McCall v. Montgomery Housing Authority et al
MEMORANDUM OPINION AND ORDER as follows: 1) Clevette Ellis's 88 Motion for Summary Judgment is GRANTED to the extent that it is directed to the claims brought pursuant to 42 USC § 1983 and all claims against Ellis are DISMISSED with PREJU DICE for the reasons set forth above. It is further ORDERED that Dft Clevette Ellis's pending 120 Motion in Limine is DENIED as moot; 2) The 85 Motion for Summary Judgment is GRANTED in part and DENIED in part as set forth below: a) The moti on is DENIED with respect to McCall's claims pursuant to 42 USC § 1983; b) The motion is GRANTED with respect to McCall's claims for breach of contract to the extent those claims are brought against Hester and Harris, and DENIED to the extent that those claims are brought against MHA; c) The motion is GRANTED with respect to McCall's claim that Dfts were negligent in their failure to employ a competent, impartial hearing officer to conduct hearings concerning the termination of Section 8 benefits; d) The motion is DENIED with respect to McCall's claim that MHA, Hester, and Harris were negligent in the training and supervision of Ellis. Signed by Honorable Judge Mark E. Fuller on 9/12/2011. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
AUTHORITY, et al.,
CIVIL ACTION NO. 2:10-cv-367-MEF
MEMORANDUM OPINION AND ORDER
In this case, the Court is called upon to address the claims of a tenant of Section 8
federally subsidized rental property against the local housing authority and several of its
employees for alleged violations of her due process rights, federal housing law, and state law
arising out of the attempted termination of her Section 8 benefits. Pursuant to 42 U.S.C. §
1983, Minnie McCall (“McCall”) brings suit against the Montgomery Housing Authority
(“MHA”), Evette Hester (“Hester”), Cathy Harris (“Harris”), and Clevette Ellis (“Ellis”) for
alleged violations of her federally protected rights under Section 8 of the U.S. Housing Act
of 1937, 42 U.S.C. § 1437 (“Section 8”) and various amendments to the United States
Constitution. McCall also brings breach of contract and negligence claims pursuant to
This cause is before the Court Defendant Clevette Ellis’s Motion for
Summary Judgment (Doc. # 88) and on the Motion for Summary Judgment (Doc. # 85) that
MHA, Hester and Harris jointly filed. For the reasons set forth below, the Court finds that
Defendant Clevette Ellis’s Motion for Summary Judgment (Doc. # 88) is due to be
GRANTED and the Motion for Summary Judgment (Doc. # 85) that MHA, Hester and
Harris is due to be GRANTED in part and DENIED in part.
JURISDICTION AND VENUE
This Court has subject matter jurisdiction over the claims in this action pursuant to
28 U.S.C. §§ 1331, 1343, and 1367. No challenge is made to the personal jurisdiction over
the parties or the appropriateness of venue;1 both of which are supported by the facts of this
Pursuant to Federal Rule of Civil Procedure 56(a), “a party may move for summary
judgment, identifying each claim or defense — or the part of each claim of defense — on
which summary judgment is sought.” A court presented with such a motion must grant it “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” A genuine dispute as to a material fact can only be
found “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). According to the
Supreme Court, “a party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material fact.”
Pursuant to 28 U.S.C. § 1391(b), venue is appropriate in this district.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation omitted). The movant can
meet this burden by presenting evidence showing there is no dispute of material fact, or by
showing the non-moving party has failed to present evidence in support of some element of
its case on which it bears the ultimate burden of proof. Id. at 322-23.
