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Escalera v. New York City Housing Authority

decided: April 29, 1970.

PEDRO ESCALERA AND ROSE ESCALERA, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
NEW YORK CITY HOUSING AUTHORITY, IRA S. ROBBINS, INDIVIDUALLY AND AS A MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, SIMEON GOLAR, INDIVIDUALLY AND AS A MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, AND ALBERT A. WALSH, INDIVIDUALLY AND AS A MEMBER AND CHAIRMAN OF THE NEW YORK CITY HOUSING AUTHORITY, DEFENDANTS-APPELLEES. ROSE LEE ROLLE, ON BEHALF OF HERSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFF-APPELLANT, V. NEW YORK CITY HOUSING AUTHORITY, IRA S. ROBBINS, INDIVIDUALLY AND AS A MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, SIMEON GOLAR, INDIVIDUALLY AND AS A MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, AND ALBERT A. WALSH, INDIVIDUALLY AND AS A MEMBER AND CHAIRMAN OF THE NEW YORK CITY HOUSING AUTHORITY, DEFENDANTS-APPELLEES. WALTER LOCKMAN AND VIOLA LOCKMAN, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, V. NEW YORK CITY HOUSING AUTHORITY AND WILLIAM WALSH, IRA S. ROBBINS AND SIMEON GOLAR, INDIVIDUALLY AND IN THEIR CAPACITIES AS A MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, DEFENDANTS-APPELLEES. CLARENCE HUMPHREY, PHYLLIS HUMPHREY, AND FANNIE HAYWOOD, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, V. NEW YORK CITY HOUSING AUTHORITY, IRA S. ROBBINS, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, AND FRANCIS V. MADIGAN, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, DEFENDANTS-APPELLEES.



Medina, Waterman and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge.

Appellants are tenants in New York City public housing projects. They brought four suits in the United States District Court for the Southern District of New York against the New York City Housing Authority [hereinafter cited as "HA"] and certain individuals as officers of the HA, in the form of class actions on behalf of themselves and all tenants similarly situated. The complaints invoked jurisdiction under the Civil Rights Act, 28 U.S.C. § 1343(3) (1962), and alleged the deprivation of appellants' right to due process secured by the Fourteenth Amendment to the Constitution and of their rights under the United States Housing Act of 1937, 42 U.S.C. § 1401 et seq. (1962). They sought injunctive and declaratory relief against certain alleged practices of the HA, 28 U.S.C. §§ 2201, 2202 (1962), 42 U.S.C. § 1983 (1970), and in two instances (Haywood and Lockman) a money judgment for additional rents which had been paid.

Appellants sought a preliminary injunction by filing an order to show cause. Defendant then moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the actions for, inter alia, failure to state a claim upon which relief could be granted, lack of jurisdiction, lack of substantial federal question, and failure to exhaust administrative remedies, and because the federal courts should abstain from considering these actions pending a determination by New York state courts in the first instance

After the parties submitted affidavits, argument on the motions was heard before District Judge Sylvester J. Ryan. Thereafter by an opinion of October 31, 1968 (67 Civ. 4236, 4306, 4307, 4414 S.D.N.Y.), and judgment of the next day, Judge Ryan granted defendants' motion, and dismissed the actions on the merits. We find error in the dismissal of these actions and remand to the district court to consider appellants' application for preliminary relief and to hold a trial on the merits.

The instant class actions challenge the constitutionality of the procedures used by the HA in three different types of actions: (1) termination of tenancy on the ground of non-desirability; (2) termination of tenancy for violation of HA rules and regulations; and (3) assessment of "additional rent" charges under the HA lease for undesirable acts by tenants. The HA, a corporate governmental agency financed by federal, state and city funds, administers the largest public housing program in the country, housing more than 144,000 families.

I.

Since the complaints were dismissed at the pleadings stage on motions to dismiss, we must accept the allegations in appellants' complaints and supporting affidavits as true. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172, 87 S. Ct. 1526, 18 L. Ed. 2d 704 (1967). An action, especially under the Civil Rights Act, should not be dismissed at the pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of the facts, which could be proved in support of their claims. Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Barnes v. Merritt, 376 F.2d 8 (5 Cir. 1967); York v. Story, 324 F.2d 450, 453 (9 Cir. 1963), cert. denied, 376 U.S. 939, 84 S. Ct. 794, 11 L. Ed. 2d 659 (1964); 2A Moore, Federal Practice para. 12.08, at 2271-74 (1968). Considered in this light, the challenge to the procedures of the HA is as follows.

A. Termination for Non-desirability.

Tenants in HA projects are required to sign month-to-month automatically renewable leases which can be terminated at the end of any month by either party upon the giving of one month's notice. Leases are terminated by the giving of one month's notice if the tenant is found to be non-desirable.*fn1

If a tenant's undesirable acts persist to the point where the project manager decides he should recommend the termination of the tenancy on the ground of non-desirability, the manager has a meeting with the tenant at which he informs the tenant of his proposed recommendation, reviews with the tenant the information in the tenant's folder (which contains the entire history of the tenancy), and discusses the undesirable activity in question. The tenant is given a chance to explain his activity.

