Davis et al v. The City of New York et al

Filing 257

OPINION AND ORDER: NYCHA has not established at this stage of briefing that it is entitled to summary judgment on Jones's and Suarez's section 1981 claims. NYCHA's motion for summary judgment on these claims will be addressed again at the second round of summary judgment briefing. The Clerk of the Court has already closed this motion [Docket No. 183]. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 1/14/2013) (ama)

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER,
EDWIN LARREGUI, ANTHONY
ANDERSON, SHA WNE JONES, HECTOR
SUAREZ, ADAM COOPER, DAVID
WILSON, GENEVA WILSON, ELEANOR
BRITT, ROMAN JACKSON, KRISTIN
JOHNSON, LASHAUN SMITH, ANDREW
WASHINGTON, PATRICK LITTLEJOHN,
RA YMOND OSORIO, VAUGHN
FREDERICK, and R.E., by her parent D.E.,
individually and on behalf of a class of all
others similarly situated,

OPINION AND ORDER
10 Civ. 0699 (SAS)

Plaintiffs,
- againstTHE CITY OF NEW YORK and NEW
YORK CITY HOUSING AUTHORITY,
Defendants.

-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

BACKGROUND
This putative class action challenges the policies and practices that the

New York City Police Department ("NYPD") and the New York City Housing
Authority ("NYCHA") use to enforce prohibitions against trespassing on public

1

housing property. 1 Plaintiffs have brought twelve causes of action against the
NYPD and NYCHA under federal, state, and local laws and under the United
States and New York State constitutions. Defendants moved for partial summary
judgment on most of these claims. The parties agreed to brief these motions in two
parts: the first part, adjudicated in an Opinion issued on October 9, 2012 ("Davis
f'), addressed the individual circumstances of plaintiffs' arrests and tenancies. 2

The second part, which has yet to be adjudicated, will address defendants' policies
and practices in the context of Monell liability.
Prior to Davis I, nine of the sixteen original plaintiffs, including
Shawne Jones and Hector Suarez, accepted offers of judgment from the City
pursuant to Federal Rule of Civil Procedure 68. 3 NYCHA argued that the
Judgment released and discharged it from plaintiffs' claims as wel1. 4 I did not
address the issue at that time, but noted that "it is the parties' intent that will

See Davis v. City a/New York ("Davis f'),
WL 4813837, at *1 (S.D.N.Y. Oct. 9,2012).

F. Supp. 2d -,2012

2

See id. (granting in part and denying in part defendants' motions).

3

See Davis v. City o/New York, No. 10 Civ. 0699,2011 WL 4946243,

at *1 (S.D.N.Y. Oct. 18,2011).
4

See id. at * 1 n.2.

2

control the scope of the Rule 68 Judgments."s
In the original version of Davis I, issued October 4,2012, I assumed
based on the parties' briefing that Jones and Suarez had withdrawn their claims
against NYCHA. 6 It later became clear that the parties continued to disagree on
this issue. 7 At a conference on October 12,2012, after determining that Jones and
Suarez had not withdrawn their claims against NYCHA as part of the Rule 68
Judgment,8 I invited NYCHA to move for summary judgment with respect to the
individual circumstances of Jones's and Suarez's tenancies. 9
The briefing is now complete. For the reasons stated below, I
conclude that NYCHA has not established at this stage of briefing that it is entitled

Id. The details of the Rule 68 Judgment concerned only the City, and
made no reference to NYCHA. See 217111 Judgment Pursuant to Rule 68 ("Rule
68 Judgment") at 2 (Jones and Suarez taking "judgment against defendant The City
of New York"). NYCHA's belief that the Judgment released and discharged it
from Jones's and Suarez's claims was based in part on a clearly unintended plural
"s" included in boilerplate language in the penultimate paragraph, which stated
"this judgment shall act to release and discharge defendants." Rule 68 Judgment at
3 (emphasis added). See Transcript of 10/12/12 Conference ("Tr. 10112") at
5:24-6:9,8:19-9:17,13:5-14:9.
5

6

See 10/4112 Opinion & Order at 54 & n.151.

See 10/9112 Order; 10111112 Letter from Matthew J. Moses, Counsel
for Plaintiffs, to the Court.
7

SeeTr.l0/12at9:15-17.
9

See id. at 14:20-15:25.
3

to summary judgment on Jones's and Suarez's section 1981 claims.
II.

