Opinion
CIVIL ACTION NO. 02-8941
September 26, 2003
MEMORANDUM AND ORDER
Presently before the court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, defendants' motion will be granted.
Facts
The following material facts are undisputed. Until November 2002, plaintiff and her daughters had lived in Tasker Homes, a public housing development which is overseen by the Philadelphia Housing Authority ("PHA"). In May 2002, PHA informed the residents of Tasker Homes that the development would undergo extensive rehabilitation, resulting in the temporary displacement of residents to either another PHA development or Section 8 housing. See Pl. Br., Exh. #1 (PHA's relocation notice). Once plaintiff learned of the pending modernization project, she met with a PHA representative to discuss her options. See Pl. Br., Exh. #3 (Plaintiff's Affidavit). Plaintiff opted for Section 8 housing and, on August 21, 2002 informed a PHA Relocation representative of her decision, who soon thereafter issued a Section 8 voucher to her. See Pl. Br., Exh. #4 (Copy of plaintiff s Section 8 voucher).
On November 22, 2002, plaintiff selected suitable Section 8 housing at 1080 Alcott Street, and communicated her selection to Brian Slaughter ("Slaughter"), the PHA Relocation Representative. Slaughter informed plaintiff that she would have to move by November 29, 2002. See Pl. Br., Exh. #6 (PHA's Client Assessment Form). On November 27, 2002, however, the 1080 Alcott location failed inspection. See Pl. Br., Exh. #5 (Request for Admissions). Despite this fact, PHA nonetheless scheduled plaintiff's move for November 29, 2002. Id. The moving company hired by PHA hired moved plaintiff's possessions to 1080 Alcott, where the door was left unlocked. See Pl. Br., Exh. #3 (Plaintiff's affidavit). Plaintiff waited for several hours for either the owner or his representative to appear and give her a key, during which time she discovered that the residence was in disrepair. Id. Eventually, left with no other alternative, plaintiff left the residence, closing the door behind her, and thereby locking her possessions inside. Id.
Over the course of the next several days, plaintiff contacted Sharon Robinson, a Section 8 representative, who told her that although the residence had not passed inspection, PHA would conduct another inspection on December 2, 2002. Id. On that date, PHA attempted to conduct another inspection, but was unable to enter the locked residence. See Pl. Br., Exh. #10 (December 2, 2002 inspection report). A week later, on December 9, 2002, plaintiff filed the instant action. On December 11, 2002, PHA conducted a final inspection and deemed the apartment habitable. See Pl. Br., Exh. #5 (Request for admission). On December 17, 2002, the owner of 1080 Alcott signed an Assisted Lease Agreement Voucher, thereby allowing plaintiff to move into the residence. Id. Despite these facts, plaintiff was not able to gain entry to the residence until PHA issued her another Section 8 voucher on March 18, 2003. See Pl. Br., Exh. #3 (Plaintiff's affidavit). Plaintiff has since been restored to her Section 8 program and rehoused.
Standard of Review
Either party to a lawsuit may file a motion for summary judgment, and the court will grant it "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.CIV. P. 56(c). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted). When a court evaluates a motion for summary judgment, "[t]he evidence of the non-movant is to be believed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Additionally, "all justifiable inferences are to be drawn in [the non-movant's] favor." Id. Moreover, "[s]ummary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy, 90 F.3d at 744 (citation omitted). However, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). The nonmovant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
Discussion
In order to succeed in her § 1983 claim, plaintiff must allege and produce more than a scintilla of evidence that a person, acting under color of law, deprived her of "any rights, privileges, or immunities secured by the Constitution and laws. . . ." 42 U.S.C.A. § 1983 (WEST 2003). In the instant case, plaintiff claims that the PHA and several of its officials-whom she is suing in their official and individual capacities-violated her constitutional due process rights, the U.S. Housing Act, 42 U.S.C. § 1437 et seq., the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq., and the regulations promulgated pursuant to those statutes by ignoring and thereby ratifying the known failures of PHA employees to comply with the above-cited federal statutes, regulations, and constitutional norms.
The full text of § 1983 is as follows:
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 redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.42 U.S.C. § 1983.
