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Givens v. Butler Metropolitan Housing Authority

December 19, 2006


The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge


This matter is before the Court on the Plaintiffs' Motion for Partial Summary Judgment (doc. 33), the Defendant's Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment (doc. 35), the Plaintiffs' Reply Memorandum in Support of Its Motion for Partial Summary Judgment (doc. 40), Defendant's Sur-Reply in Opposition to Plaintiffs' Motion for Partial Summary Judgment (doc. 45), and Plaintiffs' Response to Defendant's Sur-Reply (doc. 47). Also before the Court are Plaintiffs' Objections, and Motion to Strike Affidavit of Joan Tumblison in Support of Defendant's Response to Plaintiffs' Motion for Partial Summary Judgment (doc. 38), Defendant's Response (doc. 44), and Plaintiffs' Reply (doc. 48). Finally, the Court considers Defendant's Motion for Summary Judgment (doc. 52), Plaintiffs' Response in Opposition (doc. 55), and Defendant's Reply (doc. 56).

For the reasons indicated herein, the Court DENIES Plaintiffs' Motion for Partial Summary Judgment, DENIES Plaintiffs' Motion to Strike, and DENIES IN PART AND GRANTS IN PART Defendant's Motion for Summary Judgment.


Bambo Harris Apartments ("Bambo Harris") is a 141-unit town-house style public housing project located in Hamilton, Ohio, which Defendant Butler Metropolitan Housing Authority ("BMHA") built in 1942, and later renovated in the 1970's and early 1980's (docs. 35, 40). In addition to Bambo Harris, BMHA manages other public housing dwellings, including Riverside Apartments, which were built in 1958 and are located nearby Bambo Harris (Id.). In total, BMHA operates some 3000 housing units (doc. 35).

Occupancy of Bambo Harris was at the 90% level through most of the 1990's (doc. 33). According to Defendant, by 1999, it realized that significant upgrades and repairs were needed to extend the useful life of Bambo Harris, which had an inefficient heating system, problems with asbestos and lead paint, and overly narrow streets (Id.). In late 1999, BMHA adopted a policy of not re-renting units in an effort to prepare for a future renovation or replacement of Bambo Harris (doc. 35). According to Defendant, by August 2001, approximately 58% of the units were vacant through normal attrition and BMHA's non re-renting policy (Id.).

In August 2001, BMHA adopted a formal resolution to vacate, close, and demolish Bambo Harris (doc. 33). At the time the resolution was adopted, BMHA had not yet sought Department of Housing and Urban Development ("HUD") approval to carry out its decision to vacate and demolish Bambo Harris (doc. 33). Also in August 2001, BMHA sent a notice to Bambo Harris residents informing them of the decision to replace the existing Bambo Harris units with new units called "Bambo Harris Estates" (doc. 33). By this time eighty-three of the total 141 units were already boarded up and vacated (doc. 55). In mid 2002, occupancy of Bambo Harris had declined to about seven families (doc. 35). In 2004, BMHA applied to HUD for permission to demolish Bambo Harris, and HUD granted BMHA such permission in December of that year (doc. 33). By early 2005, the remaining seven families at Bambo Harris had relocated to other housing, and Bambo Harris was vacant (doc. 35). To date Bambo Harris remains vacant and boarded up (doc. 33).

From the years of 2000 through 2004, BMHA had obtained various cost estimates for either renovation or demolition of Bambo Harris. In May 2000, BMHA estimated renovation cost for Bambo Harris was $8,369,564, or $59,000 per dwelling unit (doc. 33). Later in 2004, this estimate was adjusted to $19 million (doc. 35). Additionally, BMHA estimated the cost of demolition of Bambo Harris at $1.4 million (Id.).

HUD provided BMHA with $1.9 million annually between 1992 and 2001 for renovation of public housing as a part of HUD's Capital Fund program (docs. 33, 35). BMHA used this Capital Fund to maintain all of the public housing units it operates (Id.). As an additional funding source, qualifying public housing authorities may apply to HUD for HOPE VI funds, although an award of such funds is not guaranteed (doc. 33). BMHA did not apply for HOPE VI funding in years 2000, 2001, and 2002 (Id.). Although unsuccessful, BMHA did apply for HOPE VI funding three times between 2003 and 2005 (doc. 35). Other potential sources of funding for public housing authorities include government bonds and tax credits (Id.).