DISCUSSION
Summary judgment is appropriate only 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."lo I assume familiarity with the law laid out in Davis

1. The same legal principles apply here.
A.

Jones's and Suarez's Claims Under Title VI of the Civil Rights
Act of 1964, the Fair Housing Act, the New York State and New
York City Human Rights Laws, and the United States Housing
Act
Jones and Suarez are residents ofNYCHA apartment buildings. I I

They bring claims against NYCHA under Title VI of the Civil Rights Act of 1964;
Title VIII of the Civil Rights Act of 1968 (the "F air Housing Act" or "FHA"); the
Civil Rights Act of 1866 (42 U.S.C. § 1981); the New York State and New York
City Human Rights Laws; and the United States Housing Act ("USHA,,).12 I
address Jones's and Suarez's section 1981 claim below. All other claims are

10

Fed. R. Civ. P. 56(a).

See NYCHA's Memorandum of Law in Further Support of Motion for
Summary Judgment ("NYCHA Mem.") at 3, 6; Plaintiffs' Memorandum of Law in
Opposition to Defendant NYCHA's Supplemental Motion for Summary Judgment
("PI. Mem.") at 3, 4.
II

12

See Pi. Mem. at 1.
4

addressed here.

In Davis I, I ruled on summary judgment motions relating to similar
claims by three other NYCHA resident plaintiffs: Eleanor Britt, Patrick Littlejohn,
and Rikia Evans. 13 With regard to defendants' summary judgment motions on
these resident plaintiffs' Title VI, FHA, New York State and New York City
Human Rights Laws, and USHA claims, I determined that each claim raised issues
that went beyond plaintiffs' individual circumstances and could not be addressed
before the second round of summary judgment briefing on plaintiffs' Monell
claims. 14 The same analysis applies here. 15 Accordingly, NYCHA's motion for
summary judgment on Jones's and Suarez's claims under Title VI, the FHA, the
New York State and New York City Human Rights Laws, and the USHA is denied
without prejudice. 16

13

See Davis 1,2012 WL 4813837, at *16-25.

14

See id.

15

I was not persuaded by NYCHA's suggestion that Jones's and
Suarez's individual circumstances are material to their USHA claim against
NYCHA. See NYCHA Mem. at 2. As I stated in Davis I, the question of whether
NYCHA has contravened USHA's prohibition on "unreasonable terms and
conditions" in its leases "involves an inquiry into NYCHA's practices and policies
rather than into plaintiffs' individual circumstances." Davis 1,2012 WL 4813837,
at *22, *25.
NYCHA has already properly renewed its motion for summary
judgment on all resident plaintiffs' claims as part of the second round of summary
16

5

B.

Jones's and Suarez's Claim Under 42 U.S.C. § 1981

As I stated in Davis I,17 42 U.S.C. § 1981 protects the rights of all

persons "to make and enforce contracts" free from discrimination on the basis of
race. Section 1981 (b) states:
F or purposes of this section, the term "make and enforce
contracts" includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.
(Emphasis added.)
Section 1981 "offers relief when racial discrimination ... impairs an
existing contractual relationship, so long as the plaintiff has or would have rights
under the existing or proposed contractual relationship.,,18 Like Evans, Littlejohn,
and Britt, Jones and Suarez are authorized residents on a lease (that is, a contract)
with NYCHA. I9 The question is whether Jones's and Suarez's rights under their
contractual relationship with NYCHA have been impaired because of racial
discrimination.

judgment briefing. See NYCHA's 12/5/12 Memorandum of Law in Support of its
Motion for Summary Judgment.
17

18

See Davis I, 2012 WL 4813837, at *18.
Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006).