After the movant satisfies this requirement, the burden shifts to “the adverse party
[who] must set forth specific facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 250 (quotation omitted). “[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Id. at 247-48. The non-moving party “must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Eleventh
Circuit Court of Appeals has held that “[a]ll reasonable inferences arising from the
undisputed facts should be made in favor of the nonmovant, but an inference based on
speculation and conjecture is not reasonable.” Blackston v. Shook & Fletcher Insulation Co.,
764 F.2d 1480, 1482 (11th Cir. 1985) (citation omitted).
To the extent that any party submits argument in support of or in opposition to a
motion for summary judgment, to establish that a fact either cannot be or is genuine, the party
may only do so by citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits, declarations, stipulations,
admissions, interrogatory answers, or other materials. See Fed. R. Civ. P. 56(c)(1). While
a court may consider other materials in the record, the Federal Rules of Civil Procedure only
require the court to consider factual materials to which it has been properly referred by
citation. See Fed. R. Civ. P. 56(c)(1) & (3). If a party fails to properly support an assertion
or fact or fails to properly address another party’s assertion of fact as required by Rule 56(c),
the court may, inter alia, consider the fact undisputed for purposes of the motion and grant
summary judgment if the motion and supporting materials, including the facts considered
undisputed, show that the movant is entitled to it. Fed. R. Civ. P. 56(e).
FACTS AND PROCEDURAL HISTORY
The Court has carefully considered all deposition excerpts and documents submitted
in support of and in opposition to the motion. The submissions of the parties, viewed in the
light most favorable to the non-moving party, establish the following facts relevant to the
issues raised by defendants’ motions:
For almost four decades, the federal government has provided rental assistance to lowincome, elderly, and disabled families through the Section 8 housing program.2 The Section
8 program is administered by the Department of Housing and Urban Development (“HUD”),
which has promulgated regulations governing the Section 8 program (“HUD regulations”).
On the local level, the Section 8 program is administered by local public housing authorities.
The Section 8 program allows eligible families to apply to the local public housing authority
This program is also called the Housing Choice Voucher Program. See 24 C.F.R.
for assistance. If the application is approved, the local public housing authority issues a
Section 8 voucher to the family. With this voucher the family may locate a suitable rental
unit in the private market and enter into a lease that is in accordance with HUD regulations.
HUD has published regulations to implement and administer the Section 8 program. The
HUD regulations pertinent to this lawsuit provide a right to an informal hearing to applicants
who are terminated from the Section 8 program. See 24 C.F.R. §§ 982.551 - 982.553, &
MHA provides public housing services to residents in the Montgomery area. At all
times material to this suit, Hester served as the Executive Director of the MHA. As part of
its housing-related services, MHA administers Section 8 benefits available to qualified
recipients pursuant to guidelines and regulations the Department of Housing and Urban
Development (“HUD”) promulgated and pursuant to applicable federal law. At all times
relevant to this action, Harris served as the Section 8 Director for the MHA. As Section 8
Director, Harris was charged with overseeing the whole Section 8 program for MHA. This
included responsibility for functions such as waiting lists, recertification, move-ins, moveouts, reports, annual reports, payroll, decisions regarding termination of assistance, and other
Under federal regulations and law, recipients of Section 8 benefits and those family
members living with the recipient must refrain from engaging in certain types of criminal
behavior. In particular these individuals cannot engage in drug-related criminal activity,
violent criminal activity, or other criminal activity that threatens the health, safety, or right
to peaceful enjoyment of other residents or persons residing in the immediate vicinity of the
recipient’s premises. This prohibition is set forth not only in the applicable regulations but
also in the MHA Administrative Plan. See Doc. # 85 at Ex. E p. 39. Incidents of actual or
threatened domestic violence shall not be good cause for terminating the assistance of the
victim of such violence. Id. at p. 40.
From time to time, MHA runs background checks on existing Section 8 recipients and
their families to ensure compliance with the restrictions on criminal behavior. In order to
make such checks at the relevant period of time, MHA entered into an agreement with the
Montgomery County Sheriff’s Department and a public safety officer named Eric Brascomb
(“Brascomb”) to run the criminal background checks.3 Once the MHA receives information
from the Montgomery County Sheriff’s Department, which consists only of the name of the
person involved and the name of the offense with which they were charged, Harris reviewed
the information. If Harris determined that a receipt had violated the MHA rules, she sent a
letter to the Section 8 recipient advising the recipient of the termination of the benefits and
the right to a hearing.
