Docket Number: Civil A. No. 3-95-CV-0033-BC.
• Citation: 922 F. Supp. 1184
• Parties: Christina SWANN, Plaintiff, v. CITY OF DALLAS, Urban Rehabilitation Standards Board, Aquila Allen, Vitale Rivera, Darwin Gaines, Helen Swint, Victor Bonilla, Georgeann Owen, Charles Smith, Ramiro Lopez, Leila Thompson, Defendants.
• Court: U.S. District Court — Northern District of Texas

922 F. Supp. 1184

Christina SWANN, Plaintiff, v. CITY OF DALLAS, Urban Rehabilitation Standards Board, Aquila Allen, Vitale Rivera, Darwin Gaines, Helen Swint, Victor Bonilla, Georgeann Owen, Charles Smith, Ramiro Lopez, Leila Thompson, Defendants.

Civil A. No. 3-95-CV-0033-BC.

United States District Court, N.D. Texas, Dallas Division.

February 12, 1996.

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Liza Farrow-Gillespie, Law Office of Liza Farrow-Gillespie, Dallas, TX, for Christina Swann.

Christina Swann, Dallas, TX, pro se.

Walter C. Davis, III, Mark Robert Benavides, Dallas City Attorney's Office, Dallas, TX, for City of Dallas, A.C. Gonzalez, Elizabeth Fernandez, John Does, 1-10, Jane Does, 1-10, Urban Rehabilitation Standards Board of City of Dallas, Aquila Allen, Vitale Rivera, Darwin Gaines, Helen Swint, Victor Bonilla, Georgeann Owen, Charles Smith, Joe Burkleo, Ramiro Lopez, Leila Thompson, Gavino Sotello.

Louis J. Weber, Melton Weber Whaley Letteer & Mock, Dallas, TX, pro se.

MEMORANDUM OPINION AND ORDER

BOYLE, United States Magistrate Judge.

Before the Court are Plaintiff's Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment, filed July 7, 1994 and July 21, 1995, respectively. For the reasons that follow, the court ORDERS that Plaintiff's Motion for Partial Summary Judgment be GRANTED in part and DENIED in part, and Defendants' Motion for Summary Judgment be GRANTED in part and DENIED in part, as set forth below.

I. Factual and Procedural Background¹

Plaintiff Christina Swann ("Swann"), is the owner of an eight-unit apartment building located at 917 N. Haskell Street, Dallas, Texas. Her struggles with the City of Dallas over the condition of this building underlie the present action. The details of Swann's interactions with the City regarding her property provide a helpful starting point for this summary judgment analysis.

Since May 1991, Swann's apartment building has been the subject of some scrutiny by the City of Dallas' Urban Rehabilitation Standards Board ("URSB"). After hearings in December, 1991, and September, 1992, Swann was ordered by the URSB to make certain repairs to her building to meet Dallas City Code standards. On August 2, 1994, believing Swann had failed to meet her obligation, the URSB held its third hearing regarding the state of her property, determined it an urban nuisance, and ordered it vacated and demolished. Swann claims she was not notified of this "demolition hearing" and only learned of the proceeding thirty minutes prior to its commencement. Swann contends she attended the hearing and informed the URSB that she had not received notice of the hearing; nevertheless, the URSB continued the hearing and ordered the demolition.

Thereafter, City Code Enforcement Officers, ostensibly carrying out the URSB's order, in December and January, 1994 inspected the building and placed red placards on each unit stating that the structure was hazardous and occupancy prohibited. The building was also "secured" or boarded up by the code officers. Swann, undaunted, resisted the City's efforts, at every turn, by removing the boards and placards and continuing to maintain rent-paying tenants. After code officers' third inspection and securing of the building on January 6, 1995, Swann filed the instant suit charging the City and certain individuals with violating her civil and constitutional rights.

In her First Amended Complaint she alleges that the City of Dallas, the URSB² and several City officials,³ named below, violated her federal civil rights under Title 42 U.S.C. § 1983 and the U.S. Constitution, conspired to violate her civil rights in violation of 42 U.S.C. § 1985 and deprived her of her property without due process of law. She also claims that the defendants are liable under several Texas state law causes of action, including defamation, negligence, gross negligence and trespass.

