Tedder v. Housing Authority of Paducah

• Decision Date: 18 March 1983
• Docket Number: Civ. A. No. 82-0162-P.
• Citation: 574 F. Supp. 240
• Parties: Beth TEDDER, Marsha Davis and Reta Lindsey, et al., Plaintiffs, v. HOUSING AUTHORITY OF PADUCAH, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

574 F. Supp. 240

Beth TEDDER, Marsha Davis and Reta Lindsey, et al., Plaintiffs, v. HOUSING AUTHORITY OF PADUCAH, et al., Defendants.

Civ. A. No. 82-0162-P.

United States District Court, W.D. Kentucky, Paducah Division.

March 18, 1983.

Richard Gladstein, Nicholas Harding, Western Ky. Legal Services, Paducah, Ky., Geneva Parris, Western Ky. Legal Services, Madisonville, Ky., for plaintiffs.

William B. Byrd, Paducah, Ky., for defendants.

MEMORANDUM OPINION

JOHNSTONE, District Judge.

This matter is before the Court on the motion of defendants, the Housing Authority of Paducah (HAP) and Carl Marquess, HAP Executive Director, to dismiss this action for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b) and that the claims stated in the amended complaint are moot. Plaintiffs' motion for class certification pursuant to Rule 23 is also before the Court. The Court will address both motions.

The HAP is a public corporation created pursuant to K.R.S. 80.010, et seq. HAP owns the Paducah Housing Project, which it operates pursuant to a long-term contract with Housing and Urban Development (HUD) for the purpose of providing low-rent housing to families unable to afford adequate and decent housing from the private market. HAP has approximately 1100 apartments subject to occupancy. By the terms of HAP's annual contributions contract with HUD, it receives federal funds to subsidize its provision of low-rent housing and is bound to comply with provisions of the United States Housing Act of 1937 and 1949, 42 U.S.C. § 1401, et seq., as amended 1974, and the regulations promulgated by HUD.

Defendant Marquess is responsible for the administration of HAP in compliance with the laws and regulations governing the admission of tenants and the physical maintenance of that project.

Plaintiffs, five applicants for public housing, seek declaratory, injunctive relief, and damages for safe, sanitary, and decent public housing, as applicants who have been or will be denied public housing because of defendants' admissions, rejection, and vacancy policies, procedures, and practices in violation of the Due Process and Equal Protection guarantees of the Fourteenth Amendment as enforceable under 42 U.S.C. § 1983; the United States Housing Act, as amended 1974, 42 U.S.C. § 1401, et seq.; HUD regulations including 24 C.F.R. § 860.201 et seq., and the terms of the defendants' local policies. Plaintiffs also seek to maintain a class action pursuant to Rule 23 on behalf of all lower-income applicants for safe, sanitary, and decent public housing whose applications have been, are being, or will be denied by the defendants.

The plaintiffs assert jurisdiction under 28 U.S.C. § 1331(a), governing actions arising under the Constitution and laws of the United States; 28 U.S.C. § 1337, governing actions arising under Acts of Congress regulating commerce; 28 U.S.C. §§ 1343(3) and 1343(4), governing actions brought to redress the deprivation of federal rights; and 28 U.S.C. §§ 2201 and 2202, providing declaratory relief for such actions. Plaintiffs further claim that this action is authorized by 42 U.S.C. § 1983, which provides redress for the deprivation under color of state law of rights, privileges, and immunities secured to all citizens and persons within the jurisdiction of the United States.

To fully address the legal issues underlying the factual allegations in the complaint, a statement of the case, abbreviated from the plaintiffs' supporting memoranda follows. For purposes of the motion to dismiss, the allegations of plaintiffs' complaint are taken to be true. Hillard v. Williams, 465 F.2d 1212, 1214 (6th Cir. 1972), cert. denied, 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322 (1972).

I. FACTUAL BACKGROUND

Plaintiffs Beth Tedder, Marsha Davis, Reta Lindsay, Alunda Askew, and Julia Smithson, are all lower-income persons and head of their household with one or more dependent children. Their claim is that, for several years, HAP has engaged in a pattern and practice of maintaining vacancies at its housing projects to await higher-income applicants where lower-income applicants have been and are available, in violation of 42 U.S.C. § 1437d(c)(4)(A) and 24 C.F.R. § 860.205(c)(8). Plaintiffs also allege that during this period they were categorically excluded from public housing by defendants because their sole source of income is entitlements from Aid for Families with Dependent Children (AFDC) and Food Stamps.