MHA employed Ellis in its human resources department as Personnel Director for
According to his testimony, Brascomb was a “contract employee with the public
safety coordinator’s position.” MHA provided him with an office and an email account, but
it did not control his work schedule. MHA did not provide Brascomb formal training.
Brascomb performed several tasks for MHA including reviewing the criminal records of
voucher recipients to see whether their criminal records violated HUD’s requirements.
MHA.4 She did not work in the Section 8 program itself, but did occasionally serve as a
hearing officer for MHA. MHA provided Ellis with no formal training relating to her duties
as a hearing officer.5 Hester did sit down with Ellis and discuss the policies and procedures
for conducting termination hearings that were contained in MHA’s Administrative Plan. On
some occasions she served as a hearing officer at administrative hearings relating to the
termination of Section 8 benefits.
The MHA Administrative Plan contains detailed
information regarding procedures for terminating the assistance provided to participants in
the Section 8 Program. Doc. # 85 at Ex. E pp. 59-60. Ellis testified that when she acted as
a Hearing Officer for MHA, she followed the policies and procedures MHA had established.
However, the evidence before the Court calls this factual assertion into question.6 While her
responsibilities were broad enough to encompass other issues, during her tenure with MHA,
Ellis only served as a hearing officer in hearings requested when a recipient had received a
notice that the Section 8 benefits were being terminated due to criminal activity. Ellis admits
that after conducting such hearings she would confer with Harris regarding whether the
information received was adequate enough to determine if the factual basis for finding a rules
Ellis reported directly to Hester. Harris did not supervise Ellis’s activities.
It is undisputed that prior to her employment with MHA, Ellis had experience
working as a hearing officer at Webster Industries and a public information officer at the
Alabama Supreme Court.
For example, a reasonable jury could easily find that the notice sent to McCall after
the “informal hearing” does not comply with the requirements for such a notice found in the
MHA Administrative Plan. See Doc. # 85 at Ex. E p. 60.
violation existed or not. Furthermore, Ellis admits that she could not think of a single
criminal charge of any type that did not, in her view, violate the peaceful enjoyment of the
When a Section 8 benefits recipient received a termination notice, he could contact
either Ellis or Harris to request a hearing. Upon receipt of a request for a hearing, Harris
would work with Ellis to schedule a hearing. The regulations set forth in 24 C.F.R. §
982.555 govern the hearings process. The hearings are held in the Section 9 department.
Harris scheduled the hearings and sent out notice to the Section 8 benefits recipient who had
requested a hearing. If such a hearing needed to be rescheduled, the recipient could call
either Harris or Ellis.
McCall and her children participated in the Section 8 program MHA administered.
In late August of 2009, Harris received information that McCall had an active warrant for
first degree criminal mischief and that her daughter had a charge if theft by fraud.7 Harris
drafted the notice of termination of assistance letter for McCall on August 31, 2009. In early
September of 2009, McCall received the letter from Harris regarding termination of McCall’s
housing assistance. The only explanation as to the basis for the termination was the
following text contained in the letter:
It was later determined that the person involved in the theft by fraud case was not
McCall’s daughter. Moreover, McCall admits that the warrant against her exists, but
vigorously challenges the factual predicate for the warrant which she insists arose out lies
told by family members against her after a family dispute.
Violation of Housing Choice Voucher. Section 4. Obligations of the
Family: D(4) Engaged in drug-related criminal activity or violent criminal
activity or other criminal activity that threatens the health, safety or right
to peaceful enjoyment of other residents and persons residing in the
immediate vicinity of the premise.
Doc. 93-2 (emphasis in original). The Harris’s letter also advised McCall that if she wished
to appeal the decision, she had the right to an informal hearing, but that the request for such
a hearing must be submitted to MHA in writing within ten days from August 31, 2009. The
letter advised McCall of the address to which to mail or deliver a written hearing request.
