Tinsley v. Kemp

• Decision Date: 03 January 1990
• Docket Number: No. 89-0023-CV-W-1.,89-0023-CV-W-1.
• Citation: 750 F. Supp. 1001
• Parties: Doletha TINSLEY, et al., Plaintiffs, v. Jack L. KEMP, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

750 F. Supp. 1001

Doletha TINSLEY, et al., Plaintiffs, v. Jack L. KEMP, et al., Defendants.

No. 89-0023-CV-W-1.

United States District Court, W.D. Missouri, W.D.

January 3, 1990.

Julie Levin, Kelly P. Finn, Legal Aid of Western Missouri, Kansas City, Mo., for plaintiffs.

John L. Williams and Taylor Fields, Fields, Brown, Williams & Clark, Kansas City, Mo., Vernon Poschel, Asst. U.S. Atty., Kansas City, Mo., for defendants.

ORDER

WHIPPLE, District Judge.

In this action, plaintiffs seek declaratory and injunctive relief in equity, but not damages. Five motions are pending:

1. Plaintiffs filed a motion on January 31, 1989, seeking an order determining that this matter should be maintained as a class action. Defendants Mike Fisher and Housing Authority of Kansas City filed a memorandum in opposition on April 17, 1989. Plaintiffs filed a reply on April 27, 1989. The motion will be granted, and a class will be certified to seek equitable relief.

2. Defendants United States Department of Housing and Urban Development and Jack L. Kemp, secretary of the department (hereinafter, those two defendants collectively are "HUD") filed a motion on May 23, 1989, to dismiss this action. Plaintiffs filed suggestions in opposition on June 28, 1989, and HUD filed a reply on July 27, 1989. Plaintiffs submitted supplemental suggestions in opposition on October 19, 1989. The motion will be granted in part and denied in part.

3. HUD filed, on October 30, 1989, a motion to strike plaintiffs' supplemental suggestions or, in the alternative, for leave to file a limited response. Plaintiffs filed suggestions in opposition to the motion on November 1, 1989. The motion will be denied in part, in that the supplemental suggestions will not be stricken. However, the motion will be granted in part in that HUD's limited response will be considered.

4. HUD filed a motion on August 8, 1989, to stay discovery pending a ruling on the motion to dismiss. Plaintiffs filed their opposition on August 29, 1989. HUD replied on September 8, 1989. The motion will be denied as moot.

5. Plaintiffs filed a motion on December 6, 1989, to compel production of documents. HUD filed opposition on December 21, 1989. The motion will be granted.

I. STATEMENT OF THE CASE

Five plaintiffs are residents of T.B. Watkins Homes ("Watkins Homes"), a public housing project in Kansas City, Missouri. The sixth plaintiff is a homeless applicant who has been on a waiting list for public housing since April 1988.

Defendants Housing Authority of Kansas City, Missouri, and Michael Fisher, the authority's executive director (hereinafter, these two defendants collectively are "HAKC"), operate Watkins Homes. HAKC is a public housing authority which administers federally subsidized and assisted low-rent housing programs as authorized by the United States Housing Act of 1937 ("Housing Act"). HUD is a federal agency with statutory obligations, duties, and responsibilities under the Housing Act. HUD also is responsible for implementing and enforcing regulations promulgated to effectuate statutory responsibilities.

Plaintiffs allege essentially that defendants are permitting deterioration of residential units at the Watkins Homes which, in effect, is illegal demolition of the units. This passive sort of de facto demolition results in fewer units available to applicants, and a lower quality housing project for the residents, plaintiffs allege. Plaintiffs primarily seek declaratory judgment and an injunction to prevent the alleged de facto demolition. They seek no money damages.

Plaintiffs seek relief under a variety of theories. Their claims:

(1) Violation of 42 U.S.C. § 1983 by HAKC (constitutional rights claim),

(2) Violation of Housing Act provisions by HUD (implied cause of action under Section 18(d) of the Housing Act 42 U.S.C. § 1437p and 24 C.F.R. Part 970),

(3) Commission of an administrative legal wrong by HUD for which there is redress under 5 U.S.C. § 702 (Administrative Procedures Act, or "APA", claim),

(4) Breach of contract by HUD and HAKC (third-party beneficiary claim),

(5) Discriminatory impact of violations of Housing Act by HAKC and HUD (Title VIII claim under Fair Housing Act of 1968 42 U.S.C. § 3604(a) and 3608(d)),

(6) Facially discriminatory impact of violations of Housing Act by HUD (another Title VIII claim), and

(7) Discrimination against intended beneficiaries by HAKC and HUD for failure to maintain decent housing (Title VI claim 42 U.S.C. § 2000d et seq.).

