United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, STRIKING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT, AND STRIKING AS MOOT STIPULATED MOTION TO EXTEND TIME
BRIAN A. TSUCHIDA, Magistrate Judge.
Defendants have filed two motions for summary judgment. Seattle Housing Authority ("SHA") seeks a ruling that, as a matter of law: (1) Mr. Tucker failed to provide mandatory presuit notice of his constructive eviction claim; (2) Mr. Tucker has failed to raise an issue of fact in support of his constructive eviction claim; (3) Mr. Tucker failed to adequately plead Monell liability; and (4) Mr. Tucker's 42 U.S.C. § 1983 claims fail for independent reasons. Dkt. 47. Individually named defendants James Fearn and Linda Brosell ("Fearn and Brosell") seek a ruling as a matter of law that: (1) Mr. Tucker failed to provide mandatory pre-suit notice of his § 1983 claims and those claims are consequently time-barred; (2) Mr. Tucker's § 1983 claims should be dismissed; and (3) Mr. Tucker was never entitled to occupy his Section 8 housing rental because he was not qualified for a two-bedroom unit. Dkt. 42. Mr. Tucker has also filed a cross-motion for summary judgment. Dkt. 50. Defendants oppose the motion as untimely. Dkt. 53, Dkt. 54. Having considered the parties' submissions and determined that oral argument is not necessary for disposition of these motions, and for the reasons discussed below, the Court GRANTS defendants' motions, Dkt. 42.; Dkt. 47, and STRIKES Mr. Tucker's cross-motion (Dkt. 50). The Court STRIKES as moot the parties' Stipulated Order to Extend Time for SHA to Serve its Pretrial Statement, Dkt. 61.
The relevant facts are largely undisputed. On September 10, 2010, Mr. Tucker completed a Housing Choice Voucher Program Application for a project-based Section 8 unit. Dkt. 17 at 3. Mr. Tucker signed an Apartment Rental Agreement for a project-based housing unit at the Lam Bow Apartments on October 7, 2010, for a lease term beginning October 7, 2010 and ending September 30, 2011. Dkt. 51-1 at 2. The Lam Bow Apartments are owned and operated by defendant Seattle Housing Authority ("SHA"), a local public housing authority funded through the Department of Housing and Urban Development ("HUD"). Dkt. 50 at 2. Pursuant to the lease agreement, the Lam Bow apartment rented for $948.00 per month; the lease also required a $400.00 security deposit and a $200.00 nonrefundable fee. Dkt. 51-1 at 2-3. Mr. Tucker was responsible for $200.00 of the monthly rent. Dkt. 45 at 3. Upon move-in, Mr. Tucker paid $200.00 toward his obligations and arranged for assistance from Neighborhood House (a local non-profit organization) to pay the security deposit. Dkt. 51 at 2; see also Dkt. 41 at 22-23. Defendants contend Mr. Tucker never paid the remainder of the amounts due and owing on the Lam Bow unit. Dkt. 45 at 6-7; Dkt. 60 at 3-4. Mr. Tucker inspected the Lam Bow unit on October 7, 2010, and completed an inventory and inspection form. Dkt. 39 at 2, 26. The form indicated the carpets needed replacing and the overall condition of the unit was "fair." Id. at 26. Mr. Tucker moved in to the unit on October 18, 2010. Dkt. 51 at 2.
On October 21, 2010, a section of the unit's kitchen ceiling collapsed, causing damage to the kitchen and carpeting. Dkt. 17 at 5. On October 22, 2010, Mr. Tucker completed a second inventory and inspection form, wherein he documented that the unit was in poor condition, the kitchen ceiling had fallen, there was water on the floor with an associated "stink, " and the carpet was wet. Dkt. 39 at 34. SHA moved Mr. Tucker and his daughter to temporary housing at the Longfellow Creek Apartments, a separate SHA complex. Dkt. 17 at 5. The Longfellow Creek apartments are not project-based units. Id. Defendants aver that by October 28, 2010, SHA repaired a leak in the kitchen in Mr. Tucker's Lam Bow unit, shampooed the carpets, and cleaned the kitchen counters and floors. Dkt. 45 at 3; Dkt. 39 at 4. Shurvon Wright, a Property Manager at SHA, inspected the unit on October 25, 2010, and determined it was "rent-ready." Dkt. 39 at 4. Mr. Tucker avers that after Ms. Wright informed him the unit was ready, he inspected it and determined the ceiling repair had not been completed, had debris and dirty water in it, and smelled like mold. Dkt. 51 at 2.