On September 2, 2009, McCall drafted a letter to the Section 8 office of the MHA
regarding the termination of her assistance and formally asking to appeal. In this letter, she
denied engaging in any drug-related criminal activity or violent criminal activity or other
criminal activity that threatened the health, safety or right to peaceful enjoyment of property
by her neighbors. She also set forth the only things she could think of that might have lead
to the alleged violation. She stated that her house was drug free but that a neighbor was
angry with her for telling the landlord that the neighbor was smoking marijuana and that the
odor was coming in her unit. She also outlined that her sister Frances Fanning, who was also
a neighbor, was both angry with McCall and mentally ill.8
After receiving the termination letter, McCall also began to search for legal
Indeed, Frances Fanning’s husband and son were the people who had made the
complaint to police which resulted in the a February of 2008 indictment against McCall for
criminal mischief relating to an incident in September of 2007.
representation. Ultimately, an attorney from Legal Services Alabama agreed to act on
McCall’s behalf. On September 9, 2009, this attorney timely requested a hearing to appeal
the termination decision. After receiving the termination letter and before the hearing,
McCall also contacted Harris many times trying to get information as to what procedures had
been used to make the determination that McCall had engaged in criminal activity. Harris
told her that the information would be presented at the hearing and refused to provide any
specific information about the alleged violation of Section 4 of the Housing Choice Voucher.
On September 9, 2009, MHA sent McCall a letter advising her that her hearing had
been scheduled in accordance with her request. The hearing was set on September 18, 2009
at 1:30 p.m. The letter advising McCall of the date and time of the hearing also informed her
of the way to re-schedule the hearing if necessary by calling a specified telephone number.9
The letter also cautioned McCall that “[f]ailure to appear for [her] scheduled appointment
will result in a possible termination of [her] housing assistance.” See Doc. # 93-7.
On September 16, 2009, McCall wrote a letter to Harris and Hester. In this letter,
McCall discussed possibly rescheduling a re-examination until after her hearing. This letter
discloses that McCall is ill and that her asthma was acting up. She also complained of certain
people conspiring against her.
According to Ellis, at that time, a person needing to reschedule such a hearing could
do so by contacting either Harris or Ellis.
On September 18, 2009, McCall was still ill10 and could not attend the hearing.
Although the record does not make clear exactly when, McCall avers that she called Hester’s
office several times to try to reschedule the hearing.11 McCall spoke to Hester’s secretary
during these calls. Additionally, at times and dates unspecified, McCall also called and left
voice-mail messages with Ellis’ office trying to schedule another hearing. Neither McCall,
nor the attorney from Legal Aid who was then representing her, appeared at the hearing.
Somehow, a meeting of some type was scheduled to occur between MHA, MHA’s
counsel, McCall, and McCall’s counsel on September 24, 2009. McCall’s counsel cancelled
this meeting apparently after having had a falling out with McCall. On September 28, 2009,
McCall’s counsel advised MHA that Legal Services was no longer representing McCall.
On September 29, 2009, Ellis drafted a Memorandum regarding the termination of
McCall’s Section 8 benefits. This was a form letter which did not contain any specific
factual findings relating to the reason for the termination of the benefits, nor did it mention
anything regarding the failure of either McCall or her attorney to appear at her hearing. The
substance of the letter was limited to the following:
McCall’s chronic asthma was acting up.
Defendants dispute that any such calls were made prior to the date and time on
which the hearing was scheduled. While the Court must credit McCall’s affidavit testimony
that she made several calls to try to reschedule the hearing after she was ill on the date of the
hearing, the Court does not find that her testimony creates a genuine issue of material fact
as to whether she made any such calls before the time and date when her hearing was
As the hearing officer for the Section 8 Tenant Hearing Grievance held
in September regarding termination of rental assistance, I am notifying you
that your assistance will be terminated effective September 30, 2009.
Please note that this brings closure to this process.
Thanks for your attention in this important matter.
(Ex. J to Doc. 85). In fact, this letter was identical to the other letters that Ellis sent out after
conducting similar hearings for other benefits recipients.
From the record before this Court it appears that on September 30, 2009, police
arrested McCall on her outstanding warrant for criminal mischief. As of the date of this
Memorandum Opinion and Order, the charge remains pending and has not been resolved.
