Opinion
Civil Action No. 3:98-CV-1763-BH
February 24, 2004
ORDER
Before the Court are:
(1) Plaintiffs' Motion for Partial Summary Judgment (P.'s MSJ"), filed October 14, 2003;
(2) Plaintiffs' Brief in Support of Motion for Partial Summary Judgment ("P.'s MSJ B.R. ") filed October 14, 2003;
(3) Plaintiffs' Appendix in Support of Plaintiffs' Motion for Partial Summary Judgment ("P `s MSJ Appx."), filed October 14, 2003;
(4) Defendant City of Dallas' Response to Plaintiffs' Motion for Partial Summary Judgment ("Def.'s Resp."), filed November 3, 2003;
(5) Defendant's Brief in Support of City of Dallas' Response to Plaintiffs' Motion for Partial Summary Judgment ("Def.'s Resp. Br."), filed November 3, 2003;
(6) Appendix in Support of Defendant's Response to Plaintiffs' Motion for Partial Summary Judgment ("Def.'s Resp. Appx."), filed November 3, 2003;
(7) Plaintiffs' Reply Brief in Support of Plaintiffs' Motion for Partial Summary Judgment ("P `s Reply"), filed November 18, 2003;
(8) Defendant City of Dallas' Motion for Summary Judgment ("Def.'s MSJ"), filed November 14, 2003;
(9) Brief in Support of City of Dallas' Motion for Summary Judgment ("Def.' s MSJ Br."), filed November 14, 2003;
(10) Appendix in Support of Defendant's Motion for Summary Judgment ("Def.'s MSJ Appx."); filed November 14, 2003;
(11) Plaintiffs' Response in Opposition to City's Motion for Summary Judgment ("P.'s Resp."), filed December 4, 2003;
(12) Plaintiffs' Brief in Support of Plaintiffs' Response in Opposition to the City's Motion for Summary Judgment ("P.'s Resp. Br."), filed December 4, 2003;
(13) Plaintiffs' Appendix in Support of Plaintiffs' Response in Opposition to the City's Motion for Summary Judgment ("P.'s Resp. Appx."), filed December 4, 2003; and
(13) City of Dallas' Reply to Plaintiffs' Response in Opposition to the City's Motion for Summary Judgment, filed December 19, 2003.
Having reviewed the pertinent pleadings and the law applicable to the issues raised, the Court finds that Plaintiffs' Motion for Partial Summary Judgment should be DENIED, and Defendant City of Dallas' Motion for Summary Judgment should be GRANTED, in part and DENIED, in part.
I. BACKGROUND A. Factual History
The background facts are not disputed by the parties.
Plaintiffs are homeowners in a residential neighborhood adjacent to a landfill located at 523 Deepwood Street, Dallas, Texas ("Deepwood site"). (Pl.'s MSJ Appx. at 1299.) The Deepwood neighborhood was annexed by the City on August 6, 1956, and was zoned R-7.5 (Residential). (Def.'s MSJ Appx. at 742.) On March 20, 1963, the City granted permission to locate an office building at the Deepwood site for a non-conforming sand and mining operation. (Def.'s MSJ Appx. at 742.) A certificate of occupancy ("CO") was issued on August 16, 1963, for a gravel pit at the Deepwood site on the basis that the use was non-conforming. ( Id. at 742.) A portion of the Deepwood site was zoned Industrial-2, and Specific Use Permit ("SUP") 182 was issued for a mining operation adjacent to the residential neighborhood, on March 30, 1965. ( Id. at 677.)
The 1970 U.S. Census showed that the residents of the Deepwood neighborhood were predominately white, non-Hispanic. ( Id. at 5-6.) Plaintiffs purchased homes in the neighborhood between 1970 and 1978. (Pl.'s MSJ Appx. at 721, 724, 730, 739-40, 743, 750, 756.) By 1980, the U.S. Census indicated that the residents of the neighborhood were predominately African-American. (Def.'s MSJ Appx. at 5-6.)
As early as 1976, there was open dumping of solid waste at the Deepwood site. See Cox v. City of Dallas, 256 F.3d 281, 285 (5th Cir. 2001). At that time, officials from the City and the state visited the site and called for continuing surveillance. Id.