Shortly after the suit was filed, both Swann and the defendants filed motions for injunctive relief; the defendants seeking to halt Swann's interference with their efforts to close her building and Swann moving to regain her property. After a hearing on March 8, 1995,⁴ the defendants' motion was denied. Swann's motion was held in abeyance pending appointment of counsel. On June 14, 1995, a hearing was held on Swann's motion after which this court recommended to the district court that her motion be granted. This recommendation was based, in part, upon a finding that Swann had established a likelihood of prevailing on the merits given the city's failure to notify her of the demolition hearing.⁵ On November, 9, 1995, the district court transferred the case to this court, on consent of the parties pursuant to 28 U.S.C. § 636(c).

Both sides now move for summary judgment. By her motion, plaintiff claims to be entitled to summary judgment against the City, the URSB and its members, and Allen for violations of § 1983. Defendants, on the other hand, seek judgment as a matter of law in their motion claiming that Allen, Gaines, Swint, Bonilla, Owen, and Smith are entitled to absolute immunity from personal liability. Further, defendants claim that Allen, Gaines, Swint, Bonilla, Owen, Smith, Lopez, Rivera, and Thompson are shielded from personal liability by the doctrine of qualified immunity. In their motion, defendants also argue that Swann has not been injured by a custom or policy of the City and thus the defendants claim they are entitled to judgment as a matter of law. Finally, defendants contend that they cannot conspire within the meaning of § 1985.

Because summary judgment principles guide this analysis, it is to those standards which the court turns first.

II. Summary Judgment Standards

Summary judgment is appropriate when the pleadings and the evidence show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Crescent Towing & Salvage Co. v. M/V Anax, 40 F.3d 741 (5th Cir.1995). The applicable substantive law identifies those facts that are material. Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir.1991), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and only disputes about those facts will preclude the granting of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. There is a genuine issue of material fact if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Society of Fin. Examiners v. Nat'l. Assn. of Certified Fraud Examiners, Inc., 41 F.3d 223, 226 (5th Cir.1995), cert. denied, ___ U.S. ___, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995), citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990).

The moving party bears the initial burden of showing that there is no genuine issue for trial. Nat'l. Ass'n. of Gov't. Employees v. City Public Service Board of San Antonio, Texas, 40 F.3d 698, 712 (5th Cir. 1994). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there was a genuine issue for trial. Elliott v. Lynn, 38 F.3d 188, 190 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1976, 131 L.Ed.2d 865 (1995), citing Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. This burden is not satisfied with "some metaphysical doubt as to the material facts," (Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)), by "conclusory allegations" (Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)), by "unsubstantiated assertions", (Hopper v. Frank, 16 F.3d 92 (5th Cir.1994)), or by only a "scintilla" of evidence. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir.1994). The court must consider all evidence in the light most favorable to the non-moving party and resolve reasonable inferences in favor of the non-moving party. Society of Fin. Examiners, 41 F.3d at 226, citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Having reviewed the applicable law, the Court now turns to the motions at hand. Defendants' motion, because it involves the greater number of issues, will be taken up first. However, there is some overlap between the motions as to the City's and Allen's liability. To avoid confusion, those issues will be addressed in the first portion of this opinion relating to the defendants' motion.

III. Defendants' Motion for Summary Judgment

Prior to deciding if the defendants are liable or not as a matter of law, it must be determined if they are subject to suit in the first instance.

A. Immunity Standards

Defendants Allen, Gaines, Swint, Bonilla, Owen, and Smith are being sued in both their individual and official capacities. A suit against a person in his official capacity is treated as a suit against the governmental entity of which the official is an agent. Kentucky, 473 U.S. at 166, 105 S.Ct. at 3105, 87 L.Ed.2d at 122. In order to establish personal liability of a defendant under § 1983, a plaintiff must show that the official acted under color of state law and deprived an individual of a federal right. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114, 122 (1985). To defend against a suit on personal liability grounds, a defendant may assert the defense of absolute or qualified immunity. Id. Immunity is a threshold issue which, if applicable to the case, acts as a bar to a court's ability to hear the plaintiff's claim. Sutton v. United States, 819 F.2d 1289, 1299 (5th Cir.1987). Absolute immunity protects certain officials from personal liability even when his exercise of authority was "flawed by the commission of grave procedural errors," or when his decision was motivated by prejudice, bias, or greed. Stump v....