On October 1, 2009, McCall wrote to Ellis asking for an explanation of how her case
had been closed. McCall explained that she had been very ill for several weeks. In part, she
blamed her health problems on the termination notice she had received which allegedly
caused her landlord to decline to repair a leaking roof which resulted in mold and mildew
which triggered her asthma. McCall again denied having a criminal background and
promised that a lawsuit would follow.
On October 19, 2009, McCall and others filed a suit against MHA, Hester, Harris, and
Ellis. This suit alleged breaches of federal housing law and denials of due process in
violation of the constitutional rights of McCall and the other plaintiffs. After all the other
plaintiffs agreed to settle the case and McCall refused to do so on the terms offered, the
Court severed McCall’s claims from the claims of the other plaintiffs and this lawsuit was
Prior to the severance of the cases, the Court issued a preliminary injunction
prohibiting MHA from terminating the Section 8 benefits provided to McCall. McCall did
have to move to a different, and in her view, less safe and desirable rental unit as a result of
the events on which this lawsuit is based, but currently, she continues to receive Section 8
As of the date of this Memorandum Opinion and Order, McCall’s claims are set forth
in the Amended Complaint (Doc. # 80).
McCall seeks compensatory damages and
declaratory relief against the named defendants. McCall alleges that the notice that she
received from MHA regarding the impending termination of her Section 8 benefits was
deficient because it did not provide sufficiently specific information. She also alleges that
she was not afforded a hearing or that she was provided a constitutionally defective hearing.
She alleges that the decision issued after the hearing made no findings of fact denied her due
process rights as wells as rights created by the Federal Housing Act. In addition to her claims
under federal law, McCall also alleges claims arising under Alabama law.
A. Claims against Ellis
The claims in this action against Ellis arise out of the way that she performed her
duties as a hearing officer during the course of her employment with MHA. Specifically, the
way she acted with respect to her handling of the hearing for McCall. Ellis contends that
quasi-judicial immunity protects her from such claims. In this Court’s view, quasi-judicial
immunity affords Ellis protection from all of McCall’s claims arising out of the performance
of her hearing officer duties.12
Courts have long recognized immunity from suit which protects judicial officers from
suit pursuant to § 1983.
Judges are entitled to absolute judicial immunity from damages under section
1983 for those acts taken while they are acting in their judicial capacity unless
they acted in clear absence of all jurisdiction. A judge does not act in the clear
absence of all jurisdiction when he acts erroneously, maliciously, or in excess
of his authority, but instead, only when he acts without subject-matter
See, e.g., Drees v. Ferguson, 396 F. App’x 656, 659 (11th Cir. 2010) (quotations and internal
citations omitted). Courts have recognized that judicial immunity extends to “hearing
officers” who conduct administrative hearings just as it does to those elected or appointed
to preside over judicial proceedings. See, e.g., Dixon v. Clem, 492 F.3d 665, 674-75 (6th Cir.
2007); Smith v. Shook, 237 F.3d 1322 (11th Cir. 2001). Indeed, courts have held that hearing
As McCall articulated her claims in both the Order on Pretrial Hearing and the
pleadings in this case, it would seem that she asserts all of the claims in the lawsuit against
all of the defendants. Nevertheless, the Court finds absolutely no factual or legal basis for
McCall’s claims under Alabama law against Ellis, as opposed to the other defendants to this
action. For example, the breach of contract claim alleges that Ellis and the other defendants
breached the contract between MHA and McCall. McCall makes no effort to explain or
support any basis for such a claim against Ellis. Ellis was not a party to this contract. The
remaining state law claims all have to do with failing to employ, train, and monitor Ellis.