From 1982 through 1992, the Deepwood site was owned by Terry Van Sickle, owner of V.V. Construction Co. (Pl.'s MSJ Appx. at 959.) On March 16, 1982, V.V. Construction Co. submitted a permit application for removal of sand and gravel from the Deepwood site. ( Id. at 25.) The application stated that the old pits were to be filled with solid waste, meaning "all putrescible and non putrescible discarded materials or unwanted rock, dirt, metal, sand gravel wood etc." ( Id.) On April 6, 1982, V.V. Construction Co. was issued a CO for mining of sand and gravel at the Deepwood site. ( Id. at 26.)
On November 22, 1982, one of the plaintiffs in this action filed a complaint with the City, alleging massive illegal dumping at the Deepwood site. ( Id. at 3.) The City's response to the complainant indicates that a citation to municipal court had been issued to the owner of the property on November 11, 1982, for conducting a sanitary landfill operation in R-7.5 zoning. ( Id. at 4.) Subsequent reinspections revealed no additional illegal dumping as of December 9, 1982. ( Id.) However, Plaintiffs continued to complain at City Council meetings regarding the Deepwood site. ( Id. at 6-21, 52.)
In response to a request regarding the residents' concerns, the Assistant City Manager issued a memorandum to the mayor and city council dated February 4, 1983. ( Id. at 52.) The memorandum indicates that Terry B. Van Sickle, the owner of the Deepwood site, was fined for operating a sanitary landfill on the site and that illegal dumping at the site had ceased. ( Id.) It appears that the residents' complaints continued, and a subsequent memorandum from a City employee to a City Councilwoman was issued on May 18, 1983. ( Id. at 51.) That memorandum reported that no contaminants were found in the soil or water table at the Deepwood site and that continued monitoring of the site was to take place every four to six months for five years. ( Id.) Despite these assurances, residents of the neighborhood continued to complain to the City that trash was being disposed of at the site. ( Id. at 69-70.)
The City of Dallas Board of Adjustment held a hearing on July 26, 1983, to consider whether to terminate the nonconforming sand and gravel mining operation at the Deepwood site. ( Id. at 67.) The morning of the hearing, the board members inspected the site. ( Id. at 82.) In preparation for the inspection, Mr. Van Sickle caused the trash at the site to be moved and covered with dirt. ( Id. at 91.) At the hearing, Mr. Van Sickle testified that he had removed a considerable amount of debris from the site, and that he planned to mine gravel for two more years and fill the hole for another three years. ( Id. at 79.) Letters from residents expressing opposition to continued mining at the site were sent to the Board of Adjustment, but none of the residents attended the meeting. ( Id. at 68-70.) At the conclusion of the hearing, the Board of Adjustment voted to take no action terminating the nonconforming use and to call another hearing in nine months. ( Id. at 71.) There is no indication in the record that the issue of terminating the mining operation at the Deepwood site was ever again considered by the Board of Adjustment.
During the time Mr. Van Sickle owned the Deepwood site, two city demolition contractors used the Deepwood site to dump loads of debris. ( Id. at 98-99, 963.)
Illegal dumping continued at the Deepwood site, and in 1987, the City sued Mr. Van Sickle, VV Construction Co., and Samson Horrice for operating an illegal solid waste facility or municipal solid waste site. (Def.'s MSJ Appx. at 120.) On December 29, 1989, the City obtained a judgment against those defendants for operating an illegal municipal solid waste disposal site. (Pl.'s MSJ Appx. at 40-46.) The judgment ordered those defendants to cease the disposal of municipal solid waste at the Deepwood site and to submit and implement a plan to close the site. ( Id. at 43-44.)
An inspection of the Deepwood site was conducted by the Bureau of Solid Waste Management of the Texas Department of Health on April 22, 1991. (Pl.'s MSJ Appx. at 1164-66.) The inspectors reported continued unauthorized dumping and no efforts to clean up the site as required by the December 29, 1989 judgment. ( Id.) The inspection report indicates that the City was informed of the failure to clean up the site. ( Id.)
On November 21, 1991, the City moved for contempt against Mr. Van Sickle and Mr. Horrice for failure to comply with the terms of the judgment. (Compl. at 5.) No hearing was held on the contempt charges because the City failed to serve one of the defendants. Id. It appears that no further action was taken to enforce the judgment and to ensure closure of the Deepwood site.
In 1992, the Deepwood site was acquired by First State Bank when Mr. Van Sickle defaulted on a loan. (Compl. at 5; Def.'s MSJ at 4.) The bank sold the Deepwood site to Herman Nethery in 1994. ( Id.)