In their motion, defendants argue that as a matter of law judgment should be granted in favor of the individual defendants in their official capacities because those claims are redundant of those brought against PHA. They further argue that judgment should be granted in favor of PHA because plaintiff has not produced even a scintilla of evidence to demonstrate that the alleged violations of her federal constitutional and statutory rights resulted from a municipal policy or custom. Similarly, they contend that their motion should be granted as regards defendant Greene because plaintiff has produced no evidence indicating that he was personally involved in the alleged violations. Finally, defendants postulate that plaintiff cannot as a matter of law maintain a § 1983 suit against any of the defendants based on a violation of the Uniform Relocation Assistance and Real Property Acquisition Policies Act and the regulations promulgated thereto. The court will address each of these arguments below.
A. Liability of All Individual Defendants in their Official Capacities
Because these claims are redundant of plaintiff's claim against PHA, the court will enter summary judgment in favor of the individual defendants in their official capacities.
The Supreme Court has explained that "the real party in interest in an official-capacity suit is the government entity itself and not the named official." Hafer v. MeIo, 502 U.S. 21, 25 (1992); see Brandon v. Holt, 469 U.S. 464, 471-72 (1985) ("[J]udgment against a public servant `in his official capacity' imposes liability on the entity that he represents. . . ."). Because "official-capacity suits generally represent only another way of pleading an action against an entity of which the officer is an agent," Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 691 n. 55 (1978), it is appropriate to dismiss the claims against the individual in his official capacity and, if viable, retain the claim against the real party in interest. See McCachren v. Blacklick Valley School District, 217 F. Supp.2d 594, 599 (W.D. Pa. 2002) (dismissing official capacity actions for this reason involving claims under the IDEA, the Rehabilitation Act, § 1983, and the Fourteenth Amendment); Doby v. Decrescenzo, 1996 WL 510095, at *26 (E.D. Pa. Sept. 9, 1996) (finding that such claims "merge" and thus dismissing the official capacity claims). In the instant case, defendant PHA is the real party in interest, as opposed to defendants Greene, Carter, and Stephens in their official capacities.
Therefore, based on the reasoning above, I will grant summary judgment as to all claims against defendants Greene, Carter, and Stephens in their official capacities.
B. Liability of Defendant Greene in his Individual Capacity
Because plaintiff has failed to produce any evidence that defendant Greene was personally involved in the alleged violations of Plaintiff's federal constitutional and statutory rights, the court will grant summary judgment in defendant Greene's favor with regard to Plaintiff's claims against him in his individual capacity.
In order to be liable for a § 1983 violation, an individual defendant must have been personally involved in the deprivation of the Plaintiff's rights. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). A supervisor's personal involvement maybe shown by establishing that the supervisor had actual knowledge of, and acquiesced in, the deprivation. Robinson, 120 F.3d at 1294. It is not sufficient, however, for a plaintiff to allege that an individual had constructive knowledge of his or her subordinates' unconstitutional conduct simply by virtue of his or her supervisory position. Regan v. Township of Lower Merion, 1999 WL 999381 at *5 (E.D.Pa. Oct. 28, 1999) ("[C]onstructive knowledge by virtue of being the supervisor of subordinates who may have actual knowledge is not sufficient to support liability under § 1983."); DeBeIlis v. KuIp, 166 F. Supp.2d 255, 277 (E.D.Pa. 2001) ("The fact that [defendants] are in supervisory positions does not, standing alone, establish their liability."); see e.g., Rode, 845 F.2d at 1208 (holding that grievances actually filed with the Governor's office were "insufficient to show that [he] had actual knowledge of [the Plaintiff's] alleged harassment" and noting that "a contrary holding would subject the Governor to potential liability in any case in which an aggrieved employee merely transmitted a complaint to the Governor's [O]ffice of [A]dministration. . . ."); Andrews v. City of Philadelphia, 895 F.2d 1469, 1479 (3d Cir. 1990) (holding that supervisory liability applied where "it would be incomprehensible" for the supervisor not to have noticed the misconduct and "impossible for [him] to contend that he overlooked" such misconduct). Indeed, to hold otherwise would arguably vitiate the distinction between liability based on a theory of personal involvement and that based on a theory of respondeat superior, thereby undermining the holding of Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978); namely, that one "cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691.
In the instant case, plaintiff has offered no evidence that defendant Greene had any personal knowledge of the alleged violations of her federal constitutional and statutory rights. While plaintiff states in her brief that "Defendant Greene as Executive Director of the PHA is responsible for the actions of those individuals employed with PHA," this is nothing other than an allegation of respondeat superior liability. Pl. Br. At 18. She further argues that "Defendant Greene approves all the PHA policies regarding relocation and admission into the Section 8 program in his capacity as Executive Director" and that "any deviation from those policies is subject to approval only by the Executive Director." Id. A rational juror could not infer from these facts, if they were proved, that defendant Greene would have known of Plaintiff's situation.