Clearly, such claims cannot be brought against Ellis, rather they fault other defendants for
their actions relating to selecting, training, and monitoring Ellis. Accordingly, the Court is
of the opinion that McCall does not urge any of her state law claims against Ellis, as opposed
to other defendants despite the lack of precision in the wording of the plaintiff’s pleadings
officers who preside over hearings regarding the termination of Section 8 benefits, just like
the one at issue in this case, are entitled to the protection of judicial immunity. See, e.g.,
Wood v. Willis, No. 3:09cv2412, 2010 WL 3808279 at *9-*10 (N.D. Ohio Sept. 27, 2010);
Lopez v. Johnson, 1:09cv2174-LJO-JLT, 2010 WL 2044683 at *4 (E.D. Cal. May 20, 2010).
The Court is persuaded that the allegations against Ellis clearly implicate only conduct for
which she is entitled to quasi-judicial immunity. Accordingly, she is entitled to judgment as
a matter of law with respect to McCall’s claims against her.
B. Claims against Hester, Harris, and MHA
1. Claims Pursuant to 42 U.S.C. § 1983
a. Overview of Analytical Paradigm and Nature of McCall’s Claims
All of McCall’s federal claims in this action are brought against defendants pursuant
to 42 U.S.C. § 1983. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. Section 1983 provides a remedy when person acting under color of state
law deprives a plaintiff of a right, privilege, or immunity secured by the Constitution, laws,
or treaties of the United States. See, e.g., 42 U.S.C. § 1983; Graham v. Connor, 490 U.S.
386, 393-94 (1989) (“§ 1983 is not itself a source of substantive rights, but merely provides
a method for vindicating federal rights elsewhere conferred”) (internal quotes omitted);
Cummings v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). “In order to seek redress
through § 1983, however, a plaintiff must assert the violation of a federal right, not merely
a violation of federal law.” See, e.g., Blessing v. Freestone, 520 U.S. 329, 340 (1997)
(emphasis in original). Accord, Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).
In the § 1983 claims in this lawsuit, McCall contends that Defendants violated her
right to due process in several ways: (1) by failing to provide adequate notice prior to
terminating her participation in the Section 8 benefits program; (2) by failing to provide an
impartial hearing officer to hear McCall’s appeal of the decision to terminate her Section 8
benefits; (3) by failing to present evidence to establish that she had violated the Section 8
assistance agreement; and (4) by issuing a pro forma hearing decision letter rejecting
McCall’s appeal without any adequate basis for termination or any proper hearing first.
McCall also contends that Defendants violated federal housing laws in a variety of ways: (1)
by failing to send her a Section 8 termination notice which provided a statement of the
grounds for the termination; (2) by failing to provide McCall with a copy of the record and
an opportunity to dispute the accuracy and relevance of that record; and (3) by sending her
a hearing decision letter that did not provide a statement of the grounds for the decision.
McCall alleges that Defendants, through several actions performed under color of law,
deprived her of various rights conferred by the United States of America’s Constitution and
Section 8. Therefore, McCall must allege that every action taken by defendants 1) was
“under color” of law as defined by § 1983 and cases interpreting that language, and that each
action 2) deprived her of a specific right conferred by the Constitution or a federal statute.
In these cases, the parties do not dispute that defendants acted under color of law. Thus, the
focus of the arguments before this Court center on the alleged deprivation of Constitutional
or statutory rights.
With respect to their claims against MHA, McCall faces an additional burden of
proof. Because the language of § 1983 speaks in terms of creating liability for persons who
act in a certain fashion, there was initially a question as to whether the statute created a
remedy for violations of rights by municipalities or other governmental entities which do not
at first blush constitute persons. The United States Supreme Court resolved this issue by
explaining that local governments are “persons” that can be sued under § 1983. See, e.g.,
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). A municipality or
governmental entity is only liable under § 1983 if it is found to have itself caused the
violation of federal law or deprivation of federally created rights; a municipality or
governmental entity cannot be held vicariously responsible under a theory of respondeat
superior. Skop v. City of Atlanta, 485 F.3d 1130, 1145 (11th Cir. 2007). Thus, to hold a
municipality or governmental entity liable under § 1983, a plaintiff must first show that the
alleged injury resulted from the execution of a governmental entity’s policy or its customs.