Plaintiffs, Shirley Givens, Laronda Ray, Amy Finkbone, and Mary Clemons, former residents of Bambo Harris, filed their Complaint in this matter on July 17, 2003, alleging BMHA violated federal public housing laws and its own written policies by closing Bambo Harris and failing to properly relocate the displaced residents. Plaintiffs subsequently added the Bambo Harris/Riverside Resident Council as a Plaintiff (doc. 16). Both Plaintiffs and Defendant have now moved this Court for summary judgment.


Although a grant of summary judgment is not a substitute for trial, it is appropriate "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; see also, e.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per curiam). In reviewing the instant motion, "this Court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986) (internal quotation marks omitted).

The process of moving for and evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and the non-movant are well settled. First, "a party seeking summary judgment ... bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact [.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The movant may do so by merely identifying that the non-moving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).

Faced with such a motion, the non-movant, after completion of sufficient discovery, must submit evidence in support of any material element of a claim or defense at issue in the motion on which it would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. See Celotex, 477 U.S. at 317; Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). As the "requirement [of the Rule] is that there be no genuine issue of material fact," an "alleged factual dispute between the parties" as to some ancillary matter "will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-248 (emphasis added); see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989). Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994). Accordingly, the non-movant must present "significant probative evidence" demonstrating that "there is [more than] some metaphysical doubt as to the material facts" to survive summary judgment and proceed to trial on the merits. Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.

Although the non-movant need not cite specific page numbers of the record in support of its claims or defenses, "the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the non-moving party relies." Guarino, 980 F.2d at 405, quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989) (internal quotation marks omitted). In contrast, mere conclusory allegations are patently insufficient to defeat a motion for summary judgment. See McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). The Court must view all submitted evidence, facts, and reasonable inferences in a light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc., 369 U.S. 654 (1962). Furthermore, the district court may not weigh evidence or assess the credibility of witnesses in deciding the motion. See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).

Ultimately, the movant bears the burden of demonstrating that no material facts are in dispute. See Matsushita, 475 U.S. at 587. The fact that the non-moving party fails to respond to the motion does not lessen the burden on either the moving party or the Court to demonstrate that summary judgment is appropriate. See Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991).


Congress amended the United States Housing Act in 1987 so as to explicitly allow for a private right of action for tenants. Velez v. Cisneros, 850 F. Supp. 1257, 1270 (E.D. Pa 1994). Plaintiffs therefore have standing to bring their Complaint, which essentially presents two claims that allege violation of federal public housing laws. First Plaintiffs contend that BMHA's actions in closing Bambo Harris constitute a de facto demolition of housing facility without HUD approval in violation of the United States Housing Act, 42 U.S.C. § 1437p, and 24 C.F.R. 970.12 (doc. 33). Second, Plaintiffs allege that BMHA withheld relocation assistance from Bambo Harris residents in violation of the United States Housing Act, 42 U.S.C. § 1437p; the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq; and BMHA's Resident Relocation Assistance Plan (Id.). Before addressing the parties' arguments in support of their respective motions for summary judgment, the Court will first address Plaintiffs' Motion to Strike.

A. Plaintiffs' Motion to Strike

Plaintiffs move the Court to strike portions of the affidavit of Joan Tumblison, proffered by Defendant in response to Plaintiffs' motion for summary judgment (doc. 38). Tumblison served as BMHA's Assistant Director and counsel, from 2001 until 2006. Plaintiffs argue that Tumblison does not have personal knowledge about events previous to her employment, and therefore portions of her affidavit are hearsay and irrelevant (doc. 38). Plaintiffs further argue that other portions of Tumblison's affidavit do pertain to events after she came to work for Defendant, but are based on things people told her or documents not in the record (Id.). These statements, argue Plaintiffs, are also inadmissible hearsay (Id.). Finally, Plaintiffs argue that Tumblison's affidavit includes a number of conclusory statements, including that Defendant did not have the money to ...

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