For these reasons, defendants' motion will be granted as to Plaintiff's claims against defendant Greene in his individual capacity. C. Liability of the PHA
Because plaintiff has failed to raise an issue of material fact to demonstrate that the alleged violations of her federal rights resulted from PH A's policies or customs, the court will grant summary judgment in PHA's favor.
In Monell, the Supreme Court held that while a municipality may not be held vicariously liable for the unconstitutional actions of its agents, it maybe held directly liable where the agents' unconstitutional conduct was the result of a municipal policy or well-established custom. Id. at 690-91. Since Monell, the Court and our Court of Appeals have specifically defined that which may constitute a city's policy or custom. Relevant to the instant action, both courts have held that "[i]f . . . authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final." City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality); see also Andrews, 895 F.2d at 1481 (citing same as the basis for holding that the defendant Police Commissioner did not ratify the discriminatory actions of his subordinates because he "personally did not observe or acquiesce in any sexual harassment, and he was not convinced that the AID decisions were motivated by sexual animus").
There are other numerous ways to prove such a policy or custom, none of which are raised by the parties in the instant action. These include: (1) actions by municipal legislative bodies, Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986); (2) actions by municipal agencies or boards that exercise authority delegated by the municipal legislative body, Monell, 436 U.S. at 691; (3) policies of inadequate training or supervision, City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989); and (4) a custom that has not been formally approved but is a recognizable practice, Monell, 436 U.S. at 690-91; Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986).
The court must look to state law to determine whether an individual is a final decision-maker for purposes of this inquiry. Praprotnik, 485 U.S. at 123.
In the instant case, plaintiff does not argue that PHA's written policies or customs are unconstitutional. Indeed, throughout her brief, she favorably cites to the agency's policy regarding transferring tenants. See Pl. Brief at 7-10 (discussing the PHA Tenant Relocation Plan for Tasker Homes, the PHA Section 8 Administrative Plan, and the PHA Section 8 Desk Manual). Instead, her argument appears to be that the individual defendants, all of whom are PHA officials, failed to correct their subordinates when those individuals-none of whom are listed as defendants-neglected to comply with these policies. By so doing, the individual defendants allegedly ratified these unconstitutional acts, thereby establishing a municipal policy. Plaintiff, however, has failed to allege, argue, or present evidence that any of these individuals was a final decision-maker of municipal policy, much less that they knew of and acquiesced in any unconstitutional actions. Her only argument to this effect is that these defendants must have known by virtue of their positions in PHA, which, as discussed above, does not meet her burden of proof. See supra Section B.
For these reasons, summary judgment will be granted in favor of defendant PHA.
D. Liability of Defendants Carter and Stephens Under § 1983 for Violations of the Uniform Relocation Assistance and Real Property Acquisition Policies Act and Regulations Promulgated Thereto
Defendants make this argument with regard to all defendants, but since the court will grant summary judgment for defendants Greene and PHA on other, previously discussed grounds, I will only consider this argument as to the two remaining defendants, Carter and Stephens.
Because plaintiff does not have an enforceable federal right regarding damages caused by defendants based on either 42 U.S.C.A. § 4601 et seq. or the regulations promulgated thereto, and can therefore not maintain a § 1983 action for violation of such statute or regulations, the court will enter summary judgment in favor of defendants Carter and Stephens with regard to the § 1983 claims based on 42 U.S.C.A. § 4601 et seq. and 24 C.F.R. § 968.108.
It is well settled that a violation of a federal statutory right may be vindicated pursuant to § 1983. Maine v. Thiboutot, 448 U.S. 1, 6-8 (1980); South Camden Citizens in Action v. New Jersey Dept. of Environmental Protection, 274 F.3d 771, 779 (3d Cir. 2001). This is not the case, however, where "Congress has foreclosed such enforcement of the statute in the enactment itself . . . [or] the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983." Wright v. City of Roanoke Redevelopment Hous. Auth., 479 U.S. 418, 423 (1987).