On August 1, 1994, Mr. Nethery submitted a construction permit application to the City on behalf of Herman Nethery Recycling. (Pl.'s MSJ Appx. at35.) The proposed project was described as "fill mine property." ( Id.) The section of the application set aside for "office use only" contains a notation that the application was not ready because it needed an accompanying affidavit stating that the proposed use had been in continuous operation since the original CO was issued. ( Id.) An affidavit was submitted to the City on August 2, 1994, stating, "VV Construction Company is in fact in business and continuing business on said property since 1982 to present time." ( Id. at 36.) The affiant was W Construction Co. by Herman Nethery Recycling. ( Id.) On August 2, 1994, the City issued a permit to Mr. Nethery for mining at the Deepwood site. ( Id. at 37.) The accompanying contractor's authorization notes that inspection of the property was required prior to issuing the CO. ( Id. at 38.) Following citizens' reports of illegal dumping at the Deepwood site, city inspectors issued numerous citations to persons operating the Deepwood site for illegal dumping beginning in August 22, 1994. ( Id. at 111-25.) Despite the reports and citations for illegal dumping, the City issued a CO to Mr. Nethery on December 5, 1994, apparently without first conducting the prerequisite inspection. ( Id. at 39, 964.) The City continued to issue citations for illegal dumping at the Deepwood site through November 27, 1996. ( Id. at 111-25.)
During the time Mr. Nethery owned the Deepwood site, it was operated by Herman Lee Gibbons. (Pl.`s MSJ Appx. at 276.) Mr. Gibbons was also a subcontractor on certain City demolition contracts for demolition and/or hauling of debris. ( Id. at 417-418.) During September 1996, a different subcontractor on a City demolition project was observed disposing of demolition debris at the Deepwood site. ( Id. at 298.)
On April 28, 1995, the City sued Mr. Nethery for operating an illegal solid waste facility. (Def.'s MSJ Appx. at 72-79.) In a judgment entered on November 14, 1997, Mr. Nethery was permanently enjoined from operating a municipal solid waste facility at the Deepwood site. ( Id. at 99.) Additionally, Mr. Nethery and the operator of the site, Herman Lee Gibbons, were both charged with organized criminal activity in connection with their operation of the Deepwood site. (PI.'s MSJ Appx. at 151-62.) Both men were found guilty and sentenced to prison. Mr. Nethery's conviction was reversed on appeal. Nethery v. Texas, 29 S.W.3d 178 (Tex.App.-Dallas 2000).
B. Procedural History
On February 5, 1998, Plaintiffs filed civil action number 3:98-CV-0291 against the City of Dallas and others, alleging illegal dumping and race discrimination. On July 28, 1998, Plaintiffs filed a second suit, civil action number 3:98-CV-1763, against the City of Dallas ("Defendant") and others for alleged illegal dumping and race discrimination. The district court entered an order consolidating the two cases under 3:98-CV-0291 on August 17, 1998. On December 17, 1998, the district court ordered bifurcation of the claims in the consolidated cases. The district court's order specified that 3:98-CV-0291, which would be tried first, would be a class action suit for injunctive relief brought under 42 U.S.C. § 6901 for illegal dumping. The order further specified that after resolution of the illegal dumping claims, Plaintiffs' claims of race discrimination would be tried under 3:98-CV-1763, which was not a class action. After a bench trial in 3:98-CV-0291, the district court entered a final judgment granting Plaintiffs' request for injunctive relief on August 27, 1999. On September 7, 1999, civil action 3:98-CV-0291 was closed, and civil action 3:98-CV-1763 was reopened. Civil action 3:98-CV-1763 was transferred to this Court on March 11, 2003, for the conduct of all further proceedings in Plaintiffs' suit against the City for race discrimination.
In Plaintiffs' Revised Fourth Amended Complaint, filed October 2, 2003, Plaintiffs allege violations of the Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1981, the Fair Housing Act, 42 U.S.C. § 3601 et seq., and 24 C.F.R. § 100.70(b), (d)(4). In particular, Plaintiffs assert that the City's actions in failing to stop the illegal dumping at the Deepwood site were taken for the purpose of discriminating against Plaintiffs because of their race. (Compl. at 13.) Plaintiffs have moved for partial summary judgment on their claims of discriminatory purpose in the provision of municipal services and on their claims of discriminatory impact from a city policy for the provision of municipal services, brought under the Fair Housing Act, 42 U.S.C. § 3604(b). The City has moved for summary judgment on all of Plaintiffs' claims.