See, e.g., Skop, 485 F.3d at 1145; Grech v. Clayton County, 335 F.3d 1326, 1320 (11th Cir.
Defendants have not argued that the alleged injuries did not result from a
governmental entity’s official policies or customs.
b. Analysis of Claims
As explained above, McCall contends that MHA, Hester, and Harris violated her due
process rights as protected by the Fourteenth Amendment and her statutory rights under the
United States Housing Act of 1937 and the HUD Regulations promulgated thereunder. No
party to this action has disputed that recipients of public assistance, such as Section 8
assistance, have a protected property interest in continuing to receive such assistance, and
that violations of federal housing laws are actionable under Section 1983. See, e.g., Wright
v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 429 (1987); Goldberg v. Kelly, 397 U.S.
254, (1970); Kapps v. Wing, 404 F.3d 105, 113 (2d Cir.2005) (“procedural due process
protections ordinarily attach where state or federal law confers an entitlement to benefits”);
Price v. Rochester Hous. Auth., No. 04-CV-6301, 2006 U.S. Dist. LEXIS 71092, at *17-18,
2006 WL 2827165 (W.D.N.Y. Sept. 29, 2006) (noting the due process protection afforded
to Section 8 participants).13
In order to terminate such a protected property interest, due process requires (1) timely
In this Court’s view, it is possible that later cases from the United States Supreme
Court and the Eleventh Circuit Court of Appeals may have altered the analysis of whether
§ 1983 may be used to enforce claims of alleged violation of the Housing Act and the HUD
Regulations, but the Court need not consider this issue because none of the defendants have
raised it in this case.
and adequate notice, including the reasons for the proposed termination, (2) an opportunity
to be heard at a pre-termination hearing, including the right to present evidence and confront
and cross-examine witnesses, (3) a right to be represented by counsel at the hearing, (4) a
written decision, including the reasons for the determination and the evidence on which the
decision maker relied, and (5) an impartial decision maker. See Goldberg, 397 U.S. at 26671. The HUD Regulations also require the basic procedural guidelines set forth in Goldberg.
See 24 C.F.R. §§ 982.552 and 982.555. Moreover, due process generally requires the
decision-maker to state the reasons for his determination and indicate the evidence upon
which he relied. See Goldberg, 297 U.S. at 271. However, the decision need not amount to
a “full opinion or even formal findings of fact and conclusions of law.” Id. The HUD regulations
governing housing assistance termination hearings reflect the Goldberg standard: “[t]he
person who conducts the hearing must issue a written decision, stating briefly the reasons for
the decision.” 24 C.F.R. § 982.555(e)(6).
McCall contends that the notice she received regarding the termination of her Section
8 benefits was deficient. The Court agrees. The Court acknowledges that a panel of the
Eleventh Circuit Court of Appeals has held, in an unpublished decision, that a Section 8
termination hearing notice is not required to specify the individual alleged to have committed
the illegal activity or to specify the time that the activity took place. See, e.g., Ervin v.
Housing Auth. of Birmingham Dist., No. 07-14219, 2008 WL 2421799 at *3 (11th Cir. June
17, 2008). Nonetheless, prior binding authority provides that a notice that merely parrots the
broad language of applicable regulations is insufficient. See Billington v. Underwood, 613
F.2d 91, 94 (5th Cir. 1980).14
Indeed, even the Ervin decision acknowledges that as the
notice approved in that case not only invoked the language of the HUD regulation violated,
but also provided a description of “the factual basis for the determination.” 2008 WL
2421799 at *3. Here, it is undisputed that the notice contained only the language from the
HUD regulation MHA believed McCall had violated and did not provide any description of
the factual basis for the determination. Accordingly, a reasonable jury could find for McCall
on her claim that the notice was deficient. Furthermore, a reasonable jury could find that the
deficiencies in the notice coupled with the refusal of MHA employees to provide further
information to McCall prior to the hearing interfered with her opportunity to present evidence
at the hearing itself. Finally, a reasonable jury could find that the written decision issued
after the “hearing” was deficient because it did not contain any reasons whatsoever for the
For these reasons, the Court finds that MHA, Hester, and Harris fail to establish
entitlement to judgment as a matter of law on McCall’s claims pursuant to § 1983.