If a statute does not create a right, it is equally well established that such cannot be created via regulation. To use the Supreme Court's eloquent words:
Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself.Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (citations omitted). However, a fine distinction has been made between regulations which have the effect of creating a right and those which merely interpret and/or define a statutorily created right. See South Camden, 274 F.3d at 782-83 (explaining that the Supreme Court in Wright did not recognize an enforceable federal right that appears only in a regulation, but rather "located the alleged right in the statutory provision and then relied upon the implementing regulations to define and interpret that right," and distinguishing the situation in Wright from the facts of South Camden). While the latter regulations are acceptable and enforceable federal rights according to the Third Circuit, the former regulations are not.
In the instant case, defendants argue that neither the Uniform Relocation Assistance and Real Property Acquisition Policies Act ("the Act"), 42 U.S.C. § 4601 et seq., nor any regulations promulgated thereto, creates an enforceable federal right upon which plaintiff can base a § 1983 claim. Specifically, defendants argue that (1) 42 U.S.C.A. § 4622, which provides for relocation assistance to displaced persons, does not apply to temporary displacements, such as that which plaintiff suffered, and hence plaintiff does not have an enforceable federal right, and (2) the regulation which does apply to relocation assistance for temporary displacements, 24 C.F.R. § 968.108 ("the regulation"), cannot create a federal right for plaintiff to seek redress for her alleged damages. Hence, it is necessary to determine if the Act explicitly creates an enforceable right for plaintiff, and if so, if the regulation extending coverage to plaintiff implements statutory authorizations of the Act without exceeding them.
1. Does the Act Create an Enforceable Federal Right?
Because it is clear that Congress did not intend 42 U.S.C. § 4622 to benefit the plaintiff, an enforceable federal right was not created for the plaintiff, and hence § 1983 cannot be used to vindicate a violation of such statute. Therefore, the court dismisses Plaintiff's § 1983 claim based on 42 U.S.C. § 4601 et seq.
In order to determine whether a statute creates an enforceable right, the plaintiff must satisfy the following three-part test: 1) Did "Congress . . . intend that the provision in question benefit the plaintiff;" 2) Is "the right assertedly protected by the statute not so `vague and amorphous' that its enforcement would strain judicial competence;" and 3) Are the statute's terms unambiguously "couched in mandatory, rather than precatory, terms?" Blessing v. Freestone, 520 U.S. 329, 340-41 (1997). Plaintiff in the instant case is unable to satisfy the first prong of this test.
Plaintiff points to 42 U.S.C. § 4622 as the source of her federal right to relocation assistance, i.e. reimbursement for out-of-pocket expenses incurred as a result of her displacement. This section of the Act reads in pertinent part, "Whenever a program or project to be undertaken by a displacing agency will result in the displacement of any person, the head of the displacing agency shall provide for the payment to the displaced person of [inter alia] actual reasonable expenses in moving himself, his family . . . or other personal property. . . ." 42 U.S.C. § 4622(a) (emphasis added). The application of this section is limited, however, by the definition of "displaced person" for the Act, as provided in § 4601. 42 U.S.C. § 4601(6). The relevant portion of this definition reads:
The term "displaced person" means, except as provided in subparagraph (B) — (i) any person who moves from real property, or moves his personal property from real property — . . . (II) on which such person is a residential tenant or conducts a small business, a farm operation, or a business defined in section 101(V)(D), as a direct result of rehabilitation, demolition, or such other displacing activity as the lead agency may prescribe, under a program or project undertaken by a Federal agency or with Federal financial assistance in any case in which the head of the displacing agency determines that such displacement is permanent; . . .42 U.S.C. § 4601(6) (emphasis added). It is undisputed that Plaintiff's displacement was only to be temporary, as opposed to permanent. See Pl. Br. at 2 (explaining that Plaintiff's relocation was only to last "until the modernization project was completed"). As such, plaintiff does not fit the definition of a "displaced person." It is clear, then, that Congress did not intend § 4622 to benefit plaintiff. Plaintiff therefore fails the Blessing three-part test, and cannot be said to have an enforceable federal right.
Hence, § 1983 is unavailable to plaintiff as an avenue to seek redress for alleged violations of the Act, and the court will dismiss such all actions.
2. Does the Regulation Create an Enforceable Federal Right?
Because the right alleged by plaintiff does not explicitly appear in the Act, but rather only appears in the regulation, and a regulation alone cannot create an enforceable federal right, plaintiff does not have an enforceable federal right, and hence § 1983 cannot be used to vindicate a violation of such regulation. Therefore, the court dismisses Plaintiff's § 1983 claim based on 24 C.F.R. § 968.108.
