Opinion
EP-99-CA-410-DB.
October 31, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered the following motions filed in the above-captioned cause: (1) a "Motion for Summary Judgment of Defendant Housing Authority of the City of El Paso," filed August 4, 2000; (2) "Defendant Roberto Alvarado's Motion for Summary Judgment," filed August 7, 2000; and (3) Plaintiff's "Motion to Reconsider," filed October 20, 2000.
Plaintiff Fernando Chacon filed a Response on September 18, 2000; Defendant the Housing Authority of the City of El Paso filed a Reply on September 20, 2000; and Plaintiff filed a "Reply to Housing Authority's Reply" and "First Amended Reply to Housing Authority's Reply" on September 29, 2000.
Plaintiff filed a Response on September 18, 2000.
After due consideration, the Court is of the opinion that Defendant Housing Authority of the City of El Paso's ("the Housing Authority") motion should be granted and Defendant Roberto Alvarado's ("Alvarado") motion should be denied, for the reasons that follow. The Court is further of the opinion that Plaintiff's Motion to Reconsider should be denied summarily.
Because an October 30, 2000, trial setting in this cause (which has since been continued) was fast approaching, the Court telephonically informed the Parties of its rulings on the instant motions. Plaintiff's Motion to Reconsider attacks the Court's decision to grant the Housing Authority's motion. The Motion to Reconsider being filed before the issuance of this Memorandum Opinion, however, Plaintiff merely echoes the arguments he raised opposing that motion in the first place. Consequently, the Court need not consider those arguments separately.
BACKGROUND
The Housing Authority of the City of El Paso is a governmental entity organized under Texas Local Government Code sections 392.001 et seq. The Housing Authority maintains various housing "complexes" around El Paso, Texas, to provide affordable housing to low-income individuals and families. Defendant Alvarado was the Executive Director of the Housing Authority from April 1993 to February 2000.Plaintiff Fernando Chacon is an attorney licensed to practice law in the State of Texas and practicing in El Paso. Plaintiff's self-described area of practice is to provide legal services to the poor, particularly residents of the Housing Authority's complexes. To that end, Plaintiff has represented plaintiffs in several lawsuits against the Housing Authority filed in this district. Also, in May 1998, Plaintiff put together a flyer designed to introduce Plaintiff's services to the tenants of the Housing Authority and had the flyer distributed around the grounds of certain Housing Authority complexes by Christina Rivera ("Rivera") and Francisco Reyes ("Reyes"), also El Congresso members. Shortly thereafter, Alvarado allegedly sent letters to Rivera and Reyes on Housing Authority letterhead to inform them that the Housing Authority prohibits distribution of flyers on Housing Authority grounds (regardless of its content) and, furthermore, that the flyers may constitute a violation of Texas law (as an advertisement for a legal services).
Specifically, Plaintiff states that he represented Jesus De La O in cause number EP-98-CA-52-H before the Honorable Harry Lee Hudspeth and Flora Contreras in cause number EP-98-CA-80-F before the Honorable W. Royal Furgeson. The Court notes that Plaintiff also represented Roberto S. Vasquez and Jesus De La O in an unsuccessful suit against the Housing Authority before this Court in cause number EP-00-CA-89-DB.
In addition to his law practice, Plaintiff was a founder of or assisted in the founding of "El Congresso," an organization allegedly composed of tenant councils and dedicated to the protection of tenants' rights. Plaintiff also claims to represent El Congresso as an attorney.
Pursuant to federal law, the Housing Authority organized a "resident council" for each Housing Authority complex — leadership boards composed of residents — and a "President's Council" — composed of the presidents of each resident council (also known as a "jurisdiction-wide resident council"). In June 1998, a meeting of the Presidents' Council took place at the "Machuca" complex. That meeting also was open to all Machuca complex residents. Plaintiff appeared at that meeting, allegedly at the request of Reyes and Rivera. Several Housing Authority employees also attended, including Patricia Esparza ("Esparza"). Maria Calixtro ("Calixtro"), President of the Presidents' Council, asked Plaintiff to leave, and he left without incident, but did so "under protest."