See Davis I, 2012 WL 4813837, at *18; Plaintiffs' Rule 56.1
Statement of Additional Material Facts in Opposition to Defendant NYCHA's
Supplemental Motion for Summary Judgment ~~ 4, 26.
19

6

In Davis I, I determined that "[b]oth the right to come and go as they
please and the right to accommodate guests are material to plaintiffs' contracts;
whether those contracts have been legally impaired is a fact-intensive inquiry.,,20 I
then concluded:
Plaintiffs Evans and Littlejohn have proffered concrete
evidence showing that since their arrests, they feel less free to
come and go from their buildings and to have guests visit them.
Evans has testified that police officers referred to her as "nigger"
when she was arrested and Littlejohn testified that his friend
Washington was also called a "nigger" in Littlejohn's building
while he was attempting to visit Littlejohn. If she believes
plaintiffs' testimony, a reasonable juror could find that the City
has impaired Evans' and Littlej ohn' s residential leases in violation
of section 1981. Summary judgment on this claim is therefore
denied.
In contrast, plaintiffs have offered no evidence regarding
the alleged impairment ofBritt's contract. Therefore, defendants'
motions for summary judgment on Britt's section 1981 claim [are]
granted? 1
Plaintiffs' section 1981 claim is directed toward all defendants and
does not specify how NYCHA, specifically, impaired plaintiffs' contracts through
racial discrimination. 22 Drawing all reasonable inferences in favor of plaintiffs, I
assume that plaintiffs will seek to establish the following: (1) NYCHA has worked

20
21

22

Davis, 2012 WL 4813837, at *19 (emphasis added).
Id. at *19-20 (citations and footnotes omitted).

See Amended Complaint ("Am. Compl.")" 266-271.
7

"in conjunction and collaboration" with the NYPD on trespass enforcement at
NYCHA buildings;23 (2) the NYPD's trespass enforcement policies and practices
are racially discriminatory;24 and (3) these policies and practices impaired
plaintiffs' contractual rights in violation of section 1981. 25 The first two points
depend on policies and practices that go beyond the individual circumstances of
Jones's and Suarez's tenancies, and thus cannot be addressed before the second
round of summary judgment briefing. The third point, however, can be addressed
now: have Jones and Suarez raised a genuine issue of material fact as to whether
their individual contracts with NYCHA were impaired by the NYPD's and
NYCHA's trespass enforcement policies and practices? Ifnot, NYCHA would be
entitled to summary judgment on lones's and Suarez's section 1981 claims.
Jones and Suarez, like Evans and Littlejohn, have proffered concrete
evidence showing that as a result of trespass enforcement policies and practices in
their buildings, they feel less free to come and go or to have guests visit them.
Based on the testimony of Jones and Lashaun Smith, a reasonable juror could find
that Smith, Jones's friend and the godfather of her son, visited Jones less after he

23

PI. Mem. at 1.

24

See Am. CompI. ,,267-269.

25

See id.

8

was illegally stopped and arrested for trespass as he exited Jones's building. 26
Jones also testifed that the police stopped Jones's brother in her building on more
than one occasion, and stopped her boyfriend at least once. 27 Jones testified that
she now tells her male cousins to call before they visit "to let me know if I can
meet them downstairs.,,28 She does this to "avoid the cops stopping them and

See Excerpts of 8/4111 Transcript of Jones Deposition ("PI. Jones
Tr.") at 93-95, 121, Exhibit ("Ex.") 1 to 11114112 Declaration of Katharine E.G.
Brooker, Counsel for Plaintiffs, in Support of Plaintiffs' Opposition to NYCHA's
Motion for Summary Judgment ("Brooker Decl."); Excerpts of 3116/11 Transcript
of Smith Deposition ("PJ. Smith Tr.") at 48-50, 66, 78-80, 88, 92, 112, Ex. 4 to
Brooker Decl.; Davis I, 2012 WL 4813837, at *6-7 (reasonable juror could
conclude Smith's stop and arrest was unlawful). NYCHA argues that Smith
stopped visiting Jones regularly because Smith moved to Virginia, and that Smith
explicitly denied that his arrest made him less likely to visit someone who lived in
NYCHA property. See Reply Memorandum of Law of Defendant NYCHA in
Support of Its Motion for Summary Judgment on Plaintiffs' Individual Claims
("NYCHA Reply Mem.") at 6. Smith's testimony on these points, however, is
somewhat unclear. Smith explains his lack of concern for being arrested again at
Jones's building, for example, by stating: "... I don't, I don't stay in contact with
police. I come, I get down, and get out the building. I don't be in there too long."
PI. Smith Tr. at 112. Though the question is close, a reasonable juror could find
that Smith does not fear being arrested in Jones's building because he has already
altered his routine to spend less time there.
26