In South Camden, the Third Circuit held that "a federal regulation alone may not create a right enforceable through section 1983 not already found in the enforcing statute." 274 F.3d at 790. The court also went on to explicitly "reject the argument that enforceable rights may be found in any valid administrative implementation of a statute that in itself creates some enforceable right." Id. The court distinguished the case before it from Wright, explaining that the Supreme Court in Wright "located the alleged right in the statutory provision and then relied upon the implementing regulations to define and interpret that right." Id. at 783. As in South Camden, the alleged right in the instant case cannot be found in the enforcing statute, the Act. If the definition of "displaced person" in § 4601 was not limited to persons who are permanently displaced, and if § 4622 was not limited solely to "displaced persons," plaintiff would be able to make the argument that the regulation simply defines or interprets the Act. However, such is not the case.
The regulation in question, 24 C.F.R. § 968.108, provides for "[r]eimbursement for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including the cost of moving to and from the temporary housing and any increase in monthly rent/utility costs; and . . . [a]ppropriate advisory services. . . ." 24 C.F.R. § 968.108 (emphasis added). Plaintiff cites a number of cases in which a court in this jurisdiction recognized a § 1983 action based on a violation of a housing regulation. However, as in South Camden, the instant case is distinguishable from those previously considered because here "the regulations do more than define or flesh out the content of a specific right conferred upon the plaintifff." 274 F.3d at 790. For example, plaintiff cites Farley v. Philadelphia Hous. Auth., 102 F.3d 697 (3d Cir. 1996), in support of her position. The Third Circuit in Farley, though, explicitly noted that "[Plaintiff's] cause of action arises strictly under [the statute]. Regulation § 966.57(b) merely interprets that section." 102 F.3d at 699. In contrast, 968.108 clearly gives the Act "a scope beyond that Congress contemplated," South Camden, 274 F.3d at 790, as Congress explicitly limited the definition of "displaced person" to those individuals whose "displacement is permanent." 42 U.S.C. § 4601. To extend reimbursement assistance to those merely temporarily displaced is clearly beyond the scope Congress intended when it created the Act.
This is not to say that the regulation providing reimbursement for all reasonable out-of-pocket expenses to those who have been temporarily relocated is invalid. Rather, the court merely finds that 24 C.F.R. § 968.108 does not create rights enforceable under § 1983. Consequently, the court dismisses the § 1983 action based on alleged violations of the regulation.
Conclusion
All summary judgment motions made by defendants will be granted for various reasons. First, summary judgment will be granted in favor of all individual defendants in their official capacities because they are redundant of plaintiff s claims against Philadelphia Housing Authority. Second, the court will grant summary judgment in favor of defendant Greene in his individual capacity because plaintiff has failed to produce any evidence that defendant Greene was personally involved in the alleged violations of plaintiff s rights. Next, summary judgment will be granted in favor of defendant Philadelphia Housing Authority because plaintiff has failed to raise an issue of material fact to demonstrate that the alleged violations of her federal rights resulted from Philadelphia Housing Authority's policies or customs. Finally, the court will grant summary judgment in favor of defendants Carter and Stephens regarding Plaintiff's § 1983 claims for violation of the Uniform Relocation Assistance and Real Property Acquisition Policies Act and regulations promulgated thereto because plaintiff does not have an enforceable federal right under such laws. An appropriate order follows.
Order
And now, ___ this day of September, 2003, upon consideration of the motions for summary judgment of defendants Carl Greene and Philadelphia Housing Authority, and the motions for partial summary judgment of defendants Carolyn Carter and Tania Stephens, the accompanying memorandum of law, defendants' statement of undisputed facts (together, Doc. #26), and Plaintiff's' response in opposition thereto (Doc. #27), it is hereby ORDERED that the defendants' motions are GRANTED. Judgment is ENTERED in favor of Carl Greene and Philadelphia Housing Authority and against plaintiff Rochelle McQueen on all claims. Judgment is also ENTERED in favor of defendants Carolyn Carter and Tanya Stephens and against plaintiff Rochelle McQueen on all claims against said defendants in their official capacity and on all claims arising out of the Uniform Relocation Assistance and Real Property Acquisition Policies Act.It is further ORDERED that trial of the remaining claims against the remaining defendants is scheduled for November 11, 2003 at 10 a.m.