The United States Department of Housing and Urban Development ("HUD") sets forth regulations applicable to housing authorities (as used in the regulations, "HA") throughout the country which receive federal funds. As applicable here, HUD regulations provide as follows:
HUD promotes resident participation and the active involvement of residents in all aspects of a HA's overall mission and operation. Residents have a right to organize and elect a resident council to represent their interests. As long as proper procedures are followed, the HA shall recognize the duly elected resident council to participate fully through a working relationship with the HA. HUD encourages HAs and residents to work together to determine the most appropriate ways to foster constructive relationships, particularly through duly-elected resident councils.24 C.F.R. § 964.11 (2000). "The HA shall officially recognize a duly elected resident council as the sole representative of the residents it purports to represent, and support its tenant participation activities." Id. § 964.18(a)(1).
In no event shall HUD or a HA recognize a competing resident council once a duly elected resident council has been established. Any funding of resident activities and resident input into decisions concerning public housing operations shall be made only through the officially recognized resident council.
Id. § 964.18(a)(7).
(a) Jurisdiction-wide resident council. Resident councils may come together to form an organization which can represent the interest of residents residing in units under a HA's jurisdiction. This can be accomplished by the presidents of duly elected resident councils forming an organization, by resident councils electing a representative to the organization, or through jurisdiction-wide elections. If duly elected resident councils form such an organization, the HA shall recognize it as the voice of authority-wide residents for input into housing authority policy making.
. . . .
(c) Cooperation with other groups. There shall be regularly scheduled meetings between the HA and the local duly elected resident council, and the jurisdiction-wide resident council to discuss problems, plan activities and review progress.
Id. § 964.105(a),(c).
In August 1998, a resident of a Housing Authority complex, Bruce Wayne Adams ("Adams"), complained to the State Bar of Texas ("State Bar") through a written grievance about Plaintiff's activities at Housing Authority complexes. Adams wrote that Plaintiff was improperly soliciting clients through a flyer distributed at various complexes and using certain allegedly disruptive tactics, such as scaring older residents into believing that the Housing Authority would evict them without Plaintiff's assistance. The State Bar conducted an inquiry according to its procedures. Plaintiff alleges that Alvarado was behind the complaint, having suggested that a resident be recruited to make it; recruited Adams; got the Housing Authority attorney, Frank Guzman ("Guzman"), to draft the complaint for Adams to sign; and instructed other Housing Authority employees to state, if asked, that Adams approached the Housing Authority with the gripe and the Housing Authority merely referred Adams to Guzman.
In September 1998, the Housing Authority instituted a "Trespass Policy," which provides, in pertinent part, as follows:
Trespassing. The development premises are for the exclusive use and enjoyment of the residents, members of their households, their guests and visitors, and such other persons who have legitimate business on the premises. . . .
Any person who desires access to any development premises and any person found on the walks, ways, playgrounds, parking lots, drives and other common areas of the development premises will be requested by any law enforcement or [Housing Authority] personnel to identify himself or herself and to prove authority to be on the development premises. Any person who refuses to provide personal identification or cannot show authority to be on the development premises will receive a "trespass warning" ordering the person to leave the development premises or be subject to arrest and prosecution to the extent permitted by state law or municipal ordinance.
Any person observed by law enforcement or [Housing Authority] personnel violating any [Housing Authority] rule, or federal, state or municipal law, regulation, or ordinance will be ordered by law enforcement or [Housing Authority] personnel to leave the development premises.
In December 1998, Plaintiff again appeared at and was asked to leave a Machuca residents' council meeting. Plaintiff left without incident, though he contends that uniformed Housing Authority police appeared to arrest him had he not left on his own.