II. STANDARD OF REVIEW
This case involves issues of law and issues of fact. "Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record." Burlington Northern and Santa Fe Ry. Co. v. Brotherhood of Maintenance of Way Employees, 93 F. Supp.2d 751, 756 (N.D. Tex. 2000). "Furthermore, disputes over the legal inferences to be gleaned from the facts in evidence will not prevent summary judgment; thus, where a non-movant merely debates the consequences flowing from admitted facts, summary judgment is proper." Id. "Interpretations of statutory provisions that are dispositive and which raise only questions of law, there being no contest as to the operative facts, are appropriate for summary judgment." United States v. Miller, 2003 WL 23109906, at *3 (N.D. Tex. Dec. 22, 2003).
With regard to factual issues, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material facts exists and that the movant is entitled to judgment as a matter of law. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
III. ANALYSIS
A. Fair Housing Act, 42 U.S.C. § 3601 et seq.1. Section 3604(a)
The City moves for summary judgment on Plaintiffs' claims of violations of 42 U.S.C. § 3604(a) of the Fair Housing Act ("FHA"). The City asserts that these claims fail because there has been no refusal to sell or rent to Plaintiffs. (Def.'s Br. at 7.) Section 3604(a) of the FHA makes it unlawful to "refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin."
"To affect the availability of housing within the meaning of the FHA, the discriminatory actions must have a direct impact on plaintiffs' ability, as potential home buyers or renters, to locate in a particular area or to secure housing." Miller v. City of Dallas, 2002 WL 230834, *13 (N.D. Tex., 2002) (citing Southen'd Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d 1207, 1210 (7th Cir. 1984)). Courts have construed the phrase "otherwise make unavailable or deny" to encompass actions by individuals or government units that affected the availability of housing to minorities. See e.g. Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1542 (11th Cir. 1994) (stating that to state a claim under § 3604(a), plaintiffs must allege unequal treatment on the basis of race that affects the availability of housing); Jersey Heights Neighborhood Assn. v. Glendening, 174 F.3d 180 (4th Cir. 1999) (holding that State's decision in selecting location for new highway through predominately African-American neighborhood did not "otherwise make [housing] unavailable"); Clifton Terrace Assoc., Ltd. v. United Technologies Corp., 929 F.2d 714 (D.C. Cir. 1991) (holding that elevator company's refusal to service elevators in buildings in predominantly African-American neighborhood did not "otherwise make [housing] unavailable"); Edwards v. Johnston County Health Dept., 885 F.2d 1215 (4th Cir. 1989) (holding that county's actions in issuing permits for establishment of substandard housing for predominately non-white migrant farm workers did not "otherwise make [housing] unavailable"); Mackey v. Nationwide Ins. Cos., 724 F.2d 419 (4th Cir. 1984) (holding that an insurer's refusal to underwrite hazard insurance in a predominately African-American neighborhood did not "otherwise make [housing] unavailable").
In this case, it is undisputed that Plaintiffs own the homes in which they live. ( See Pl.'s MSJ Br. at 2.) Plaintiffs do not allege that the City has refused to sell or rent to them after the making of a bona fide offer, or has refused to negotiate for the sale or rental of a dwelling to them for any discriminatory reasons. They claim that illegal dumping at the Deepwood site decreased the habitability of their homes and made their homes harder to sell. ( Id. at 9-10.)
To recover under § 3604(a), Plaintiffs must prove that the City has made unavailable or denied them dwellings on a prohibited basis. Section 3604(a) protects the right of individuals to live where they choose, but it does not protect intangible interests in already-owned property, such as habitability or value. Southend Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d at 1210; see also Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 192-93 (4th Cir. 1999). Because no reasonable trier of fact could find that the City made unavailable or denied a dwelling to Plaintiffs within the meaning of the FHA, the City is entitled to summary judgment with respect to Plaintiffs' claims under § 3604(a).
2. Section 3604(b)
The City also moves for summary judgment on Plaintiffs' claims of discriminatory purpose in the provision of municipal services in violation of 42 U.S.C. § 3604(b) of the FHA. The City asserts that this claim fails because there has been no refusal to sell or rent to Plaintiffs, Plaintiffs received City services, Plaintiffs have not shown that similarly situated non-minorities were treated differently, and Plaintiffs have not shown that race was a significant factor motivating the City's actions. (Def.'s Resp. Br. at 11-22.) Plaintiffs move for summary judgment on their discriminatory purpose claim, alleging that the City purposefully discriminated against them in the provision of municipal services because of race. (Pl.'s Br. at 29.) Plaintiffs assert that § 3604(b) applies to the provision of municipal services whether or not those services are connected with the sale or rental of a dwelling. (Pl.'s Reply Br. at 5.)
