The opinion of the court was delivered by: METZNER
This is a motion to dismiss the complaint pursuant to Rule 12(b), Fed. R. Civ. P., for (1) failure to state a claim upon which relief may be granted, and (2) lack of subject matter jurisdiction.
Plaintiffs are tenants in New York City public housing projects. They have brought this suit as a class action on behalf of themselves and others similarly situated against the New York City Housing Authority (HA) and various individuals. Jurisdiction is invoked under the Civil Rights Act, 28 U.S.C. § 1343(3), and 28 U.S.C. § 1331(a). Plaintiffs seek injunctive and declaratory relief against the defendants pursuant to 28 U.S.C. § 2201 et seq., and 42 U.S.C. § 1983.
The complaint challenges the substantive criteria for, and procedures followed in, HA proceedings to terminate plaintiffs' leases. It is claimed that each plaintiff faces eviction as a nondesirable tenant solely and exclusively because of the misdeeds of his adult child, who does not reside in the parental home. As a result of these proceedings, plaintiffs allege a deprivation of their constitutional rights and of their rights under the United States Housing Act of 1937, 42 U.S.C. § 1401 et seq. (Housing Act).
I see no reason to permit the prosecution of this action as a class action. Adequate remedy is afforded these plaintiffs suing in their individual capacities. As to other tenants who may in the future encounter the claimed unconstitutional action by the defendants, the court can properly assume that an agency of government will not persist in taking actions which violate the rights of the tenants. Vulcan Society v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973). The application by Juan and Virgenmina Martinez to intervene pursuant to Fed. R. Civ. P. 24(b) (2) is granted. The facts in their claim are similar to those advanced by the plaintiffs here.
Plaintiff Mildred Brown has resided in the East River Houses, which is operated by the HA, since 1953. Separated from her husband since 1968, she currently resides there with a 24 year old daughter and a grandchild. A son, born on August 3, 1950, also lived in the home until July 1969 when plaintiff requested him to leave her household because of his heroin addiction. Thereafter, on July 28, 1970, plaintiff petitioned to have her son civilly committed to the custody of the New York State Narcotic Addiction Control Commission, where he remained as an inpatient for nine months. Upon his release in May 1971, plaintiff's son did not return to her home.
On September 14, 1972, Mrs. Brown received a Specification of Charges accusing her of nondesirability because her 22 year old son, who had not lived with her for three years, had been arrested for engaging in narcotics and gambling activities on the project premises. Three separate hearings were then held on this nondesirability allegation at which plaintiff was not represented by counsel. These proceedings comported with the safeguards set forth in Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970), and the consent decree thereafter entered in the district court disposing of the litigation. On January 17, 1973, the defendant Lee, a HA hearing officer, ruled that plaintiff's tenancy should be terminated because of her son's actions on HA premises. On January 23, 1973, plaintiff, still unrepresented by counsel, appealed to the HA. On February 1, 1973, her appeal was denied and she was found "ineligible for continued occupancy on the ground of Non-Desirability." Court proceedings have not been initiated to evict plaintiff from the premises.
Plaintiffs Joseph and Ernestine Tyson have resided in St. Nicholas Houses, another HA project, since 1954. Their son, now 23 years old, has not resided in the family home since May 1970. At the time this suit was filed, he was serving a three-year sentence in the New York state correctional facility. He was scheduled for release from prison in August 1973.
On July 2, 1970, the son participated in an attempted robbery on the premises of St. Nicholas Houses during which a tenant was shot. After their son was convicted for this crime and sentenced to a prison term, plaintiffs were advised by defendant Colbert, who is the manager of their project, that he was recommending to the HA that they be evicted because of the criminal conduct of their son.
On February 24, 1972, a hearing, again pursuant to Escalera, was held before defendant Lee. No evidence was adduced linking the Tysons with the unlawful conduct of their son. Nonetheless, on May 1, 1972, plaintiffs were found undesirable because of their son's criminal activity at the project. On November 20, 1972, plaintiffs' appeal was denied by the HA, and they were found "ineligible for continued occupancy on the ground of non-desirability." Court proceedings have not been initiated to evict plaintiffs from their apartment.
Plaintiffs Juan and Virgenmina Martinez have been tenants in HA projects for over ten years and have resided at Douglass Houses since 1965. The Martinezes have six children, all of whom reside with them except a married 20 year old daughter and a married 19 year old son. The son has not lived with his parents since February 1972 when plaintiffs asked him to leave the family home. Thereafter on May 15, 1972, he was arrested for a robbery occurring outside of the project premises, for which he was later sentenced to nine months in prison.
On January 2, 1973, plaintiffs received a Specification of Charges charging them with "non-desirability" because their son had engaged in criminal conduct off the project premises. A hearing, pursuant to Escalera, was then held on January 22, 1973, at which the only evidence introduced by the HA was the criminal court record relating to plaintiffs' son's involvement in the robbery. The Martinezes introduced testimony that their son had not been living in their home since February 1972, and that they had not seen him since that time. Nonetheless, the hearing officer recommended that the plaintiffs' tenancy be terminated because of the criminal conduct of their son. On April 11, 1973, the Martinez' appeal to the HA was denied and they were found "ineligible for continued occupancy on the ground of non-desirability." Court proceedings have not been initiated to evict plaintiffs from their apartment.
The instant action is concerned primarily with a substantive attack on the nondesirability regulation. Plaintiffs claim that constitutional protections prevent the HA from terminating their leases on the grounds of nondesirability simply because their adult children, not residing in their apartments, have committed criminal acts.
The threshold question we must consider is whether the plaintiffs are barred by res judicata from litigating this suit on the basis of a consent judgment entered on March 25, 1971 in Escalera v. New York City Housing Authority, 67 Civ. 4307. That judgment followed the Second Circuit's decision in Escalera v. New York City Housing Authority, supra, which reversed a dismissal of several consolidated class action suits brought by tenants in New York City public housing projects against the HA. The plaintiffs here were residents of HA projects at the time the consent judgment was entered and, as members of the class, would be bound by that judgment. Fed. R. Civ. P. 23.
These suits challenged the constitutionality of the procedures used by the HA (1) for terminating tenancies on the grounds of nondesirability, (2) for terminating tenancies for violation of HA rules and regulations, and (3) for assessing "additional rent" charges. 425 F.2d at 857. At page 865, the court said, "the only issues here are whether certain HA procedures pass muster under the due process clause of the Fourteenth Amendment."
Finally, the court stated:
"We express no opinion on the validity of the HA's substantive grounds for taking the three types of actions in this case. The substantive questions are not in issue." 425 F.2d at 867, n. 15. (Emphasis added.)
One of the consolidated cases embraced by the Escalera decree was Rolle v. New York City Housing Authority, 67 Civ. 4306, which challenged not only the procedures used by the HA in terminating tenancies for nondesirability, but also sought to enjoin the defendant "from continuing to enforce their policy of terminating tenancies on the basis of substantive ...