# Petition for Writ of Certiorari — Cox v. City of Dallas, Texas (No. 05-1226)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

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make their dwellings available for sale is
decreased. For example, Federal Housing
Administration (FHA) mortgage appraisal
guidelines require the appraiser to identify all
inharmonious land uses that present a serious
detriment to either the health or safety of the
occupants or to the economic security of the
property, note such detriments, and recommend
that the property be rejected by the lender.
Adjoining or nearby hazards such as chemical
fumes, odors that are hazardous to the health of
neighborhood occupants and adversely affect the
market value of the property require the
appraiser to return the unfinished appraisal to
the lender. Without a finished appraisal, the loan
cannot be approved. Pet. App. 122a - 128a.

Petitioners also alleged purposeful violations of
the Fair Housing Act, 42 U.S.C. § 3604(a) and § 3604(b),
the Equal Protection clause of the Fourteenth
Amendment to the U.S. Constitution and 42 U.S.C.
- $1981. Petitioners sought damages under all of their
claims. Pet. App. 81a.

The City moved for summary judgment on all of
the Fair Housing Act claims solely on the grounds that
since petitioners had already purchased their homes
before the alleged policy began, the City could not have
made their homes unavailable to them or discriminated
against them in the provision of services related to the
earlier acquisition of their homes. Pet. App. 84a.

The district court found that the summary
judgment evidence raised an issue of fact on the
discriminatory effects of the City’s actions. Pet. App.
95a - 96a. Nevertheless, the district court granted the
motion on the Fair Housing Act claims for the sole

7

reason that since petitioners already owned their
homes, the City had not made petitioners’ homes
unavailable to petitioners. Therefore, according the
district court, the petitioners did not state a claim for
relief under the Fair Housing Act.

To affect the availability of housing within the
meaning of the FHA, the discriminatory actions
must have a direct impact on plaintiffs' ability, as
potential home buyers or renters, to locate in a
particular area or to secure housing. Pet. App.
84a.

In this case, it is undisputed that Plaintiffs own
the homes in which they live. (See Pl.'s MSJ Br.
at 2.) Plaintiffs do not allege that the City has
refused to sell or rent to them after the making
of a bona fide offer, or has refused to negotiate
for the sale or rental of a dwelling to them for
any discriminatory reasons. They claim that
illegal dumping at the Deepwood site decreased
the habitability of their homes and made their
homes harder to sell. (/d. at 9-10.) Pet. App. 85a.
To recover under §§ 3604(a), Plaintiffs
must prove that the City has made unavailable
or denied them dwellings on a prohibited basis.
Section 3604(a) protects the right of individuals
to live where they choose, but it does not protect
intangible interests in already-owned property,
such as_ habitability or value. Southend
Neighborhood Improvement Ass'n v. County of
St. Clair, 743 F.2d at 1210; see also Jersey
Heights Neighborhood Ass'n v. Glendening, 174
F.3d 180, 192-93 (4th Cir.1999). Because no
reasonable trier of fact could find that the City

8.

made unavailable or denied a dwelling to
Plaintiffs within the meaning of the FHA, the
City is entitled to summary judgment with
respect to Plaintiffs' claims under §§ 3604(a)
Pet. App. 85a-86a.

Accordingly, the Court holds that §§ 3604(b)
applies only to discrimination in the provision of
services that precludes the sale or rental of
housing. Because Plaintiffs here have not alleged
discrimination related to the acquisition of their
homes, the City is entitled to summary judgment
on Plaintiffs' claims brought under §§ 3604(b).
Pet. App. 89a.

This Court has previously held that because
Plaintiffs own their homes and no reasonable
trier of fact could find that the City made
unavailable or denied a dwelling to them within
the meaning of the FHA, the City is entitled to
summary judgment with respect to their claims
brought under §§ 3604(a) and (b) of the FHA.
Pet. App. 91a.

The summary judgment on the Fair Housing Act
claims prevented petitioners from obtaining a trial on
those claims. As pointed out by the Court of Appeals,
trial of the Fair Housing Act claims would have
proceeded under both a respondeat superior standard
and a discriminatory effects test liability standard. In
their Fair Housing Act proof, petitioners would not
have had the burden to show either discriminatory
purpose or direct involvement of the City of Dallas City
Council or other policymakers. Pet. App. 17a. The
district court later ruled against petitioners’ on their

9

purposeful discrimination claims after a trial on the
merits. Pet. App. 36a. The district court ruled that
petitioners had not shown either a discriminatory
purpose nor the direct involvement of the City Council
or Board of Adjustment in the policy at issue. Pet. App.
62a-63a, 69a. The Court of Appeals affirmed these
findings. Pet. App. 22a.’