Furthermore, genuine issues of facts material to such claims exist. Accordingly, the motion
for summary judgment as to these claims is due to be DENIED.15
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions
handed down prior to the close of business on September 30, 1981.
The Court does not find that the arguments regarding McCall’s failure to appear
at the hearing constituting a waiver of any due process violation to be persuasive. These
2. Claims Pursuant to State Law
McCall’s claims pursuant to Alabama law are as follows: (1) a claim that Defendants
breached the contracts between MHA and McCall, specifically the Housing Assistance
Payment Contract and the Recertification Agreement; (2) a claim that Defendants were
negligent in their failure to employ a competent, impartial hearing officer to conduct hearings
concerning the termination of Section 8 benefits; (3) a claim that Defendants were negligent
in their failure to train the hearing officer to the point of competence; and (4) a claim that
Defendants were negligent in their supervision of the hearing officer who conducted the
hearings concerning the termination of Section 8 benefits.
McCall has conceded that Defendants are entitled to summary judgment on the claim
that Defendants were negligent in their failure to employ a competent, impartial hearing
officer to conduct hearings concerning the termination of Section 8 benefits. Accordingly,
Defendants’ motion for summary judgment is due to be GRANTED as to that claim.
With respect to McCall’s claims of negligence in the training and supervision of Ellis,
the Court finds that genuine issues of material fact exist and that MHA, Hester, and Harris
have failed to show that they are entitled to judgment as a matter of law. Accordingly, the
motion for summary judgment is due to be DENIED as to those claims.
arguments stretch the authorities on which they are based too far. Moreover, the argument
that the decision after the hearing was based on a preponderance of the evidence does not
persuade the Court that MHA, Harris, and Hester are entitled to judgment as a matter of law.
Material facts are in dispute with respect to this argument, and the entitlement to judgment
as a matter of law on this basis is not supported in the circumstances of this case.
With respect to McCall’s claims of breach of contract, the Court finds no evidence
from which a reasonable jury could find in favor of McCall as to such claims against Hester
and Harris, two individuals who were not parties to the contract alleged to have been
breached. Moreover, McCall provides no legal support for her contention that Alabama law
allows suit against such persons in these circumstances. Accordingly, to the extent that the
motion for summary judgment seeks judgment as a matter of law on the breach of contract
claims against Hester and Harris, it is due to be GRANTED. With respect to MHA, the
analysis is different. MHA is a party to a contract with McCall. Genuine issues of material
fact preclude summary judgment in MHA’s favor with respect to McCall’s breach of contract
claim against it. Accordingly, the motion is due to be DENIED with respect to that claim.
For the foregoing reasons, it is hereby ORDERED as follows:
1. Clevette Ellis’s Motion for Summary Judgment (Doc. # 88) is GRANTED to the
extent that it is directed to the claims brought pursuant to 42 U.S.C. § 1983 and all claims
against Ellis are DISMISSED with PREJUDICE for the reasons set forth above. It is further
ORDERED that Defendant Clevette Ellis’s pending motion in limine (Doc. # 120) is
DENIED as moot.
2. The Motion for Summary Judgment (Doc. # 85) is GRANTED in part and
DENIED in part as set forth below:
a. The motion is DENIED with respect to McCall’s claims pursuant to 42
U.S.C. § 1983.
b. The motion is GRANTED with respect to McCall’s claims for breach of
contract to the extent those claims are brought against Hester and Harris, and DENIED to the
extent that those claims are brought against MHA.
c. The motion is GRANTED with respect to McCall’s claim that Defendants
were negligent in their failure to employ a competent, impartial hearing officer to conduct
hearings concerning the termination of Section 8 benefits.
d. The motion is DENIED with respect to McCall’s claim that MHA, Hester,
and Harris were negligent in the training and supervision of Ellis.
DONE this the 12th day of September, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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