Section 3604(b) of the FHA makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b). To determine whether the scope of § 3604(b) extends beyond the sale or rental of housing, it is necessary to decide whether the language "in connection with" refers to the "sale or rental of a dwelling" or merely the "dwelling" in general. Laramore v. Illinois Sports Facilities Authority, 722 F. Supp. 443, 452 (N.D. Ill. 2002). The majority of courts considering this question have concluded that the narrower reading of the statute is more appropriate, holding that § 3604(b) applies to only to discrimination which precludes ownership of a dwelling. See Clifton Terrace Ass. Ltd. v. United Technologies Corp., 929 F.2d 714, 720 (D.C. Cir. 1991); Halprin v. Prairie Single Family Homes, 208 F. Supp.2d 896, 901 (N.D. Ill. 2002); see also Southend Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d 1207, 1210 (7th Cir. 1984) (noting that § 3604(b) prohibits discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling); Laramore, 722 F. Supp. at 452 (finding the narrower reading of § 3604(b) to be the most natural reading of the statute).
In Clifton Terrace, the plaintiffs claimed that the failure to service and maintain elevators in a federally subsidized low-income housing complex violated the FHA. 929 F.2d at 716. The court disagreed and noted that although withholding essential city services in a racially discriminatory manner could have an impact on the use and enjoyment of residential property rights, this did not necessarily mean that such a wrong could be redressed under the FHA. Id. at 720. The court found that redress for such action would be available in a suit brought under the equal protection clause of the Fourteenth Amendment. Id. The Clifton Terrace court specifically stated that § 3604(b), which addresses habitability, is "limited to services and facilities provided in connection with the sale or rental of housing." Id.
In Halprin, the court noted that the Seventh Circuit had implicitly adopted the narrow reading of § 3604(b). 208 F. Supp.2d at 901. There, the plaintiffs were homeowners whose home was subjected to attacks due to their religion. Id. at 898. The homeowners' association publically supported the threats against the plaintiffs, applied unwanted chemicals to the plaintiffs' yard, and enacted rules targeted at restricting the plaintiffs' use of their home. Id. at 899. The court found that because the plaintiffs already owned their home at the time the problems began, they could not state a claim for relief under § 3604(b). Id. at 901. The court noted that the term "services" as used in § 3604(b) applied to "services in connection with the acquisition of housing, not its maintenance." Id. (emphasis in original) (quoting N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 299 (7th Cir. 1992));
The foregoing cases are consistent with the legislative history of the FHA. The declaration of policy of the FHA states: "It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601. In commenting upon the import of that declaration, Senator Mondale explained, "Obviously, this [§ 3601] is to be read in context with the entire bill, the objective being to eliminate discrimination in the sale or rental of housing. . . . Without doubt, it means to provide for what is provided in the bill. It means the elimination of discrimination in the sale or rental of housing. That is all it could possibly mean." 114 Conq. Rec. 4975 (1968).
Plaintiffs cite to the only court which has found that an established homeowner stated a valid claim under § 3604(b). In Campbell v. City of Berwyn, 815 F. Supp. 1138 (N.D. Ill. 1993), the plaintiffs purchased a home and were subsequently subjected to racially motivated attacks and threats. After a period of time, 24-hour police protection of the home was terminated. Id. at 1141. The plaintiffs claimed the termination of police protection violated their rights under § 3604(b). Id. at 1143. Although the court recognized that § 3604(b) "prohibits discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling because of race," it ruled that the plaintiffs' allegation was sufficient to state a claim under the statute. Id. at 1143-44. However, the Campbell court did not specifically address the issue of what effect current ownership of a home would have on a plaintiff's ability to obtain relief under 3604(b).
Campbell was cited in dicta in Miller v. City of Dallas, 2002 W 230834 (N.D. Tex., Feb. 14, 2002), for the proposition that recovery could be had by homeowners under § 3604(b) for discriminatory provision of services. However, the court expressly noted that the issue of whether relief could be obtained under § 3604(b) was not before it. Id. at *14. Subsequent to the decision in Miller, the same court which decided Campbell issued its decision in Halprin, which decisively held that existing homeowners could not recover under § 3604(b). 208 F. Supp.2d at 91.
