Kirby v. Housing Authority of Everett et al, No. 2:2009cv00713 - Document 38 (W.D. Wash. 2010)
Court Description: ORDER granting 20 Defendant's Motion for Summary Judgment by Judge John C Coughenour. All Claims against Defendants Housing Authority of Everett, Bud Alkire, and Jane Doe Alkire are DISMISSED. (KL)
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Kirby v. Housing Authority of Everett et al Doc. 38 1 The Honorable John C. Coughenour 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 CARROLL KIRBY, Plaintiff, 10 11 12 13 14 15 Case No. C09-0713-JCC v. HOUSING AUTHORITY OF EVERETT; LORNA S. CORRIGAN and “JOHN DOE” CORRIGAN, wife and husband; NEWTON AND KIGHT, LLP, Attorneys at Law, a Washington Professional Limited Liability Partnership, BUD ALKIRE and “JANE DOE” ALKIRE, husband and wife, ORDER Defendants. 16 17 This matter comes before the Court on Housing Authority of Everett and Bud and Jan Doe 18 Alkires’ motion for summary judgment (Dkt. No. 20), Plaintiff’s response (Dkt. No. 29), and 19 Defendants’ reply (Dkt. No. 31). Having considered the parties’ briefing and the relevant record, the 20 Court finds no genuine issue of material fact and hereby GRANTS Defendants’ motion, for the 21 reasons explained herein. 22 23 24 25 ORDER — 1 C09-0713-JCC Dockets.Justia.com 1 I. Unless otherwise indicated, the following facts are undisputed or are taken in the light 2 3 BACKGROUND most favorable to Plaintiff, the nonmoving party: Plaintiff leased a residential property owned by the Housing Authority of Everett 4 5 (“EVHA”). (Defs’. Mot. (Dkt. No. 20 at 2).) Defendant Bud Alkire is the Director of EVHA.1 6 (Decl. (Dkt. No. 21 at 1).) The rental property was unsubsidized and Plaintiff did not receive 7 benefits under the Housing Choice Voucher Program at any time relevant to this matter. (Defs’. 8 Mot. (Dkt. No. 20 at 2).) On May 7, 2008, after Plaintiff had fallen behind on rent payments, Defendants hired 9 10 attorney Lorna Corrigan2 to serve notice on Plaintiff demanding that he pay the delinquent rent 11 or vacate the property within three days. (Defs’. Mot. (Dkt. No. 20 at 2).) After giving Plaintiff 12 the notice, Defendants initiated a summons and complaint for unlawful detainer in state court. 13 (State Ct. Compl., 5 (Dkt. No. 22 at 62).) Plaintiff requested dismissal of the action on the 14 grounds that he had been served with a form that did not meet Washington statutory 15 requirements. (Compl. (Dkt. No. 1 at 7)); WASH. REV. CODE § 59.18.365. Specifically, he 16 alleged that the summons was out of date and did not inform Plaintiff that he had the right to 17 respond to the complaint via facsimile or mail. (Compl. (Dkt. No. 1 at 7).) Plaintiff brought the 18 error to Ms. Corrigan’s attention, who acknowledged that a mistake had been made. Defendants 19 agreed to voluntarily dismiss the action. (Id.) Following the dismissal of the state court action, Plaintiff filed this action in federal 20 21 court, seeking damages and remedies from Defendants EVHA and Alkire pursuant to 42 U.S.C. 22 § 1983. Plaintiff claims that the use of the improper summons violates: (1) the federal Civil 23 24 1 His anonymous wife is also a Defendant. 2 Ms. Corrigan is also a Defendant in this case, but did not join the current motion for summary judgment. 25 ORDER — 2 C09-0713-JCC 1 Rights Act, 42 U.S.C. § 1983; (2) the federal Fair Debt Collection Practices Act (“FDCPA”) ; 2 and (3) the Washington Consumer Protection Act (“WCPA”) WASH. REV. CODE § 19.86. 3 (Compl. ¶6.6 (Dkt. No. 1 at 11–17).) In his Response, Plaintiff adds a claim concerning quiet 4 enjoyment of one’s home. (Dkt. No. 29 at 3.) Defendants now move for summary judgment on the 42 U.S.C. § 1983 and WCPA 5 6 claims. Specifically, Defendants allege that: (i) they did not violate any of Plaintiff’s 7 Constitutional or statutory rights; (ii) Plaintiff failed to comply with the notice requirements for 8 the WCPA claim; and (iii) Defendant Alkire is entitled to qualified immunity. Because the Court 9 concludes that Plaintiff’s rights were not violated, the Court declines to address Plaintiff’s state 10 law claims for lack of subject matter jurisdiction and Defendants’ qualified immunity defense 11 because it is moot. 12 II. SUMMARY JUDGMENT STANDARD 13 Summary judgment “should be rendered if the pleadings, the discovery and disclosure 14 materials on file, and any affidavits show that there is no genuine issue as to any material fact 15 and that the [moving party] is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A 16 genuine issue of material fact exists when the evidence is such that a reasonable jury could return 17 a verdict for the nonmoving party. In re Caneva, 550 F.3d 755, 761 (9th Cir. 2008) (citing 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views the evidence in the 19 light most favorable to the non-moving party. Id. 20 A defendant moving for summary judgment bears the initial responsibility of informing 21 the district court of the basis for its motion and identifying those portions of the record that 22 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 23 317, 323 (1986). To defend against the motion, the plaintiff must then go “beyond the pleadings” 24 25 ORDER — 3 C09-0713-JCC 1 and demonstrate “‘specific facts [in the record] showing that there is a genuine issue for trial.’” 