Jose Gracia, and Healthsouth Rehabilitation Center, Intervenor-Appellant, Cross-Appellee v. Brownsville Housing

DENNIS, Circuit Judge,

concurring:

While I concur in the result reached by the majority, I am troubled by the disposition of the § 1983 claim against the authority in Section 11(B) of the majority opinion. In Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 , 107 S.Ct. 766 , 93 L.Ed.2d 781 (1987), the Supreme Court held that tenants living in low-income, housing projects owned by a public housing authority, who alleged that the housing authority overbilled them for their utilities and thereby violated a rent ceiling imposed by the Brooke Amendment to the Housing Act of 1937 ( 42 U.S.C. § 1437 (a)) and the implementing regulations of the federal Department of Housing and Urban Development (HUD), have a private cause of action under 42 U.S.C. § 1983 . The Court stated: “In our view, the benefits Congress intended to confer on tenants are sufficiently specific and definite to qualify as enforceable rights under Pennhurst and § 1983, rights that are not, as respondent suggests, beyond the competence of the judiciary to enforce.” Id. at 432, 107 S.Ct. at 774-75 (footnote omitted).

I understand that we are dealing here with a different section of the Housing Act of 1937 and a different implementing regulation, but the Wright majority held, however, that nothing in the Housing Act or the Brooke Amendment evidences that Congress intended to preclude the tenants’ § 1983 claims against the authority, and that the provision in the HUD regulations for a “reasonable” allowance for utilities was sufficiently specific and definite to qualify as enforceable rights under Pennhurst and § 1983. I am uncomfortable in relying partially on the Wright dissent, as the majority opinion does, in a case under the same Act and in not closely following or applying by analogy the Wright majority’s analysis to the Act’s provisions and the HUD regulation at issue in our case. I realize that the Supreme Court now follows a different approach and does not easily recognize implied private causes of action under federal statutes, but I do not believe we should apply the new approach to a provision *1059 of the Housing Act and a regulation thereunder in view of Wright .

Instead, we should hold simply that the Gracias failed to establish a prima facie case under § 1983 because under Canton v. Harris, 489 U.S. 378 , 109 S.Ct. 1197 , 103 L.Ed.2d 412 (1989), and Monell v. New York City Dept. of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), no reasonable juror could have found that the housing authority’s policy makers were “deliberately indifferent” to the safety needs of the tenants with respect to the condition of trees on the premises. In light of the above observations, the judgments in favor of Trevino and Rubal-caba should be affirmed on the basis of the Texas Tort Claims Act § 101.106, lack of personal participation, and their qualified immunity.