Defendants contend that on October 26, 2010, Mr. Tucker informed Ms. Wright he did not want to return to the Lam Bow unit and he wanted to remain at the Longfellow Creek unit. Dkt. 39 at 4. By letter dated October 26, 2010, Ms. Wright informed Mr. Tucker that the Lam Bow unit had been repaired and cleaned and would be ready for occupancy the following day. Dkt. 39 at 43. The letter also stated that Mr. Tucker could terminate his lease, but that his subsidized rent was tied to the Lam Bow Apartments. Id. The letter requested that, if Mr. Tucker chose to vacate his unit, he should inform Ms. Wright of that intent by the next day, October 27, 2010. Id.
By letter dated October 29, 2010, SHA informed Mr. Tucker that the Longfellow Creek unit Mr. Tucker was occupying did not accept "mobile" housing vouchers, that his Lam Bow voucher would not transfer to the Longfellow Creek unit, and that the monthly rent for the Longfellow Creek unit was $750.00. Dkt. 51-3 at 2. The letter stated Mr. Tucker would need to inform the Longfellow Creek leasing office whether he intended to lease that unit for $750; in the alternative, he could present a valid voucher for the unit or move out. Id. Mr. Tucker avers that after Ms. Wright informed him that repairs to the Lam Bow unit were complete, he went to inspect the apartment and found that the ceiling repair had not been completed, and there was still debris and dirty water in the apartment. Dkt. 51 at 2. Mr. Tucker returned his keys to the Lam Bow unit that same day. Mr. Tucker continued to remain at the Longfellow Creek apartment but did not sign a lease for that unit and did not pay any portion of the rent for that unit. Dkt. 45 at 4.
By notice dated November 2, 2010, Mr. Tucker was informed he had three days to vacate the Longfellow Creek unit. Dkt. 51-6 at 2-3. In early November, Mr. Tucker contacted Jim Metz with the City of Seattle Department of Planning and Development ("DPD"), and showed him video footage of the Lam Bow unit's collapsed ceiling. Dkt. 52-4 at 2-12. DPD refused to inspect the Lam Bow unit for mold unless Mr. Tucker was occupying the unit. Id. at 5. On November 8, 2010, Terry Frye, SHA's asbestos and mold remediation worker, inspected the Lam Bow unit and found no mold or mold scent. Dkt. 39 at 47; Dkt. 45 at 66-67. That same day, Ms. Brosell forwarded Mr. Frye's report and delivered photographs of the unit to Mr. Metz. Dkt. 52-6 at 3.
By letter dated November 10, 2010, Mr. Tucker informed SHA he did not want to return to the Lam Bow apartment because he did not want to expose himself or his daughter to mold. Dkt. 51-7. The letter further requested that SHA permit Mr. Tucker and his daughter to live in a unit at the Longfellow Creek apartments. Id. Via email on November 16, 2010, Ms. Wright informed Ms. Brosell and other SHA staff "[w]e have moved [Mr. Tucker] out of Lambow and are now showing A206!" Dkt. 52-8 at 3. Ms. Brosell replied that there was no obligation to show Mr. Tucker any additional units, stating "Please DO NOT RENT ANY UNIT TO HIM- including the original unit he was in unit [ sic ] unless you work with legal and he signs a release of any and all claims." Dkt. 52-8 at 2-3. On or around that time, SHA released the Lam Bow unit to be leased by a new tenant. Dkt. 39 at 5; Dkt. 45 at 6. Mr. Tucker was subsequently evicted from the unit he occupied at Longfellow Creek. Dkt. 51 at 3.
A. Summary Judgment Standard
Summary judgment should be granted if the record, taken as a whole, shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue of fact is "genuine" if it constitutes evidence with which "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248. The moving party can carry its initial burden by producing affirmative evidence that negates an essential element of the nonmovant's case, or by establishing that the nonmovant lacks the quantum of evidence needed to satisfy its burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). There can be no genuine issue as to any material fact where there is a complete failure of proof as to an essential element of the nonmoving party's case because all other facts are thereby rendered immaterial. See Celotex v. Cattret, 477 U.S. 317, 323 (1986).
The evidence is viewed and reasonable inferences are drawn in the light most favorable to the nonmoving party. United States v. Johnson Controls, Inc., 457 F.3d 1009, 1013 (9th Cir. 2006). Nevertheless, the opposing party may not rest solely upon the pleadings' allegations or denials, but must present significant probative evidence that is sufficient to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248-50. The opposing party must offer more than a mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The mere existence of a scintilla of evidence is likewise insufficient to create a genuine factual dispute. Anderson, 477 U.S. at 252.
The Court may consider any unopposed assertion of fact to be an undisputed fact for purposes of the motion. Fed.R.Civ.P. 56(e)(2). If a party fails to properly address another party's assertion of fact, the Court may "grant summary judgment if the motion and supporting materials-including the facts ...