See Excerpts of 8/4111 Transcript of Jones Deposition ("NYCHA
Jones Tr.") at 18-21, 28-29, Ex. A to 10/26112 Declaration of Steven 1. Rappaport,
Counsel for NYCHA, in Further Support of NYCHA's Motion for Summary
Judgment ("Rappaport Decl.").
27

28

NYCHA Jones Tr. at 138:6-8.
9

taking them in for nothing.,,29
Suarez testified that he suffers from a serious back injury and often
relies on family members and friends to deliver meals to his home. 3D He testified
that Adam Cooper, a friend and the boyfriend of Suarez's niece, was illegally
stopped and arrested for trespass after delivering a meal to Suarez. 3! When Suarez
made his way downstairs and attempted to explain that Cooper was an invited
guest, the officers allegedly told him to "mind [his] business, to get the [fuck] back
upstairs," then threatened him with arrest ifhe did not comply.32 Suarez stated that
the way the officers spoke to him was "embarrassing.,,33 A reasonable juror could
find that Suarez being ordered to return to his apartment, and being threatened with
arrest ifhe did not comply, impaired Suarez's right to come and go as he pleased.
In addition, since the incident described above, Cooper has visited
Suarez less often than before. 34 NYCHA emphasizes the following exchange,
29

Id at 138:19-20.

See Excerpts of 9/1111 Transcript of Suarez Deposition at 44, 64-67,
Ex. 2 to Brooker Decl.
30

31

32
33

See id at 64-70,87-88, 100, 137.

Id at 71-80.
Id at 115.

See Excerpts of9/1/11 Transcript of Suarez Deposition at 116:12-19,
Ex. B to Rappaport Decl.
34

10

which immediately follows Suarez's testimony that Cooper visits less often than he
used to:
Q.
A.
Q.

A.

Do you know why that is?
No. Maybe because he's working.
Do you believe that this arrest, the fact that Mr. Cooper was
arrested as he was leaving your apartment, do you believe
that that has affected the frequency with which he visits
you?
I can't say.35

Because no other explanation is offered for Cooper's decision to visit Suarez less
often after the stop and arrest than before, a reasonable juror could find that the
change in Cooper's visiting resulted from Cooper's encounter with the police.
Viewing the evidence in the light most favorable to Jones and Suarez,
a reasonable juror could find that the trespass enforcement policies and practices in
Jones's and Suarez's buildings have impaired their rights under their residential
leases with NYCHA in violation of section 1981. NYCHA's motion for summary
judgment on Jones's and Suarez's section 1981 claims is therefore denied to the
extent that it relied upon their contractual rights having not been impaired.

III. CONCLUSION
NYCHA has not established at this stage of briefing that it is entitled

ld. at 116:20-117: 1. Suarez also stated that no other guests to his
apartment have been stopped, and that the incident involving Cooper's stop and
arrest has not affected him in any way other than making him angry and
embarrassed. See id. at 115-16.
35

11

to summary judgment on Jones's and Suarez's section 1981 claims. NYCHA's
motion for summary judgment on these claims will be addressed again at the
second round of summary judgment briefing. The Clerk of the Court has already
closed this motion [Docket No. 183].

Dated:

New York, New York
January 14,2013

12

Appearances
For Plaintiffs:
Katharine E.G. Brooker, Esq.

Matthew J. Moses, Esq.

Paul, Weiss, Rifkind, Wharton &

Garrison LLP

1285 Avenue of the Americas

New York, New York 10019

[phone]

Steven Banks, Esq.

William D. Gibney, Esq.

Steven Wasserman, Esq.

Nancy Rosenbloom, Esq.

Marlen S. Bodden, Esq.

Legal Aid Society of New York

199 Water Street

New York, New York 10038

[phone]

Debo P. Adegbile, Esq.

Christina Swarns, Esq.

Johanna B. Steinberg, Esq.

Jin Hee Lee, Esq.

Johnathan Smith, Esq.

Ria Tabacco, Esq.

NAACP Legal Defense &

Educational Fund, Inc.

99 Hudson Street, 16 th Floor

New York, New York 10013

[phone]

For Defendant NYCHA:
Steven Jay Rappaport, Esq.
New York City Housing Authority
250 Broadway, 9th Floor
New York, New York 10007
[phone]

13