Smith v. Young et al

Filing 54

MEMORANDUM OPINION & ORDER, denying 40 MOTION for Summary Judgment by Herbert R. Smith granting 43 44 MOTION for Summary Judgment by Ashland Housing Authority, Larry Brown, Mike Corwin, Bernice Henry, John McMeans, Maxine Mead, Greg Wakins, Rick L. Young ;. Signed by Judge Henry R. Wilhoit, Jr on 3/5/12.(SMT)cc: COR, Smith via USMail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

at ASHLAND

Civil Action No. lO-38-HRW
HERBERT R. SMITH,

v.

PLAINTIFF,

MEMORANDUM OPINION AND ORDER

RICK L. YOUNG, et al."

DEFENDANTS.

This matter is before the Court upon the Plaintiffs Motion for Summary
Judgment [Docket No. 40] and Defendants' Motion for Summary Judgment
[Docket Nos. 43 and 44]. For the reasons set forth herein, the Court finds that
Defendants are entitled to judgment as a matter of law.
I.

BACKGROUND
Plaintiff Herbert Smith filed this civil action, alleging that his applications

for low-income housing were wrongfully denied.

On or about September 15, 2009 the Plaintiff completed an application for
housing with the Housing Authority of Ashland. In his application, he admits that
he was recently releases from prison after serving 15 years for robbery.
In addition to the application he also signed the "Authorization for the
Release of Informationl Privacy Act Notice" provided by the U.S. Department of

Housing and Urban Development (HlJD) and the "Authorization for Release of
Information" provided by the Housing Authority of Ashland.
With these authorizations the Housing Authority of Ashland conducted a
criminal background check on Plaintiff, which confirmed his conviction for armed
robbery, escape from jail and theft by deception. The background check also
confirmed his release from prison on July 2,2009.

By letter dated, September 18, 2009, Defendant Rick Young, Executive
Director of the Housing Authority of Ashland, advising Plaintiff that he was not
eligible for housing. The reason stated for ineligibility is "[unsatisfactory police
report." The letter further advised Plaintiff that should he wish to discuss this
matter with Defendant Young, he should call the number listed on the letterhead
within fourteen days. There is no evidence in the record that Plaintiff contacted
Defendant Young in this regard.
On April 23, 2010, Plaintiff filed this civil action against Rick Young, and
other associated with the Ashland Housing Authority alleging violation of his civil
rights, pursuant to 42 U.S.C. § 1983.
All parties seek summary judgment.

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II.

SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure the Court must view

the evidence in the light most favorable to the nonmoving party, in this case, the
Plaintiff. Thus, when examining the record the Court will resolve doubts and
construe inferences in favor of the Plaintiff in an effort to determine if any genuine
issues of material fact exist.
The United States Court of Appeals for the Sixth Circuit has interpreted the
"trilogy" to mean that the nonmoving party must produce enough evidence, after
having had a reasonable opportunity to conduct discovery, so as to withstand a
directed verdict motion. Street v. J.c. Bradford & Co., 886 F.2d 1472, 1477 (6th
Cir. 1989).

IV.

ANALYSIS
Pursuant to federal law The Housing Authority of Ashland sets forth its

local policies in its Admissions and Continued Occupancy Policy (ACOP), which
is approved by HUD. The ACOP provides:
SECTION X. GROUNDS FOR DENIAL OF
ADMISSION.
1. The Housing Authority is neither required nor obligated to assist
families who:
E. Convicted of drug related criminal activity or violent criminal
activity.
The PHA shall prohibit admission to any household that includes any
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individual who is subject to a lifetime registration requirement under
a State Sex Offender Registration program;
H. Has a history of criminal activity involving crimes of physical
violence to persons or property and other criminal activity which may
adversely affect the
health, safety or welfare of other tenants.

[Docket No. 43, Exhibit No.4].
The policy further provides that, as a general rule, applicants may be denied
admission to public housing for the following time frames, which shall begin on
the date of application, unless otherwise provided herein below: (c) denied
admission for five years for the following: an arrest or conviction record that
indicates the applicant may be a threat and/or a negative influence on other
residents. The five years shall begin on the date of the last reported act, completion
of sentence and/or probation period (whichever is later). [Docket No. 43, Exhibit
No.4].
It is undisputed that Plaintffs application was denied based solely

upon his criminal history for anned robbery and his recent release from prison.
The factual statements herein are uncontroverted. The Plaintiff admits that he
spent 15 years in prison for anned robbery, admits that he was released from
prison in July 2009, applied for and was denied housing in September 2009. The
Defendants are not required to offer housing to those with criminal history.
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Moreover, Plaintff falls squarely into the policy set forth above, denying housing
to those release from prison within five years prior to their application.
Plaintiff has not identified nor alleged any violations of civil rights other
than his alleged class of former incarcerated individual. Contrary to Plaintiff s
assertion, there is no law which mandates protection for those with a criminal
history in the public housing context. Therefore, Plaintiffs claim is without merit
and the Defendants are entitled to Judgment as a matter of law.

V.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff s Motion for

Summary Judgment [Docket No. 40] be OVERRULED and Defendants' Motion
for Summary Judgment [Docket Nos. 43 and 44] be SUSTAINED.
This 5th day of March, 2012.

Henry R. Wilhoit, Jr., Senior Judge

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