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July 29, 1980

ISMAT U. KHAWAJA P. O. Box 31 Buffalo, New York 14201 Plaintiff
GEORGE E. WYATT - individually and as Executive Director, BUFFALO MUNICIPAL HOUSING AUTHORITY; RICHARD J. LEHNER - individually and as Counsel, BUFFALO MUNICIPAL HOUSING AUTHORITY; ALBERT C. LeCASTRE - individually and as Assistant Manager, BUFFALO MUNICIPAL HOUSING AUTHORITY Defendants

The opinion of the court was delivered by: CURTIN

This action arises out of a landlord-tenant dispute between plaintiff tenant and the Buffalo Municipal Housing Authority (BMHA).

I have twice before issued written orders in this dispute. In my order of July 14, 1977, I dismissed the original complaint and gave plaintiff leave to file an amended complaint which clearly set out his claims. I said at that time: "The court finds it difficult to specify exactly what the plaintiff's complaint is."

 The plaintiff did file a timely amended complaint which was the subject of the second court order on January 13, 1978. At that time, I determined that the complaint set out five claims and that four of them survive defendant's motion to dismiss. I also ordered the parties immediately to begin further discovery under the supervision of the Magistrate, in order to focus the fact issues before the court. The parties have returned and filed extensive affidavits. Based upon the additional information brought out in discovery, defendants now petition for summary judgment.

 The test for summary judgment is whether there are any "genuine issues for trial." Rule 56(e). Our Court of Appeals has indicated that this is a strict test. See generally, Martinez v. Rosado, 614 F.2d 829 (2d Cir. 1980). The court is not permitted to draw factual inferences in favor of the moving party. In addition, the movant's papers must be carefully scrutinized, while those of the opposing party are on the whole to be "indulgently regarded." 6 Pt. 2 Moore's Federal Practice, P 56.15(7-8). Applying these standards to the case at bar, I must deny defendants' motion for summary judgment.

 Descriptions of the individual claims are set out in my decision of January 13, 1978 and need not be repeated here in detail.

 The gravamen of plaintiff's first claim, as best the court can tell, is that defendant LeCastre attempted to harass plaintiff by, among other things, intentionally requiring him to pay his rent by the first of the month, when defendant knew plaintiff would not have received his semi-monthly AFDC check by that date. This was allegedly all part of a plan to evict plaintiff and his family because of their national origin. Defendant does not deny knowledge that plaintiff was a recipient of AFDC benefits or that he commenced eviction proceedings against plaintiff. However, he does deny his actions were intended to harass, or motivated by plaintiff's nationality; his only purpose was to enforce the existing lease agreement.

 Summary judgment must be denied here because there are material facts in dispute. For example, plaintiff appears to claim that he was singled out for such enforcement action, while defendant contends that there were 28 similar petitions filed against other tenants. Plaintiff's "Answers to Discovery" dated May 29, 1978 at 3. If plaintiff were to prove that he was treated specially, this would be probative of the issues of intentional harassment as well as malice. Of course, it would not necessarily be determinative of either issue.

 It is true that the precise basis for the equal protection and malicious prosecution arguments remain somewhat obscure. However, plaintiff does maintain that defendant's actions were due "in part" to plaintiff's "national origin" and that defendant's actions were "unreasonable," "arbitrary," "capricious," and part of a "design" to harass, e.g., Plaintiff's Supplemental Affidavit dated May 16, 1979 at 4; Plaintiff's Affidavit in Support of Denial to Motion to Dismiss Complaint dated February 12, 1979 at 5. While these statements do have a conclusory tone, when combined with plaintiff's specific allegations of verbal threats, albeit by other BMHA officials, failure of BMHA to respond to plaintiff's numerous complaints, and being singled out for the eviction proceeding, they are sufficient to require a trial. Martinez, supra at 831.

 Nor can I say that the defendant is entitled to a qualified immunity. Qualified immunity is available depending on the scope of discretion and the responsibilities of the defendant's office. The test is three-fold. The court must weigh (1) the reasonableness of the grounds for the action taken, (2) the good-faith belief of the actor, and (3) whether the action taken was in the course of the actor's official conduct. Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S. Ct. 1683, 1692, 40 L. Ed. 2d 90 (1973). The person putting forward this defense normally has the burden of proof. Reese v. Nelson, 598 F.2d 822, 825 (3d Cir. 1979). In the instant case, the reasonableness of defendant's actions and perhaps his good faith are in issue. This is because of plaintiff's claim that the eviction action against him was unique in the history of the BMHA. Defendant's Affidavit dated April 10, 1979 at Appendix B, "Plaintiff's Answers to Interrogatories," at 3.

 Plaintiff's second claim is that Mr. Lehner coerced plaintiff to drop his state court action challenging the collection of excess utility charges from tenants who are AFDC recipients by bringing an eviction action, and then offering a lease renewal in exchange for dropping the state court suit. The motion for summary judgment as to this claim must be denied as well. There are material facts in issue. For example, plaintiff denies voluntarily signing a "Stipulation of Settlement and Discontinuance," while defendants insist the contrary. This is a triable issue.

 Defendants also contend that plaintiff's claim of discrimination is based on national origin, which they further assert is not covered by 42 U.S.C. § 1981. There are several reasons why I must reject defendants' arguments as to § 1981. First, it is not at all clear that plaintiff's claim is based solely on national origin discrimination. Although it is unclear from his amended complaint, plaintiff's answers to the defendants' interrogatories indicate that he claims he is being discriminated against because

(defendants) consider Plaintiff to be inferior to black people as being Muslim and from Pakistan.

 Defendants' Affidavit dated April 10, 1979 at Appendix B, "Plaintiff's Answers to Interrogatories," at 6.

 This statement requires some analysis. As plaintiff also states that he is an American citizen, this is a claim of discrimination on the basis of national origin, rather than alienage. It is also obviously a claim of discrimination based on religion. However, § 1981 does not apply to religious discrimination. Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th Cir. 1979). The critical words therefore are the ones at the start of the quotation. They make reference to treatment of plaintiff relative to a racial minority. It can be reasonably ...

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