2 Id. at 24 (quoting FED. R. CIV. P. 56(e)(2)). 3 III. DISCUSSION 4 A. Section 1983 Claims 5 To state a claim under 42 U.S.C. § 1983, Plaintiff must show that he has suffered a 6 violation of federal constitutional or statutory rights, and that the violation was proximately 7 caused by a person acting under color of state or federal law. See Crumpton v. Gates, 947 F.2d 8 1418, 1420 (9th Cir. 1991). Plaintiff alleges that the improper summons deprived him of his 9 Section 8 subsidized housing rights and his Due Process rights. Neither Plaintiff’s Section 8 10 claim nor his Due Process claim amount to even the barest showing that a federal right was 11 violated.3 Plaintiff’s claim that he was deprived of his Section 8 Housing benefits by Defendants’ 12 13 improper summons is woefully unsupported. Plaintiff has never shown that he received Section 8 14 benefits to begin with, let alone that he was deprived of them by Defendants’ improper 15 summons. 4 Plaintiff failed to rebut that allegation in his Response, and the Court takes it to be 16 conceded. No reasonable juror could find that Defendants’ defective summons deprived Plaintiff 17 of something to which he was not entitled. See Anderson, 477 U.S. at 248–50. Plaintiff’s Due Process claims are equally threadbare. The Constitution prohibits a state 18 19 from depriving an individual of life, liberty, or property without due process of law. U.S. CONST. 20 amend. XIV, § 1. Plaintiff claims that his procedural due process rights were violated when 21 3 22 23 24 Plaintiff’s utterly fantastical claim, asserted for the first time in his Response, that there exists a constitutional right to quiet enjoyment of one’s home that could be violated by service of a summons is both unsupported and meritless. 4 This program, often referred to as “Section 8,” is one of several federal assisted housing programs originating from the United States Housing Act of 1937. 42 U.S.C. § 1437(8)(o) (2008). 25 ORDER — 4 C09-0713-JCC 1 Defendants did not follow statutory procedures for initiating the original unlawful detainer 2 action. But Plaintiff has failed to allege that he was deprived of any protected interest 3 whatsoever. Without some showing that a protected interest is implicated, Plaintiff has created 4 no genuine issue of material fact by which a reasonable jury could find in his favor. See 5 Anderson, 477 U.S. at 248–50. 6 7 Accordingly, Plaintiff’s constitutional claims against Defendants EVHA, Bud Alkire, and Jane Doe Alkire are DISMISSED. 8 B. Fair Debt Collection Practices Act Claim 9 In Plaintiff’s Response, he concedes that he “did not intend to allege the FDCPA’s 10 application to these defendants.” (Dkt. No. 29 at 1.) Accordingly, Plaintiff’s FDCPA claims 11 against Defendants EVHA, Bud Alkire, and Jane Doe Alkire are DISMISSED. 12 C. Washington Consumer Protection Act Claims 13 Finally, Plaintiff brings a claim against Defendants under the Washington State 14 Consumer Protection Act (“WCPA”). WASH. REV. CODE § 19.86. Non-diversity state claims do 15 not come under the Court’s original jurisdiction. The only possible basis in which the Court could 16 exercise jurisdiction over Plaintiff’s WCPA claims would be under federal supplemental 17 jurisdiction pursuant to 28 U.S.C. § 1367. Under § 1367(c)(3), a district court may decline to 18 exercise supplemental jurisdiction over claims if it has dismissed all claims over which it has 19 original jurisdiction. Here, because all federal claims against Defendants EVHA, Bud Alkire, and 20 Jane Doe Alkire have been dismissed as a matter of law, the Court declines to exercise 21 supplemental jurisdiction over Plaintiffs’ remaining state claim. Accordingly, Plaintiffs’ WCPA 22 claim against Defendants EVHA, Bud Alkire, and Jane Doe Alkire is DISMISSED without 23 prejudice for lack of jurisdiction. 24 25 ORDER — 5 C09-0713-JCC 1 2 IV. CONCLUSION For the foregoing reasons, Defendants’ Motion for Summary Judgment (Dkt. No. 20) is 3 hereby GRANTED. All Claims against Defendants Housing Authority of Everett, Bud Alkire, and 4 Jane Doe Alkire are DISMISSED. 5 6 DATED this 5th day of January, 2010. 9 A 10 John C. Coughenour UNITED STATES DISTRICT JUDGE 7 8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORDER — 6 C09-0713-JCC
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