If after the meeting the project manager still wishes to recommend termination for non-desirability, the tenant is notified that he may submit a written statement to be sent with the project manager's recommendation and the tenant's folder to the HA Tenant Review Board [hereinafter cited "TRB"].

The TRB consists of eight officers of the HA. They consider the tenant's folder and the project manager's recommendation, and if they make a preliminary determination of the tenant's non-desirability, they inform the tenant in writing that they are "considering a recommendation" of termination, that he may appear before the TRB to tell his side of the case if he requests an appearance in 10 days, and that if he so requests an appearance he will be informed of the nature of the conduct under consideration. If the tenant fails to request an appearance within 10 days, the preliminary determination of non-desirability is made final by the TRB Chairman.

If the tenant makes a timely request for an appearance, he is sent a form letter telling him the time and place of the scheduled hearing, the general definition of a non-desirable tenant (as set out in footnote 1, supra), a short, often one-sentence, statement of the nature of the particular non-desirable conduct under consideration,*fn2 and the fact that he may bring any person to help represent him at the hearing.

A panel of two or more, usually three, of the TRB members is present at the hearing. The HA ordinarily presents no witnesses, but rather has a panel member read a summary of the entries in the tenant's folder. The tenant or his representative is permitted to comment about the entries or question witnesses in that regard. The tenant is generally not permitted to see the contents of the folder, the names of those who complained of his non-desirable activity, or the summary of the entries.*fn3 The rules and regulations governing the TRB and its panels in non-desirability cases, set out in the TRB "Handbook" are not made available to the tenant, even upon request. No transcript of the hearing is maintained.

Despite the summary notification to the tenant prior to hearing of the conduct under consideration, the panel decides whether the tenant is non-desirable on the basis of the tenant's entire folder;*fn4 thus the decision may be based in whole or in part on entries in the folder although the tenant received no notification prior to the hearing that the TRB was considering these entries, or indeed the decision may rest in some part on items in the folder about which the tenant is not notified even at the hearing.

If the panel decides that the tenant is non-desirable, the Chairman of the TRB notifies the tenant that the panel has determined that the tenant is ineligible. No findings or reasons grounding the panel's determination are released. Thereafter the HA gives the tenant the required one month's notice under lease to terminate the tenancy, and notifies the tenant that he should vacate. If the tenant does not vacate, a holdover proceeding is commenced in the New York City Civil Court. The only issue in such a proceeding is the validity of the notice to terminate under the lease, and the determination of non-desirability cannot be put in question. See New York City Housing Authority v. Gantt, 57 Misc.2d 447, 292 N.Y.S.2d 759 (Civ.Ct. N.Y.C.1967); New York City Housing Authority v. Russ, 1 Misc.2d 170, 134 N.Y.S.2d 812 (App.T.1954); cf. Housing Authority of City of Durham v. Thorpe, 267 N.C. 431, 148 S.E.2d 290 (1966), judgment vacated on other grounds, 386 U.S. 670, 87 S. Ct. 1244, 18 L. Ed. 2d 394 (1967). Levy & Weintraub, Termination of Public Housing Tenancies, N.Y.L.J. Dec. 11, 1968, p. 4, cols. 1-4.

The facts as to the instant plaintiffs may be quickly summarized. Proceedings were begun against the Rolles because of the alleged anti-social acts (such as statutory rape) of their son Fred, and against the Humphreys because Mr. Humphrey had been arrested on a narcotics charge several miles from the project. Both requested hearings. Counsel for Rolle demanded a variety of procedural safeguards sought in the present action, such as advance notice of the complete charge, a transcript of the hearing, confrontation and cross-examination of witnesses, an impartial hearing examiner, etc. Although the panel permitted Rolle's counsel to inspect the folder, it did not grant the other requests and Rolle refused to go forward with the hearing. Any further action by the HA with respect to Rolle was voluntarily postponed pending the outcome of this litigation. The Humphreys went through with the hearing although they were not permitted to inspect the folder, and were found to be non-desirable, and were given notice of termination and to vacate. No holdover action was brought due to the intervention of this action.

As to the procedures for termination on the ground of non-desirability, the appellants seek the following relief: (1) an injunction against evictions on this ground unless the following safeguards are afforded in connection with the hearing: (a) written notice prior to the hearing of all the grounds to be relied on in the decision; (b) notice of the rules and regulations governing the TRB panel at the hearing; (c) inspection of the tenant folder; (d) exclusion of items about which advance notice was not given; (e) confrontation and cross-examination of witnesses; (f) exclusion of hearsay items; (g) right to compel attendance of witnesses; (h) the keeping of a written record of the hearing; (i) impartial hearing examiner; (j) written decision with findings of facts and reasons; and (k) access to prior decisions as precedent; (2) an injunction against using a lease which permits the HA to evict simply by giving one month's notice and thus which permits the HA to evict without the above safeguards; (3) an injunction against the failure of the HA to negotiate new leases which provide safeguards which are constitutionally required; (4) a declaratory judgment that the present procedures are constitutionally deficient; and (5) an injunction against the termination of tenancies on grounds not set out in the lease or otherwise made known and which are too vague.

B. Termination for Breach of Rules and Regulations.

Tenants are required to sign the "Tenant Rules and Regulations" upon the execution of their lease agreements. This document is ...


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