Plaintiff filed the instant lawsuit in the 41st Judicial District Court of El Paso County, Texas, on November 8, 2000. After Defendants removed the action to this Court, they moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff responded with a "First Amended Complaint," filed January 27, 2000. Later, Plaintiff filed a "Second Amended Complaint" on March 2, 2000, setting forth the following claims: (1) deprivation of rights under color of state law, pursuant to 42 U.S.C. § 1983; (2) conspiracy to interfere with Plaintiff's civil rights, pursuant to 42 U.S.C. § 1985(2); (3) conspiracy to tortiously interfere with Plaintiff's contractual relationships; (4) tortious interference with Plaintiff's contractual relationships; and (5) slander per se; (the last three presumably are stated under Texas common law).
The instant motions followed. Not unpredictably, Plaintiff filed a "Third Amended Complaint" on September 7, 2000. Therein, Plaintiff abandons all claims except for his claim pursuant to § 1983. Accordingly, the Court need not address Defendants' well-briefed arguments as to those claims.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only where "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). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavit, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment.
DISCUSSION
Plaintiff claims Defendants, together, deprived him of a property right under color of law; the Housing Authority claims it cannot be liable for actions of its officers not taken pursuant to official policy; and Alvarado claims qualified immunity from liability for his actions as Executive Director. As pertinent here, § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . 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. . . .42 U.S.C.A. § 1983 (West Supp. 2000).
A. Housing Authority Liability
Although § 1983 facially applies only to "person[s]," local government units can be sued under § 1983 as well. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). Where the direct action of a policymaker, rather than the conduct of subordinates, is involved, the municipality has itself acted. See Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 755 (5th Cir. 1993). However, "a local government unit . . . may not be held liable for a deprivation of a constitutional right solely because its employee is a tort-feasor[;] nor can it be held liable under § 1983 on a respondeat superior theory." Lopez v. Houston Indep. Sch. Dist., 817 F.2d 351, 353 (5th Cir. 1987); see also Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Esteves v. Brock, 106 F.3d 674, 677 (5th Cir. 1997). "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. To survive a motion for summary judgment, then, Plaintiff "must identify and produce some evidence of `(1) a policy (2) of the [Housing Authority's] policymaker (3) that caused (4) the plaintiff to be subjected to a deprivation of constitutional right.'" Lopez, 817 F.2d at 354 (quoting Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir 1987)).
An "official policy" is
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [local government unit]'s lawmaking officers or by an official to whom the lawmakers have delegated policymaking authority; or
2 A persistent widespread practice of [local government unit] officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [local government unit] policy.
Id. at 353 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)) (alterations in original) (emphasis added).
Here, the Housing Authority shows conclusively that its policymaking authority is vested in a "board" of commissioners (the "Board of Commissioners"). See TEX. LOC. GOV'T CODE ANN. § 392.031(a) (Vernon 1999) ("Each Municipal housing authority shall be governed by five, seven, nine, or 11 commissioners."); id. § 392.051(b) ("The powers of an authority are vested in the commissioners of the authority."). Plaintiff makes no argument otherwise.
The Housing Authority further contends that Plaintiff cannot point to a single express policy statement, ordinance, regulation, or decision under which has been implemented and which allegedly injured Plaintiff. In response, Plaintiff points to 24 C.F.R. § 964.105 as that policy, alleging specifically that Calixtro acted under that authority to remove Plaintiff from the meetings pursuant to Alvarado's directions. First, Calixtro is merely a resident and member of a resident council and the Presidents' Council. Even assuming, however, that Calixtro acted on the Housing Authority's behalf, no reading of § 964.105 can support Plaintiff's contention that Calixtro was implementing that regulation when she asked Plaintiff to leave the meeting. Rather, § 964.105 sets forth in very general terms authority for the resident councils to create a jurisdiction-wide resident council — here, the Presidents' Council — and the Housing Authority's obligations respecting such a jurisdiction-wide council. Indeed, that subpart of Part 964 addresses generally, "Tenant Participation," not Housing Authority policy. Furthermore, although the "Trespassing Policy" was in place by the December 1998 meeting, there is no evidence to indicate, and Plaintiff does not so contend, that that policy was being implemented when Chacon was asked to leave the December 1998 meeting. Thus, the Court finds that no "officially adopted and promulgated" policy is involved here.