According to their individual affidavits, made a part of the complaint, each plaintiff applied for public housing between 1979 and 1981. All were placed on the HAP applicant waiting list, except Askew, and each alleges that she was told that, even though vacancies existed, her income was too low for admittance. In each case, the plaintiffs' sole source of income is entitlements from AFDC and Food Stamps.

The plaintiffs claim that on August 30, 1982, there were approximately fifty vacant apartments administered by HAP. It is plaintiffs' claim that from January 1, 1981, to September 30, 1982, HAP apartments were allowed to remain vacant for a total of roughly 15,870 days, an average of 42 days per unit. At the same time it is alleged that there were approximately 550 families on the HAP waiting list.

Plaintiff Askew alleges that, because she was seventeen at the time of her application, she was advised that she was ineligible because of her age. However, the applicant was not told that she could ask for a hearing if she disagreed with the decision. Although Askew was seventeen at the time, she was responsible for supplying the needs of her family. The plaintiffs claim defendants are neglecting the requirements of constitutional due process, 42 U.S.C. § 1437d(c)(3), and 24 C.F.R. § 860.207, which require HAP to promptly notify any applicant determined to be ineligible for admission of their opportunity for an informal hearing, and any applicant determined to be eligible for admission of the approximate date of occupancy.

With the exception of Reta Lindsay and Marsha Davis, who accepted housing from HAP after this suit was filed, these families have been forced to seek inadequate housing with family, friends, or to apply substantial parts of their income for housing, depriving them and their children of other basic necessities.

By its memoranda in support of its motion to dismiss, HAP admits vacancies existed in its projects prior to the initiation of this action, yet contends this practice complies with the law as set forth in the governing statute, 42 U.S.C. § 1437d(c)(4)(A) which requires:

The establishment of tenant selection criteria designed to assure that, within a reasonable period of time, the project will include families with a broad range of incomes and will avoid concentrations of low income and deprived families with serious problems, but this shall not permit maintenance of vacancies to await higher income tenants where lower income tenants are available.

HAP, in its attempt to balance these goals, admits that until given guidance by the regional HUD deputy director for management, housing division, by letter dated August 19, 1982, it emphasized the former legislative goal of income diversity over the latter mandate of filling vacancies where lower income tenant applicants were available. However, since receipt of the HUD letter, HAP has undertaken an accelerated program to fill all existing vacancies from the applicant waiting list.

Defendants' motion to dismiss, as renewed February 3, 1983, does not challenge plaintiffs' jurisdictional claim, but charges that no private cause of action exists under the United States Housing Act, 42 U.S.C. § 1401, et seq., and accordingly, contends that the amended complaint fails to state a claim upon which relief may be granted pursuant to Rule 12(b) under either the Housing Act or the Civil Rights Act, 42 U.S.C. § 1983. Defendants rely upon the opinion of the United States Court of Appeals for the Fourth Circuit in Perry v. Housing Authority of City of Charleston, 664 F.2d 1210 (4th Cir.1981). In addition defendants state a second grounds for dismissal, urging that plaintiffs' claim is now moot because vacancies are no longer being maintained.

Plaintiffs respond in opposition to defendants' motion to dismiss contending that the defendants have not met their heavy burden to prevail on a motion to dismiss in a civil rights case under 42 U.S.C. § 1983. In addition, it is plaintiffs' position that their federal statutory claims under the Housing Act are cognizable as predicated on § 1983; that they have an implied cause of action under the Housing Act; and may bring this action as the third-party beneficiaries of the annual contributions contract between HUD and the defendants. Plaintiffs also reject the argument of defendants that plaintiffs' claim is moot because HAP has not demonstrated beyond a reasonable expectation that it will no longer maintain vacancies to await higher income tenants when lower income tenants are available.

II. THE CONSTITUTIONAL CLAIM OF THE HAP TENANT APPLICANTS¹

Upon a motion to dismiss, the standard for reviewing the sufficiency of the allegations provides that "... a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Hilliard v. Williams, 465 F.2d 1212, 1214 (6th Cir.1972), citing, Conley v. Gibson, 355 U.S. 41, XX-XXXX-XX, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). This same principle was reiterated by the United States Court of Appeals for the Sixth Circuit with the further admonishment that "... dismissals of complaints under the civil rights statutes are scrutinized with special care." Westlake v. Lucas, 537 F.2d 857, 858-859 (6th Cir.1976). Even where it appears that it may be unlikely for the plaintiff to succeed on the merits, this Court...