Doris J. Wilson, Appellant, v. Lincoln Redevelopment Corporation, Appellee, 488 F.2d 339 (8th Cir. 1973)

This is an action brought under 42 U.S.C. § 1983 by Doris J. Wilson, a tenant residing in the Lincoln Garden Apartments, a low and moderate income housing complex, in Kansas City, Missouri. The complex is owned and operated by the defendant Lincoln Redevelopment Corporation. Plaintiff alleges that the defendant is attempting to terminate her tenancy, for breach of the conditions of her lease, without affording her due process of law. The district court granted defendant's motion to dismiss on the ground that plaintiff had failed to state a claim entitling her to relief. Mrs. Wilson appealed. We affirm.

Plaintiff entered into a written lease for a one-year tenancy on March 6, 1971. This has been amended on two subsequent occasions. Prior to the termination of such lease, plaintiff alleges that she was served with a notice requiring her to vacate her apartment within 30 days of July 20, 1972. The Building and Grounds Committee reviewed a factual summary of the incident and upheld the decision to evict her. Thereafter, a hearing was held at plaintiff's request and a hearing board composed of three members of the management group affirmed the Committee's decision to evict. Plaintiff alleges that her eviction by the defendant, acting under color of state law, was without proper notice and without a hearing before an impartial adjudicatory board and therefore in violation of the Fourteenth Amendment.

The district court found that the defendant was a quasi-governmental corporation and was obligated to afford its tenants due process of law in terminating their tenancies.¹  However, the district court held that due process would be afforded the tenant through the Missouri state court proceedings in an eviction action. Accordingly, the trial court dismissed the case under Rule 12(b) (6) of the Federal Rules of Civil Procedure for failure of the plaintiff to state a claim for relief.² 

Plaintiff urges that under similar circumstances, in Brown v. Housing Authority of Milwaukee, 340 F. Supp. 114 (E.D. Wis.), aff'd, 471 F.2d 63 (7th Cir. 1972)³  and Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970), the availability of state court eviction proceedings did not obviate the need for administrative due process. However, the district court distinguished these cases since the precise issue involved here is a charge of breach of the lease rather than termination of a month-to-month tenancy or an increase in rent. Thus it reasoned that a plenary trial in the state court satisfies basic requirements of due process where the only issue involves a breach of the lease. The trial court noted that in the circumstances of Escalera and Brown there existed no effective judicial review of the factual basis for the administrative action. This was the same reasoning applied in Johnson v. Tamsberg, 430 F.2d 1125 (4th Cir. 1970).⁴  This precise question was left open in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969). See Thorpe, supra at 284, 89 S. Ct. 518; Johnson v. Tamsberg, supra 430 F.2d at 1126.⁵  However, we need not decide the constitutional question here. We affirm the trial court for a different reason. We find that plaintiff's complaint is deficient in that it fails to factually plead a denial of administrative due process under Sec. 1983.

In determining whether a complaint states a claim for relief, it is of course true that the pleadings should be construed in the light most favorable to the plaintiff and that all doubts should be resolved in favor of the sufficiency of the complaint. See, e. g., Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 87 S. Ct. 1526, 18 L. Ed. 2d 704 (1967); Mississippi River Fuel Corp. v. Slayton, 359 F.2d 106 (8th Cir. 1966). However, where the allegations are conclusory in nature, the court has a duty to measure these allegations in light of the factual claims actually made. Cf. 2A Moore's Federal Practice Sec. 12.08 (2d ed. 1972).

Here, the complaint first alleges insufficient notice. As stated in Escalera, " [t]he purpose of requiring that notice be given to the tenant before the hearing is to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence." Escalera, supra 425 F.2d at 862.

Escalera, however, involved vague one-sentence statements which alleged that tenants were guilty of "anti-social activities" and "illegal acts * * * having an adverse effect" on others. On the other hand, the timely notice given here sets forth the time, the date and a statement of the factual incident which constituted the grievance. The notice was attached to the plaintiff's complaint and adequately refutes plaintiff's conclusory allegation of insufficient notice.⁶ 

Plaintiff's basic claim, aside from her allegation of deficient notice, relates to the allegation that the hearing was not before an impartial committee.⁷  Plaintiff's charge of partiality stems from paragraphs 12 and 13 of her complaint. Plaintiff alleges a denial of due process in that two members of the hearing panel here had substantial prior involvement in the case and had concluded that the plaintiff should be evicted.

We agree that if plaintiff is entitled to a hearing, it must be a fair one and therefore must be before an impartial body. However, "prior involvement" in itself is not sufficient to bar a person from acting as a "decisionmaker." Goldberg v. Kelly, 397 U.S. 254, 271, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

Here, what is alleged is that Earl D. Thomas, the Secretary-Treasurer of the corporation, had apprised the Building and Grounds Committee of "the facts" and that Vernon J. Brooks, as one of its members, voted on the basis of a written statement of these facts to evict plaintiff. The facts alleged simply show that these two men, representing management, were given the role of reviewing the incident in various steps of factual completeness. In our judgment these facts fall short of stating a prima facie complaint as to a biased hearing board.

