M.D.Ala: Eviction Notice Not Specifying Factual Basis Could Violate Due Process

A reasonable jury could find that an eviction notice to a family receiving a Section 8 voucher was deficient when the notice alleging criminal activity merely parrots the regulations without providing information about the factual basis for the determination.  Therefore, the district court denied the housing agency’s motion for summary judgment, permitting the resident’s due process claim to proceed to trial.  McCall v. Montgomery Housing Authority, No. 2:10–cv–367–MEF, 2011 WL 4025644 (M.D. Ala. Sep. 12, 2011).  The decision is by Judge Mark Fuller, who was nominated by George W. Bush.

As part of routine criminal background checks, the Montgomery Housing Authority (MHA) received information about alleged criminal activity by Section 8 voucher recipient, Minnie McCall.  The information falsely stated that McCall’s daughter had been charged with theft by fraud.  The information correctly stated that McCall had an active warrant for first degree criminal mischief.  McCall was sent a termination notice which merely quoted the regulations, indicating that it was a violation of the program to be involved in criminal activity.  The notice did not specify who in the household was alleged to have engaged in criminal activity nor what charges were allegedly filed.

McCall called the agency asking for information about the alleged criminal activity, but was told that she would not be provided such information until a hearing was held.  A hearing was scheduled, but McCall was not able to attend the hearing, due to illness. On September 29, 2009, MHA sent a notice that her case was closed effective September 30th; the notice did not contain any information about the factual basis upon which her assistance was terminated.  On September 30th, McCall was arrested based on the outstanding warrant for criminal mischief.  As of the date of the court’s decision, the charge remained pending and unresolved.  McCall alleged that the charge stemmed from a dispute with family members who were angry at her.

On Oct 19, 2009, McCall filed suit against MHA and its officials, joined by other plaintiffs, alleging due process violations.  The court issued a preliminary injunction, prohibiting the termination of benefits.  While McCall had to move to another rental unit, she does continue to receive Section 8 assistance.  The other plaintiffs settled their claims, but McCall pursued the litigation.  The MHA moved for summary judgment.

The court dismissed claims against the hearing officer, holding that she had quasi-judicial immunity, but refused to dismiss charges against MHA, the executive director of MHA, and the Section 8 Director of MHA.  The court stated that under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), a municipality is liable under 42 U.S.C. § 1983 if its policies and customs violate federally created rights.  The court further noted that no one contested that McCall has a protected property right in continued receipt of Section 8 assistance.

An unpublished Eleventh Circuit opinion held that that “a Section 8 termination hearing notice is not required to specify the individual alleged to have committed the illegal activity or to specify the time that the activity took place.”  Ervin v. Housing Auth. of Birmingham Dist., No. 07–14219, 2008 WL 2421799 at *3 (11th Cir. June 17, 2008). Nevertheless, the district court distinguished that decision, on the grounds that the notice had provided a “factual basis for the determination.”  The court also relied upon earlier precedent from the Fifth Circuit holding that a notice which “merely parrots the broad language of applicable regulations is insufficient.” Billington v. Underwood, 613 F.2d 91, 94 (5th Cir.1980). (Fifth circuit cases from that date are binding in the Eleventh Circuit.) The district court then concluded that a reasonable jury could hold (1) that the initial notice was deficient; (2) that the initial notice coupled with the refusal to provide further information prior to the hearing interfered with McCall’s opportunity to present evidence at the hearing; and/or (3) that the notice issued after the “hearing” was deficient.  The court therefore denied summary judgment on the due process claim under § 1983.

While granting summary judgment on McCall’s state law claim of negligence in hiring an impartial hearing office, the court denied summary judgment on McCall’s claim of negligence in training and supervision of the hearing officer.  The court allowed McCall’s claim of breach of contract to proceed against MHA, but not the MHA officials.

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