The Court of Appeals affirmed the summary
judgment on the Fair Housing Act claims on the
grounds that the injuries asserted by petitioners, the
barriers to the sale of their homes and_ the
accompanying diminution in value, were not injuries
prohibited by the Fair Housing Act.

Plaintiffs argue that the City violated § 3604(a)
because the dump makes it more difficult for
them to sell their houses and lowers the value of
their houses. This claim enjoys factual support,
but it is not a claim of “unavailability” or “denial”
of housing under a proper reading of the FHA.
Pet. App. 10a-1la.

The failure of the City to police the Deepwood
landfill may have harmed the housing market,
decreased home values, or adversely impacted
homeowner; “intangible interests,” but such
results do not make dwellings “unavailable”
within the meaning of the Act. Pet. App. lla.

... These cases buttress our conclusion that the
simple language of § 3604(a) does not apply to

' The disposition of petitioners’ purposeful discrimination claims
under the Equal Protection clause of the Fourteenth Amendment
to the U.S. Constitution and 42 U.S.C. § 1981 is not the subject for
which review is sought because that disposition involved fact
determinations by the district court and the Court of Appeals.

10
current homeowners whose complaint is that the
value or habitability of their houses has
decreased because such a complaint is not about
“availability.” Pet. App. 13a.

We hold only that § 3604(a) gives no right of
action to current owners claiming that the value
or habitability of their property has decreased
due to discrimination in the delivery of
protective city services. Pet. App. I4a.

Because housing was not made “unavailable” to
plaintiffs, the district court’s rejection of their §
3604 (a) claim was proper. Pet. App. 16a.

Even assuming that the enforcement of zoning
laws alleged here is a “service,” we hold that §
3604(b) is inapplicable here because the service
was not “connected” to the sale or rental of a
dwelling as the statute requires. Pet. App. 17a.

The claims here do not assert the requisite
connection between the alleged discrimination
and the sale or rental of a dwelling - that is §
3604(b) does not aid plaintiffs, whose complaint
is that the value or “habitability” of their houses
has decreased. Pet. App. 18a.

The Court of Appeals made it clear that its 42
U.S.C. § 3604(b) ruling was premised directly on
petitioners’ status as existing homeowners. This is clear
from the Court of Appeals’ statement when it added
two possible exceptions to its rule that no existing
homeowners have a 42 U.S.C. § 3604(b) claim.

1]

This is not to say that § 3604(b) applies only if
the plaintiff was precluded from finding housing.
For example, § 3604(b) may encompass a claim of
a current owner or renter for attempted and
unsuccessful discrimination relating to the initial
sale or rental or for actual or constructive
eviction. Pet. App. 18a.

These narrow exceptions do not extend Fair
Housing Act protection to homeowners whose ability to
sell has been blocked or impeded by the discriminatory
provision of municipal services connected to the sale of
dwellings. Nor does it recognize Fair Housing claims in
which discrimination results in economic loss or damage
to intangible interests of a home owner.

REASONS FOR GRANTING THE PETITION

The judgments below directly and unequivocally
contradict this Court’s decisions holding that 42 U.S.C.
§ 3604 provides a statutory claim for those who already
occupy their dwelling units but whose economic or
intangible interests are injured by actions making
dwellings unavailable to others because of race.
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205
(1972); Gladstone Realtors v. Village of Bellwood, 441
U.S. 91 (1979); Havens Realty Corp. v. Coleman, 455
U.S. 368, 375-376 (1982). In this case, it was petitioners’
own homes that were being made unavailable to others
because of the City’s racially discriminatory policy that
caused and maintained the existence of the illegal
landfill in their neighborhood.

The judgments below directly conflict with the
decisions of other Circuits that explicitly cite the

12

Trafficante-Bellwood-Havens Realty precedent and
hold that owners and tenants indirectly injured by
practices alleged to make housing unavailable on
prohibited grounds do have aggrieved person claims
under 42 U.S.C. § 3604.

The judgments below directly affect not just the
interests of petitioners and other homeowners but also
the interests of fair housing organizations throughout
the country. These organizations, while not themselves
refused the right to purchase or rent a dwelling, do
have indirect injuries that state an aggrieved person
claim for relief under this Court’s precedent and the
Court of Appeals’ cases following that precedent.
Havens Realty 455 U.S. at 378 - 379; City of Chicago v.
Matchmaker Real Estate Sales Center, Inc., 982 F.2d
1086, 1094 - 1095 (7 Cir. 1992). The lower court
opinions eliminate these claims by fair housing
organizations by eliminating indirect injury as an
element of a 42 U.S.C. § 3604 claim for relief.

