Thomas v. City of Dallas, 97-10858

• Decision Date: 11 May 1999
• Docket Number: No. 97-10858,97-10858
• Citation: 175 F.3d 358
• Parties: Iving THOMAS; Barbara Thomas, Plaintiffs-Appellees, v. CITY OF DALLAS; et al., Defendants, Darwin Gaines; Aquilla Allen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 358

175 F.3d 358

Iving THOMAS; Barbara Thomas, Plaintiffs-Appellees, v. CITY OF DALLAS; et al., Defendants, Darwin Gaines; Aquilla Allen, Defendants-Appellants.

No. 97-10858.

United States Court of Appeals, Fifth Circuit.

May 11, 1999.

Michael M. Daniel, Laura Beth Beshara, Dallas, TX, for Plaintiffs-Appellees.

Walter Columbus Davis, III, William Kent McIlyar, Dallas, TX, for Defendants-Appellants.

Appeals from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DUHE and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This claim arises from a bureaucratic snafu. The City of Dallas, by a series of mistakes, demolished a small house after erroneously concluding it was a nuisance. This suit by the property owner ensued. We must decide whether the district court erred in refusing to recognize a defense of absolute immunity to a claim for money damages asserted by an official of the responsible city agency and qualified immunity asserted by one of its employees. We conclude that the invoked defenses are available and reverse and remand.

I

In 1993, Iving and Barbara Thomas purchased a single family home at 4226 Landrum Avenue, Dallas, Texas. The Thomases never resided there but were making repairs and improvements to the house over time. In January 1994, the Code Enforcement Department of the City of Dallas gave Mr. Thomas a notice of violation regarding the detached garage and told Mr. Thomas to repair or demolish the accessory structure within 30 days. Four months later, the code inspector found no repairs or demolition of the garage and issued a citation to Mr. Thomas. The code inspector forwarded the file on the garage to the Urban Rehabilitation Standards Board on June 20, 1994. The URSB is a board of volunteers appointed by the mayor and city council to decide cases about urban nuisance.

The URSB scheduled a hearing on October 4, 1996 regarding the demolition of the garage. Notice was sent to the last known address for Iving Thomas, 4226 Landrum Avenue, Dallas, Texas 75216, but the notice was returned to the URSB as unclaimed. At the hearing, the case was "passed" so that the URSB could later assess the main structure with the accessory structure in one hearing. ¹ A new hearing on the two structures was set for November 1, 1994. In the meantime, on October 6, 1994, Mr. Thomas applied for and received a demolition permit from the city and demolished the garage.

Aquila Allen, the URSB Administrator, sent notice of the scheduled November 1, 1994 URSB hearing to the last known address of Iving Thomas. The notice provided, in pertinent part, the following:

Property located at 4226 Landrum Avenue, Lot(s) 12, Block 5/6083 will be among the properties considered. At this hearing the Administrator will present evidence of the condition of the structure(s). The owner, lessor, occupant or lienholder, will be given the opportunity to present evidence and witnesses if so desired.

The notice then listed ten actions which the URSB could take with respect to the property; the last action listed was demolition.

In addition to this mailed notice, Allen also published notice of the hearing in the Daily Commercial Record at least five days before the hearing. While § 27-13 of the Dallas City Code permits notice by publication, it does so only after both written notice and a diligent search to ascertain the party's correct address have failed. The code also provides optional personal notice, which was not attempted in this case.

On November 1, 1994, the URSB reviewed the Thomases' case, even though there was no mail return receipt on file indicating that the Thomases had been given notice by mail. Darwin Gaines, member and chairman of the URSB, presided over the hearing and voted to demolish the Thomases' house on the ground that it was an urban nuisance. The URSB issued a demolition order for the entire dwelling at 4226 Landrum Avenue and a notice was sent to the Thomases' same address. The demolition order was also published in the Dallas Commercial Record. On November 11, 1994, a certified mail return receipt was finally received by the URSB, indicating that the Thomases did not receive notice of the scheduled November 1 hearing until a week after the hearing was held.

Nonetheless, the city proceeded with its November 1 decision to demolish the structure. Notice of the demolition order was sent by certified mail, but was returned to the URSB as "return to sender, attempted not known." Eleven months later, on October 25, 1995, the city demolished the Thomases' house and sent them a bill for $1379.32.