This Court follows the weight of authority as set out by those courts which have specifically considered the issue of whether homeowners can state a cause of action under § 3604(b) for the discriminatory provision of services and which is consistent with the legislative history. Accordingly, the Court holds that § 3604(b) applies only to discrimination in the provision of services that precludes the sale or rental of housing. Because Plaintiffs here have not alleged discrimination related to the acquisition of their homes, the City is entitled to summary judgment on Plaintiffs' claims brought under § 3604(b).
B. Housing Regulations, 24 C.F.R. § 100.70(b), (d)(4)
The City asserts that it is entitled to summary judgment on Plaintiffs' claims that the City violated federal housing regulations, 24 C.F.R. § 100.70(b), (d)(4), because such regulations are not enforceable under 42 U.S.C. § 1983. (Def.'s Br. at 6-7.) Plaintiffs respond that the regulations at issue are enforceable under § 1983 as part of the Fair Housing Act. (Pl.`s Resp. at 7.)
Section 1983 provides that: "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 . . . to the deprivation of any rights . . . secured by the Constitution and laws shall be liable to the party injured in an action at law. . . ." Section 1983 provides a cause of action to redress violations of federal statutes and not solely violations of the Constitution. Gracia v. Brownsville Housing, 105 F.3d 1053, 1057 (5th Cir. 1997) (citing Maine v. Thiboutot, 448 U.S. 1 (1980). However, no cause of action exists where the statute in question does not create enforceable rights, privileges, or immunities within the meaning of § 1983. Id.
Regulations which apply the promulgating statute authoritatively construe the statute. Alexander v. Sandoval, 532 U.S. 275, 284 (2001). Accordingly, if the statute itself is enforceable through a private cause of action, the regulations are also enforceable. Id. However, regulations which do not simply apply the statute, but instead prohibit conduct which the statute permits, may not be enforced through a private cause of action. Id. at 285.
Plaintiffs have asserted a cause of action under § 1983 for violations of 24 C.F.R. § 100.70(b), (d)(4). The regulations at issue provide that:
(b) It shall be unlawful, because of race, color, religion, sex, handicap, familial status, or national origin, to engage in any conduct relating to the provision of housing or of services and facilities in connection therewith that otherwise makes unavailable or denies dwellings to persons. . . .
(d) Prohibited activities relating to dwellings under paragraph (b) of this section include, but are not limited to: . . .
(4) Refusing to provide municipal services or property or hazard insurance for dwellings or providing such services or insurance differently because of race, color, religion, sex, handicap, familial status, or national origin.24 C.F.R. § 100.70(b), (d)(4). These regulations clearly are intended to apply 42 U.S.C. § 3604(b), which provides that: "[I]t shall be unlawful . . . [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin."
This Court has previously held that because Plaintiffs own their homes and no reasonable trier of fact could find that the City made unavailable or denied a dwelling to them within the meaning of the FHA, the City is entitled to summary judgment with respect to their claims brought under § 3604(a) and (b) of the FHA. Both the statute and the regulations prohibit discrimination in the provision of housing or the provision of services and facilities in connection with the provision of housing on the basis of race, color, religion, sex, familial status, or national origin. Even if the Court were to find that the regulations at issue were enforceable through a private cause of action, Plaintiffs' claims fail as a matter of law for the same reason that their claims under the FHA fail. When regulations authoritatively construe a statute, it is "meaningless to talk about a separate cause of action to enforce the regulations apart from the statute." Sandoval, 532 U.S. at 284. Because the City is entitled to summary judgment on Plaintiffs' FHA claims, it is also entitled to summary judgment on their claims brought under 42 U.S.C. § 1983 for violations of 24 C.F.R. § 100.70(b), (d)(4).
C. 42 U.S. C § 1983: Equal Protection 42 U.S.C. § 1981
The City claims it is entitled to summary judgment on Plaintiffs' claims of violations of the Equal Protection Clause of the Fourteenth Amendment brought under 42 U.S.C. § 1983 and under 42 U.S.C. § 1981 on the ground that Plaintiffs cannot establish an underlying constitutional violation. (PL.'s MSJ Br. at 11.) Plaintiffs bear the ultimate burden of proof in this case and, to avert summary judgment, they must make a showing of specific facts sufficient to establish the existence of each essential element of their prima facie case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23(1983).
The City has also moved for summary judgment on the § 1981 claim on the ground that it is duplicative of the § 1983 claim. (Def.'s MSJ Br. at 21-33.) The City has provided no support for its assertion that a party may not bring a cause of action under different legal theories. Accordingly, summary judgment on this basis is denied.