To avoid that result, Plaintiff further contends that Alvarado's actions constitute de facto "policy" because "Alvarado instituted a policy designed to extinguish the [sic] Chacon's voice." In other words, Plaintiff contends that an alleged "plot" was sufficiently widespread and accepted to "fairly represent" the Housing Authority's "official policy." In support, Plaintiff submits an affidavit of Martha Rodriguez ("Rodriguez"), a former Housing Authority employee. To begin with, the Court finds the Rodriguez affidavit substantially incompetent as summary judgment evidence. Although she "make[s the] statement under penalty of perjury and swear[s] and affirm[s] that the [items contained in the affidavit] are true to the best of [her] knowledge," Rodriguez never affirmatively avers that she has personal knowledge of the statements therein, which is required. See FED. R. CIV. P. 56(e). Moreover, the Rodriguez affidavit is chock-full of hearsay and conclusory statements, as well as statements substantially lacking any obvious or stated factual basis for personal knowledge, which the Court need not consider. See id.; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 504 (5th Cir. 1999) (noting admissibility requirements of summary judgment evidence same as trial evidence); Ragas v. Tennesee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (emphasizing that unsubstantiated assertions in affidavits not competent summary judgment evidence); Leonard v. Dixie Well Serv. Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987) ("Affidavits must be based on personal knowledge, setting forth facts admissible in evidence."). Even generously construing Rodriguez's affidavit, however, the Court finds no indication therein that, even if Alvarado had formed such a "plot" as alleged, that such a plot was sufficiently persistent and widespread to constitute Housing Authority "official policy."
Although the Court need not consider such inadmissible evidence, see Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1123 (5th Cir. 1988), Defendants apparently waive any objection. See Eguia v. Tompkins, 756 F.2d 1130, 1136 (5th Cir. 1985). Also, buried within seven pages of inadmissibility are various admissible statements.
Finally, Plaintiff argues that because the Housing Authority has given Alvarado, as Executive Director, discretion to carry out certain acts without prior approval of the Board of Commissioners, Alvarado thereby is a "policymaker." Indeed, Texas law allows the Board of Commissioners to "delegate a power or duty to an agent or employee as it considers proper." 24 C.F.R. § 392.051(c). That does not necessarily mean, however, that Alvarado thereby is a "final policymaker." See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 n. 12, 106 S.Ct. 1292, 1299-1300 n. 12, 89 L.Ed.2d 452 (1986) (plurality) (distinguishing between exercise of discretion by particular official and discretion of policymaking authority lodged in that official). "The fact that a particular official — even a policymaking official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion." Id. at 481-82, 106 S.Ct. at 1299. "[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Id. at 483-84, 106 S.Ct. at 1300 (emphasis added). Even if Alvarado did have some final decision-making discretion in a few unrelated areas, that unrelated discretion means nothing here. Also, Plaintiff presents no competent evidence to demonstrate what authority the Board of Commissioners delegated to Alvarado in general, not to mention discretionary powers related to the claims Plaintiff makes in this case. Accordingly, the Court finds no persistent practice sufficiently widespread to constitute official policy with respect to Alvarado's delegated authority.
Although Plaintiff attaches exhibits purportedly containing deposition transcript excerpts setting forth Alvarado's testimony, the Court notes that those excerpts are not properly authenticated. See FED. R. EVID. 901. Notwithstanding that testimony — that he was authorized to act on certain legal matters without the commissioners' approval but not on certain real estate matters — bears no implication that the Board of Commissioners delegated to Alvarado so much authority that he can be considered a "policymaker," much less a "final policymaker."
There being no disputed facts as to official policy, and the Housing Authority having demonstrated that Plaintiff cannot sustain the first two elements of the § 1983 prima facie showing, the Court need not consider the remaining elements. Thus, after due consideration, the Court is of the opinion that the Housing Authority is entitled to judgment as a matter of law as to all of Plaintiff's claims, and that summary judgement is appropriate as to the Housing Authority.