The Thomases filed suit asserting claims that Gaines and Allen violated their right to due process under the Fourteenth Amendment by failing to provide proper notice of the URSB hearings concerning the demolition of their house. ² The district court granted the Thomases' summary judgment motion, specifically denying the absolute and qualified immunity defenses raised by Gaines and Allen.

Gaines and Allen appeal. Under the collateral order doctrine, we have jurisdiction over this interlocutory appeal to review the district court's denial of immunity to Gaines and Allen. See Cantu v. Rocha, 77 F.3d 795, 802-03 (5th Cir.1996)(citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

II

We review a summary judgment de novo, applying the same standards as used by the district court, reviewing the facts and drawing inferences in favor of the nonmoving party. See Elliott v. Lynn, 38 F.3d 188 (5th Cir.1994). Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "To win summary judgment, the movant must show that the evidence would not permit the nonmovant to carry its burden of proof at trial." Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir.1998).

III

Gaines claims absolute immunity, alternatively qualified immunity, contending the URSB performs a quasi-judicial function. The Thomases do not say otherwise for orders to demolish houses. Rather, they contend that Gaines voted to demolish their house when there was no evidence in the URSB file of notice to the Thomases of such a hearing and that act should not be shielded. This argument fails to grasp the reach of absolute immunity. As we will explain, if the job enjoys absolute immunity, the inquiry into liability narrows to whether the official was about his work when engaged in the accused conduct. Failure in a given case to apply the rules correctly does not leave an official unsheltered from liability--indeed, that is the protection afforded by absolute immunity.

An official who seeks absolute immunity has the burden of showing that public policy justifies the extension of the doctrine of judicial immunity. See Butz v. Economou, 438 U.S. 478, 506-07, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). To assess whether absolute immunity should be extended, we must examine the character of the officer's duties and the relationship to the parties. See Mylett v. Mullican, 992 F.2d 1347, 1352 (5th Cir.1993)(citing Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)). Unfortunately, our inquiry is less than exact. We consider the following factors:

(1) the need to assure that the individual can perform his functions without harassment or intimidation;

(2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct;

(3) insulation from political influence;

(4) the importance of precedent;

(5) the adversarial nature of the process;

(6) the correctability of the error on appeal.

Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (citing Butz, 438 U.S. at 512, 98 S.Ct. 2894).

Absolute immunity extends to agency or board officials performing functions that are quasi-judicial in nature. See O'Neal v. Mississippi Bd. of Nursing, 113 F.3d 62, 65 (5th Cir.1997); Johnson v. Kegans, 870 F.2d 992, 996 (5th Cir.1989). We are to use a "functional approach" that looks to "the nature of the function performed, not the identity of the actor who performed it." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The six enumerated factors, characteristics of the judicial processes, serve to assist in the inquiry into function. See Cleavinger, 474 U.S. at 202, 106 S.Ct. 496. Here, it appears that at least five of the six factors favor absolute immunity.

First, the URSB is charged with the inherently controversial task of demolishing private residences. It is comprised of volunteer members serving in unpaid, two-year positions. This is significant because harassing litigation takes a heavy toll when the task depends on volunteers from the community.

Second, the URSB proceedings have sufficient procedural safeguards. The City Code provides that property owners have a right: to receive notice of URSB hearings, see Dallas, Tex., Rev. City Code ch. 27, art. II, § 27-13(b); to present and cross-examine witnesses, see id. § 27-9(c); to request that a case be reheard, see id. § 27-14(a), (b); and to appeal an adverse decision to state district court, see id. § 27-9(e).

Third, the members of the URSB are not elected, but appointed by members of the city council. To this extent, they are shielded from direct political influence.

Fourth, although the URSB's decisions are not guided by URSB precedent, the board is bound by specific standards for evaluating structures set in the Dallas City Code. This factor does not meaningfully point in one direction or the other.

Fifth, hearings before the URSB are adversarial. Parties are free to present evidence and testimony, see id. § 27-9(c); witnesses must testify under oath, see id. § 27-9(a); and parties have the right to cross-examine...