1. Standard
To establish a claim of intentional discrimination under § 1983 or § 1981, Plaintiffs must first prove a prima facie case of discrimination. Wallace v. Texas Tech University, 80 F.3d 1042, 1047 (5th Cir. 1996). In showing that an official action constitutes a violation of the Equal Protection Clause, Plaintiffs must provide proof of racially discriminatory intent or purpose. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). To determine intent, courts consider both circumstantial and direct evidence of intent. Id. Where a facially neutral state law has been shown to produce disproportionate effects along racial lines, courts consider the factors set out in Arlington Heights. Hunter v. Underwood, 471 U.S. 222, 228 (1985). The factors to be considered include: (1) whether the official action "bears more heavily on one race than another;" (2) the historical background of the decision; (3) the sequence of events leading up the challenged decision; (4) departures from the normal procedural sequence; and (5) the legislative or administrative history. Arlington Heights, 429 U.S. at 265-68. However, "[a]n action does not violate the equal protection clause simply because the decisionmaker knows that it will have a disparate impact on racial or ethnic groups." United States v. LULAC, 793 F.2d 636, 646 (5th Cir. 1986). Disproportionate impact of state action on different racial ethnic groups does not of itself violate the Constitution. Id. A violation of the Fourteenth Amendment occurs "only if a state decisionmaker selects or continues in a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." Id.
If Plaintiffs provide proof of racially discriminatory intent or purpose, the burden then shifts to the City to provide a legitimate, nondiscriminatory reason for the actions taken. Sreeram v. Louisiana State University Medical Center-Shreveport, 188 F.3d 314, 322 (5th Cir. 1999). If the City can prove it had a legitimate, nondiscriminatory reason for its actions, the presumption of intentional discrimination disappears. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). However, Plaintiffs can still prove disparate treatment by offering evidence demonstrating pretext. Id.
2. Discriminatory intent or purpose
a. Official action
The City first asserts that the acts complained of are not official actions of the City, a presupposition of the Arlington Heights factors. (Pl.'s MSJ Br. at 13.) The City claims that no facts support Plaintiffs' contention that the illegal dumping at the Deep wood site were condoned by the City or were the result of City action. ( Id.)
The evidence shows that the City issued Certificates of Occupancy to the owners of the Deepwood site which were based on applications indicating the owners' intent to fill the Deepwood site with solid waste, that the City was aware of the illegal dumping at the Deepwood site, that City contractors used the site to dispose of demolition waste, and that the City's efforts to terminate the use of the illegal landfill were sporadic and ineffective. (P.'s MSJ Appx. at 3, 4, 6-21, 111-25, 298.) The Court concludes that Plaintiffs have adduced sufficient evidence to establish that there is a genuine issue of material fact for trial on the question of whether official actions of the City permitted the continued operation of the Deepwood site as an illegal dump.
b. Similarly situated
The City next claims that Plaintiffs cannot show that the City's actions have produced disproportionate effects along racial lines. (Pl.'s MSJ Br. at 14.) Plaintiffs have identified two sites located in predominantly white neighborhoods where the City did remedy illegal dumping and/or illegal mining. (Pl.'s MSJ Br. at 13.) At issue is whether these two sites, the Plainview site and the Middlefield site, were sufficiently similar to the Deepwood site to support the conclusion that similarly situated non-minorities were treated differently.
To establish a prima facie case of disparate treatment, Plaintiffs must show that non-minorities received different treatment under circumstances "nearly identical" to theirs. Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 514 (5th Cir. 2001). Having reviewed the evidence submitted by both parties in support of their respective motions for summary judgment, the Court concludes that Plaintiffs have submitted sufficient evidence to create a genuine issue of material fact regarding whether the three sites were similarly situated.
c. Discriminatory intent
In addressing whether discriminatory intent can be imputed to the City, the Court must consider the Arlington Heights factors. Hunter, 471 U.S. at 228. The first Arlington Heights factor addresses the discriminatory effect of the official action. With respect to this factor, the City again claims that any discriminatory impact on Plaintiffs was not attributable to official City action. (Def.'s Br. at 16.) However, Plaintiffs have shown that their neighborhood is predominately inhabited by African-Americans and that the neighborhood has been home to an illegal dump site since 1982. (Def.'s MSJ Br. at 3.) Plaintiffs have adduced sufficient evidence demonstrating a genuine issue of material fact concerning the discriminatory effects of the failure to stop the illegal dumping.