B. Roberto Alvarado — Qualified Immunity
Alvarado moves for summary judgment on the sole issue of whether he is entitled to qualified immunity. Plaintiff claims, first, that Alvarado has procedurally waived the defense by failing to present his summary judgment motion in a timely manner. Second, Plaintiff claims that Alvarado knowingly violated a constitutional right clearly-established under Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979).
The Court notes that Alvarado purports to ask for immunity in his official capacity. Such immunity, however, is available only in his individual capacity. See Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1419, 63 L.Ed.2d 673 (1980) ("The official . . . may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole."); id. at 638 n. 18, 100 S.Ct. at 1409 n. 18 (holding that municipality cannot benefit from officers' qualified immunity); see also Feasel v. Willis, 904 F. Supp. 582, 584 (N.D.Tex. 1995) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990)); cf. Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 1699, 143 L.Ed.2d 818 (1999) (referring to "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful action").
Relatedly, the Parties do not distinguish at all between Alvarado in his individual capacity and Alvarado in his official capacity with respect to the instant motions. Having already decided to dismiss Plaintiff's claims against the Housing Authority, are those claims thereby dismissed against Alvarado in his official capacity as well? The Parties do not address this issue. Notwithstanding, and having reviewed the authorities set forth above, the Court is of the opinion that Alvarado cannot be liable in his official capacity without the Housing Authority also being liable. Accordingly, Alvarado in his official capacity is entitled to summary judgment.
A. Procedural Waiver
Plaintiff first contends that Defendant missed the deadline for asserting his qualified immunity defense set forth in Local Court Rule CV-12. That rule provides, in pertinent part:
In any case filed pursuant to 42 U.S.C. § 1983, or involving causes of action in which the defense of qualified . . . immunity may be asserted, the party . . . asserting the defense shall file a motion to dismiss or for summary judgment in their initial pleading or within thirty calendar days of their initial pleading, or, if asserted in response to allegations made by amended complaint, within twenty days of the date the amended complaint was filed.
Here, Plaintiff does not point to any authority to support his contention that Alvarado has waived his immunity defense. The sole authority Plaintiff cites, Martin v. Thomas, 973 F.2d 449, 458-59 (5th Cir. 1992), is inapposite. In Martin, the court found that the defendants waived their immunity defense by failing to object within ten days, as required under 28 U.S.C. § 636(b)(1), to a magistrate judge's recommendation that the defense be denied. See id. at 459. Although the immunity determination should be made "at the earliest possible stage of a litigation," Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L. Ed.2d 523 (1987), Martin simply does not support Plaintiff's contention that Alvarado's noncompliance with Local Rule CV-12 should constitute waiver, abrogating the important policy underlying the immunity, namely protecting the public by permitting its decision-makers to act without fear of unanticipated personal liability. See, e.g., Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L.Ed.2d 895 (1978) (analyzing history, nature and purpose of immunity).
Moreover, although Alvarado did not file his summary judgment motion until August 7, 2000, nearly eight months after removal, various procedural hurdles not entirely outside of Plaintiff's control weigh against any waiver. First, Plaintiff is on his fourth complaint, filed while the instant motions have been pending. Meanwhile, Defendants substituted counsel several times, presumably due to complications not unusual in § 1983 causes against municipalities and their officials. Moreover, as far back as February, Alvarado notified Plaintiff that he (Alvarado) would assert the qualified immunity defense through a February 16, 2000, "Unopposed Motion . . . to Extend Time for Filing of Answer Raising Immunity Defenses," which the Court granted by Order entered that same day. Defendants filed that motion in part because they anticipated Plaintiff shortly thereafter would file his Second Amended Complaint, which he did on March 2, 2000. Through a timely Answer to that Second Amended Complaint, Alvarado set forth a qualified immunity affirmative defense. Although Alvarado did not move for summary judgment immediately thereafter, Plaintiff does not contend he has been prejudiced by any delay and never once prompted Defendant to comply with Local Rule CV-12. Indeed, the Court notes that Local Rule CV-12 is designed to expedite a ruling on the qualified immunity claim because qualified immunity is a threshold issue designed to protect public officials from suit, not merely liability. See Mangieri v. Clifton, 29 F.3d 1012, 1015 (5th Cir. 1994). Accordingly, the Court finds that Alvarado has not waived his qualified immunity.