One of the essential reasons behind the requirement of a preliminary administrative hearing vis-a-vis the state court proceeding relates to expediency and overall fairness to the tenant. See Brown v. Housing Authority of Milwaukee, 340 F. Supp. 114, 115-116 (E.D. Wis.), aff'd, 471 F.2d 63 (7th Cir. 1972). Similarly, management is given the timely opportunity to be dissuaded from perhaps costly and futile litigation if it can be immediately apprised of the facts surrounding the charge. But simply because management has been previously apprised of some of the facts and has made tentative judgments without a full hearing cannot by itself justify a charge of prejudice and inability of management to fairly review the facts more adequately developed. The critical determination here in assessing the charge of partiality of the decisionmaker is whether in weighing the evidence he is required to call on his own personal knowledge and impression of what occurred. In such cases, the tenant would be deprived of his right to examine or cross-examine a crucial witness and the decisionmaker would become the arbiter of his own credibility and fairness. Cf. In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955); Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970).

This is not the claim here.

Here, the essential pleading is that some members of management on the review committee were familiar with the facts, and that one member of the committee had reviewed a written factual summary and previously had voted to evict plaintiff. We do not think this disqualifies these individuals from forming a review panel with the President of the corporation to assess newly developed evidence and make the ultimate management decision to proceed or not.⁸ 

The principles of Escalera, Brown and Caulder, requiring administrative due process as enunciated in Goldberg v. Kelly, undoubtedly do much to overcome the traditional imbalance in the landlord-tenant relationship in public housing. However, we are confident that the elements of fairness they embody were not designed to impose hypertechnical requirements which totally circumvent the practical day-to-day processing of these grievances. When adequate and timely notice is given, a full administrative hearing is held, the right to have counsel, confrontation of adverse witnesses and the opportunity to call witnesses provided, as was done here, it is an abuse of the ends of Goldberg and its progeny to urge that due process is still violated.

In conclusion, we find that the trial judge's dismissal of the complaint should be affirmed. We feel it unnecessary to determine whether under the facts and circumstances here presented due process is satisfied solely by the state eviction proceeding or whether a preliminary administrative hearing was essential. We conclude, however, that the complaint is deficient in failing to factually plead a denial of administrative due process.

Judgment affirmed.

WEBSTER, Circuit Judge (dissenting).

I reluctantly dissent.

While I agree with almost everything the majority has said with respect to the showing required to sustain a civil rights action to enjoin an eviction by a quasi-public housing corporation, I must conclude that the District Court prematurely adjudicated the jurisdictional issue and that the majority opinion has erroneously assessed the merits of the case upon the pleadings alone.

Civil rights complaints are to be liberally construed, and are not to be dismissed unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of the facts which could be proved in support of his claim. Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970); Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968); Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967). Nonetheless, something more than mere legal conclusions is required to sustain jurisdiction. Stanturf v. Sipes, 335 F.2d 224, 229 (8th Cir. 1964), cert. denied, 379 U.S. 977, 85 S. Ct. 676, 13 L. Ed. 2d 567 (1965); Rodes v. Municipal Authority of Milford, 409 F.2d 16, 17 (3rd Cir.), cert. denied, 396 U.S. 861, 90 S. Ct. 133, 24 L. Ed. 2d 114 (1969).

It seems to me that the complaint alleges with sufficient factual definiteness (1) that the appellee was a quasi-governmental corporation possessed of certain state governmental powers by reason of the Missouri urban redevelopment statute under which it was chartered; (2) that appellee threatened to evict appellant from her leased apartment; (3) that her special situation as tenant of low cost, subsidized housing entitled her to administrative due process before such tenancy could be terminated; (4) that the notice which she received was inadequate; (5) that the hearing which she received was not before an impartial tribunal, but instead was before interested officials of the corporation, at least one of whom had prejudged her case; and (6) that (4) and (5) deprived her of due process under color of state law.

I do not understand that one seeking to vindicate his civil rights must plead all the evidentiary facts any more than that his pleading of mere hyperbole or ultimate legal conclusions will satisfy the jurisdictional demands. I simply say that in this case appellant has set forth her claim with sufficient disclosure of the factual basis upon which she depends for her relief. It remains an open question whether upon a hearing she can demonstrate, under the particular circumstances of her case, that appellee was indeed acting under color of state law, and further that the notice was inadequate, that the hearing lacked requisite impartiality and that, in consequence, appellant was denied the degree of due process to which she was entitled. But I do not see how we can conclude from the bare pleadings, unsupported by any record, that appellant can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Lewis v. Chrysler Motors Corp., 456 F.2d 605 (8th Cir. 1972).

I would vacate the order of dismissal and remand this case to the District Court for further proceedings. If appellant's claims are in fact illusory, the Federal Rules of Civil Procedure provide the means to make such determination upon a sufficient development of the record, even before trial.¹