The third Arlington Heights factor is the specific sequence of events leading up to the challenged decision. Plaintiffs' evidence shows that after the racial makeup of the neighborhood changed from predominately white to predominately African-American, an application was submitted to the City which clearly stated that the owner of the Deepwood site intended to use the site for solid waste, and a CO was issued on the basis of that application. (Def.'s MSJ. Appx. at 3; Pi's MSJ Appx. at 25.) After the owner of the Deepwood cite was fined in 1983 for operating a sanitary landfill and after receiving numerous citizen complaints, the City determined not to terminate the nonconforming use at the site and allowed the mining operation to continue. (Pl.`s MSJ Appx. at 52, 71.) The City finally sued the owner of the Deepwood site but failed to enforce its judgment against him, which required closure of the site. ( Id. at 40-46.) Despite the fact that the site had not been cleaned, the City granted a new CO to the new owner of the Deepwood site without first inspecting the premises. ( Id. at 37.) Subsequently, numerous citations for illegal dumping were issued to the owner of the Deepwood site, and in 1995, the City sued the owner. ( Id. at 111-25; Def.'s MSJ Appx. at 72-79.) The Court concludes that this sequence of events could permit a reasonable trier of fact to find racially discriminatory intent in the City's failure to stop the illegal dumping.
3. Legitimate, nondiscriminatory reason
Even if Plaintiffs can prove a prima facie case of disparate treatment, the presumption of intentional discrimination disappears if the City can prove it had a legitimate nondiscriminatory reason for its actions. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Here, the City asserts that it did attempt to remedy the illegal dumping at the Deepwood site. (Def.'s MSJ Br. at 14-15.)
Considering the evidence of the City's action with respect to the illegal dumping at the Deepwood site as a whole, the Court concludes there is a genuine issue of material fact whether the City had a legitimate nondiscriminatory reason for its failure to stop the illegal dumping.
4. Municipal liability under § 1983
The City claims that even if Plaintiffs can prove a denial of equal protection, the city is not liable under § 1983. (Def.'s MSJ Br. at 21-32.)
A city may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his constitutional rights. Monell v. Dep't of Social Serv., 436 U.S. 658, 691 (1978). However, liability does not attach merely because a city employed a tortfeasor. Id. at 694; Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). Municipal liability under § 1983 "is limited to action for which the municipality is actually responsible . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). A city's policy or custom must be "the moving force of the constitutional violation." Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (quoting Monell, 436 U.S. at 694). A single incident, unaccompanied by supporting history, is not a sufficient basis for inferring a custom or policy unless the actors involved were given official policy-making authority. Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir. 1989) (citations omitted); see also Palmer, 810 F.2d at 516.
The alleged custom or policy must be adopted by the municipality's governing body before a municipality may be held liable. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). "Official policy" is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city 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 municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), affd in relevant part, 739 F.2d 993 (5th Cir. 1984) (en banc); Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (citing Bennett, 735 F.2d at 862).
Having reviewed Plaintiffs' evidence concerning the City's action with respect to the illegal dumping at the Deepwood site over the course of almost 30 years, the Court concludes there is a genuine issue of material fact whether the City's failure to terminate the illegal dumping at the Deepwood site was the result of execution of one of its customs or policies.
Considering the evidence of the City's action with respect to the illegal dumping at the Deepwood site as a whole, the Court concludes there is a genuine issue of material fact whether the City discriminated against Plaintiffs on the basis of race. Therefore, the Court denies the City's motion for summary judgment on Plaintiffs `§ 1983 Fourteenth Amendment Equal Protection claim and § 1981 claim.
D. Damages
The City claims that Plaintiffs may not recover for their requested monetary damages because damages are not recoverable under § 1983 or § 1981 for personal discomfort and annoyance, Plaintiffs cannot prove a sufficient causal connection to recover for emotional distress and mental anguish, Plaintiffs failed to plead damages for diminution of property values, there is no evidence of a diminution of property values, Plaintiffs have no evidence of time spent monitoring the landfill, and the City is immune from punitive damages under the FHA. (Def.'s MSJ Br. at 33-49.)
The Court has ruled that Plaintiffs may go forward with their § 1983 Fourteenth Amendment Equal Protection claim and § 1981 claim. Because the issue of the City's liability under § 1983 and § 1981 remains to be tried to the Court, and because the parties' briefing with respect to the issue of damages addressed the availability of damages under all of Plaintiffs' claims, the Court declines to reach the damages issue at this stage of the proceedings. Accordingly, summary judgment with respect to Plaintiffs' claim for damages is denied.