II. FACTS¹

As a public housing authority ("PHA"), HAKC has an annual contributions contract ("ACC") with HUD to receive subsidizing funds for operation and maintenance of low-income housing under the Housing Act. 42 U.S.C. §§ 1437c and 1437g. The PHA is subject to extensive regulation by HUD in numerous areas, including demolition and disposition of public housing units or projects. Procedures, limits and requirements for demolition and disposition are set in 42 U.S.C. § 1437p.

Watkins Homes had 348 residential units in 1983 when HAKC asked to demolish 48 units because of delay in making relatively simple repairs. Demolition would be less expensive than the rehabilitation cost of $4,500 per unit. HUD approved the demolition, reducing the number of units to 300. In 1984 HAKC asked to demolish 12 more units, due to poor maintenance and substandard conditions. With HUD's permission, the number of units dropped to 288.

In the summer of 1988, HUD assigned a staff member to be officed full-time at the HAKC central office to oversee and monitor HAKC's management and operation of public housing projects. HUD did not force HAKC to remedy defects and rehabilitate vacant units, and did not grant funds for rehabilitation at Watkins Homes.

Of the 288 remaining units, 118 are vacant. In May 1988, only 35 units were vacant. The vacant units are unsecured, uninhabitable, dilapidated, and open to trespassers, arsonists and drug dealers. The vermin-infested units are full of trash. Many units are stripped of window frames, appliances, cabinets and counter tops. The common areas have broken windows, and are full of trash, human waste, and broken glass.

Like 99% of Watkins Homes residents, all the plaintiffs are nonwhite. Five of the plaintiffs, as residents, suffer from their exposure to the deteriorated conditions of the vacant units. More than 170 persons reside in the occupied units at Watkins Homes.

The sixth plaintiff is one of the 1,050 persons waiting to enter public housing. More nonwhite persons than white persons are waiting. They are living in substandard and/or overcrowded conditions, are facing eviction for inability to pay rent, or are homeless. The sixth plaintiff is homeless and has four children. She has lived in various shelters, and currently is living with ten other persons in a three-bedroom house. She has applied for a unit at Watkins Homes.

Despite the alleged de facto demolition of the 118 vacant units, HAKC has not consulted with tenants regarding the future of Watkins Homes so it has not developed post-demolition plans after consultation with tenants. HAKC further has not provided adequate relocation assistance, and has not developed a relocation plan for displaced tenants.

III. THE MOTIONS

A. Class Action

1. Arguments

Plaintiffs seek certification of a class action pursuant to Rule 23(b)(2), Fed. R.Civ.P. The class would include all residents of Watkins Homes, and all applicants who have been put on a waiting list for HAKC-operated public housing. They claim to have the four class characteristics required in Rule 23(a). They also contend the defendants acted on grounds generally applicable to the class, and that injunctive and declarative relief is appropriate, so a class should be certified under Rule 23(b)(2).

Defendant HAKC opposes certification on four grounds: (1) The relief, as a practical matter, would benefit proposed class members anyway, so certification is unnecessary. (2) The boundaries of the putative class have been defined inadequately. (3) Plaintiffs have not satisfied the characteristics required by Rule 23(a). (4) No sufficient nexus has been shown between the class and liability, i.e., the proposed class has not been limited to those harmed by defendants.

Plaintiffs replied that Rule 23(b)(2) specifically provides for class certification where injunctive and declaratory relief is sought. They raise four reasons why a class is necessary here. First, if a class is declared, plaintiffs argue, their claims could avoid premature mootness. (For instance, defendants merely could provide decent housing only for the named plaintiffs, thereby making their claims moot before the issues are resolved.) Thus the relief sought for other aggrieved parties could be obtained without litigating separately for each individual resident or applicant. Second, class status protects absent parties. Third, all class members subsequently can enforce relief. Finally, broader class issues can be considered in formulating class-wide relief. Plaintiffs further argue that the class definition is not too broad, that plaintiffs have standing, and that they have satisfied the Rule 23(a) requirements.

2. Discussion

Under Rule 23(a), parties may be representatives to sue or be sued of behalf of a class if:

(1) The class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Under Rule 23(b)(2), a class action may be maintained if the requirements listed above are met and if:

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate relief or corresponding declaratory relief with respect to the class as a whole;

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a. Rule 23(a) Qualifica...