B. Alvarado's Entitlement to Immunity
Qualified immunity is an affirmative defense on which Alvarado bears the burden of proof. See Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). The analysis is two-fold, with several parts. See Mangieri, 29 F.3d at 1016; see also Kipps v. Caillier, 197 F.3d 765, 768-69 (5th Cir. 1999) (breaking down first step into three parts). A court must determine (1) "whether the asserted constitutional injury involved a clearly established right at the time of the unfortunate event," Mangieri, 29 F.3d at 1016 (quoting Hare v. City of Corinth, 22 F.3d 612, 614 (5th Cir. 1994)); and (2) "whether the official's actions were objectively reasonable . . . in light of legal rules clearly established at the time of the incident." Id. (citing Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. at 3038; Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)) (citation removed). The first inquiry is further broken-down into three parts:
"First, a court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of a constitutional right at all." Second, the court must "determine whether that right was clearly established at the time of the alleged violation." Finally the court "must determine whether the record shows that the violation occurred, or at least gives rise to a genuine issue of material fact as to whether the defendant actually engaged in the conduct that violated the clearly-established right."
Kipps, 197 F.3d at 768 (quoting Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1697, 143 L.Ed.2d 818 (1999); Morris v. Dearborne, 181 F.3d 657, 666 (5th Cir. 1999)) (emphasis added) (citations omitted).
Here, Alvarado seems to be in a bit of a pickle. On the one hand, other than the boiler-plate denials set forth in his Answer to Plaintiff's Third Amended Complaint, Alvarado does not dispute any of the facts Plaintiff alleges through his Third Amended Complaint, for to do so would be to create that underlying factual dispute which could preclude summary judgment. On the other hand, Alvarado not having disputed Plaintiff's allegations, the Court is left to determine in the context of all of Plaintiff's factual allegations, which he supports with evidence — albeit arguably improper evidence — and, in a light most beneficial to Plaintiff, whether Alvarado's conduct was objectively reasonable. Although the "first step" of the substantive immunity analysis involves determining whether there is any established constitutional injury, the first step of any summary judgment motion requires the moving party to show that there is no genuine dispute about any material fact and that that party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, 45 F.3d at 954 (emphasis added). Quite frankly, the Court doubts Alvarado has met his burden on summary judgment. Notwithstanding, the Court entertains Alvarado's immunity claim on its merits.
Here, Defendant does not address Plaintiff's alleged constitutional injuries in substantial detail or analysis. Instead, Alvarado assaults each of Plaintiff's alleged constitutional injuries factually. For example, Alvarado argues with respect to Plaintiff's claim that Alvarado caused Adams to file a grievance against Plaintiff that "[t]here is no showing that any grievance filed by a resident was untrue or unsupported factually." Similarly, with respect to Plaintiff's claim that he was improperly removed from the June and December 1998 meetings, Alvarado contends that "[i]n a most liberal reading of Plaintiff's allegations, he simply was not allowed to be present at a meeting of the members of a resident council." While perhaps all true, the factual shortcomings of Plaintiff's proof for his § 1983 claim do not thereby render the alleged constitutional harms either unasserted, unestablished or not proved by the record, which are the foci of the three-part first step. Significantly, Alvarado does not contend that he did not plot to injure Plaintiff's property interest in his law practice or status as a lawyer by convincing Adams to file a grievance against Plaintiff and by not allowing Plaintiff to meet with his alleged clients at the June and December 1998 meetings; cf. Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979) (non-interference with lawyer's meetings with clients); or by convincing one of Plaintiff's clients to sever their attorney-client relationship. Cf. Vander Zee v. Reno, 73 F.3d 1365 (5th Cir. 1996) (right to hold specific private employment). Assuming, without deciding, that these things state a constitutional harm clearly established, Alvarado simply fails to make any showing that the violations did not occur under the current record in this case. Presumably, then, those events that Plaintiff alleges took place, for purposes of this motion, actually happened.
Even if Alvarado violated Plaintiff's clearly established constitutional rights, however, Alvarado is still entitled to qualified immunity if his actions were objectively reasonable, the second inquiry. See Kipps, 197 F.3d at 769. "`Objective reasonableness is a matter of law for the courts to decide, not a matter for the jury.'" Id. (quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). Thus, a court may not deny summary judgment simply because reasonableness is the standard. See id.; but see Goodson v. City of Corpus Christi, 202 F.3d 730, 739 (5th Cir. 2000) (citing Johnston v. City of Houston, 14 F.3d 1056 (5th Cir. 1994) ("The district court cannot draw conclusions of law from disputed facts at the summary judgment phase."); id. (quoting Johnston, 14 F.3d at 1061) (noting that where "a genuine dispute as to the material and operative facts of th[e] case exists, [s]ummary judgment is inappropriate unless [the] plaintiff's version of the violations does not implicate clearly established law" (second alteration original) (ellipses removed)).
"[C]onduct is not objectively reasonable when `all reasonable [housing authority directors] would have realized the particular challenged conduct violated the constitutional provisions sued on.'" Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (quoting Pierce v. Smith, 117 F.3d 866 (5th Cir. 1997)). Stated another way, "[i]f reasonable public officials could differ on the lawfulness of the defendant's actions, the defendant is entitled to qualified immunity." Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994) (quoting Pfannstiel, 918 F.2d at 1183) (internal quotation marks excised).
Here, on this record, the Court does not find Alvarado's conduct objectively reasonable. To begin with, Alvarado allegedly designed a scheme to rid the Housing Authority of Plaintiff, who had filed several lawsuits against the Housing Authority. He was a "thorn" in the Housing Authority's and Alvarado's "side." Consequently, Alvarado allegedly recruited Adams to file a grievance against Plaintiff with the State Bar. "He could be disbarred," Alvarado allegedly repeated, indicating that he desired some sort of injury to Chacon. Although the Supreme Court some time ago eliminated any subjective component from this immunity inquiry, see Harlow v. Fitzgerald, 457 U.S. 800, 815-16, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982), surely no reasonable official in Alvarado's position would believe that his conduct was lawful or would not cause any injury to both Plaintiff's attorney-client relationships and status as an attorney. That was the point of the plot, allegedly to get Chacon disbarred. For similar reasons, Alvarado's alleged use of others to carry out the alleged plot, namely certain helpful tenants, further demonstrates the objectively unreasonable nature of Alvarado's conduct. Later, Alvarado allegedly suggested that Housing Authority employees should get their story straight, telling anyone who asked that Adams came to them with his gripe and they merely referred Adams to the Housing Authority attorney. Similarly, Alvarado allegedly covertly orchestrated Plaintiff's ouster from the 1998 meetings. The Court finds that such conduct demonstrates that any reasonable housing authority director would know that actions taken against a problem individual through covert means likely will harm that person, including harm to that person's constitutionally protected rights. Accordingly, the Court is of the opinion that Alvarado is not entitled to summary judgment with respect to his qualified immunity defense.
Accordingly, IT IS HEREBY ORDERED that the "Motion for Summary Judgment of Defendant Housing Authority of the City of El Paso" is GRANTED.
IT IS FURTHER ORDERED that "Defendant Roberto Alvarado's Motion for Summary Judgment" is DENIED.
IT IS FURTHER ORDERED that Plaintiff's "Motion to Reconsider" is DENIED.
IT IS FURTHER ORDERED that Plaintiff's claims against Defendant the Housing Authority of the City of El Paso are DISMISSED WITH PREJUDICE.
IT IS FINALLY ORDERED that Plaintiff's claims against Defendant Roberto Alvarado in his Official Capacity are DISMISSED WITH PREJUDICE.