1. The judgments’ below. directly and
unequivocally contradict this Court’s decisions holding
that 42 U.S.C. § 3604 provides a statutory claim for
relief to existing homeowners whose economic or
intangible interests are injured by actions making
dwellings unavailable to others because of race.

The Fair Housing Act specifically sets out the
definition of persons who have a claim for relief to seek
damages and other remedies for violations of that Act.
The Act gives “aggrieved persons” a claim for relief
under its provisions.

An aggrieved person may commence a civil
action in an appropriate United States district
court or State court ... to obtain appropriate
relief with respect to such discriminatory

13
housing practice ....42 U.S.C. § 3613(a)(1)(A).

An “aggrieved person” is any person who
“claims to have been injured by a discriminatory
housing practice” or who believes that they “will be
injured by a discriminatory housing practice that is
about to occur.” 42 U.S.C. § 3601(i).

-A “discriminatory housing practice” means an
act that is unlawful under 42 U.S.C. § § 3604, 3605, 3606,
or 3617. 42 U.S.C. § 3601(f).

The relevant provisions of 42 U.S.C. § 3604 state:

It shall be unlawful--

(a) To refuse to sell or rent after the making of a
bona fide offer, or to refuse to negotiate for the
sale or rental of, or otherwise’ make
unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial
status, or national origin.

(b) To discriminate against any person in the
terms, conditions, or privileges of sale or rental
of a dwelling, or in the provision of services
or facilities in connection therewith, because
of race, color, religion, sex, familial status, or
national origin. 42 U.S.C.§ 3604. (Emphasis
added).

The U.S. Department of Housing and Urban
Development (HUD) interprets 42 U.S.C. § 3604 to
prohibit the provision of municipal services in a manner
that makes dwellings unavailable because of race. The
relevant provisions of the HUD regulations state:

b) It shall be unlawful, because of race, color,
religion, sex, handicap, familial status, or

14

national origin, to engage in any conduct relating
to the provision of housing or of services and
facilities in connection therewith that otherwise
makes unavailable or denies dwellings to persons

(d) Prohibited activities relating to dwellings
under paragraph (b) of this section include, but
are not limited to:

(4) Refusing to provide municipal services or
property or hazard insurance for dwellings or
providing such services or insurance differently
because of race, color, religion, sex, handicap,
familial status, or national origin. 24 C.F.R. §
100.70(d)(4)(Emphasis added).

The HUD interpretation on the scope of the Fair
Housing Act’s prohibitions is entitled to deference and
great weight. Meyer v. Holley, 537 U.S. 280, 287 (2003);
Nationwide Mutual Insurance Co. v. Cisneros, 52 F. 3d
1351, 1360 (6'" Cir. 1995), cert. denied, 516 U.S. 1140
(1996). The Court of Appeals’ decision in this case
accepted the rule that municipal services making
dwellings unavailable could be a discriminatory housing
practice and cited the cases so holding. Pet. App. 30a

* HUD’s statements that discriminatory municipal services that
affect the availabilit} of housing are within the scope of
discriminatory housing practices are at 54 Fed. Reg. 3232, 3240,
January 23, 1989 and 53 Fed. Reg. 44992, 44997, November 7, 1988.
* The discriminatory housing practice at issue in Cisneros was the
cancellation of homeowners’ insurance to complainants already
owning their homes. The Court of Appeals for the Sixth Circuit
rejected the argument that since the cancellation had not made the
homes unavailable to the owners, the action was not covered by 42
U.S.C. § 3604. Cisneros, 52 F. 3d at 1354-1355, 1357.

15

n34, The Court of Appeals in this case did not dispute
the HUD interpretation that municipal services were
covered by the Fair Housing Act but rather held that
the language in 24 C.F.F. § 100.70(d)(4) supported the
court’s view that such conduct was illegal only when
challenged by buyers rather than by those who already
owned their homes. Pet. App. 28a-29a n30.

Neither of the lower courts in this case ruled
that the City’s actions did not make housing unavailable
by rendering the homes in the neighborhood ineligible
for purchase money mortgages. The Court of Appeals
explicitly found that the proof supported petitioners’
allegations that the City’s actions had made their
homes more ifficult to sell. Pet. App. 10a-lla. It
affirmed the dismissal of petitioners’ claims on the
grounds that this evidence and other evidence of the
effect of the City’s actions on the housing market was
irrelevant because petitioners themselves had already
acquired their homes before the illegal landfill began
operation. Pet. App. lla.

Rather than hold that the City’s actions had not
made housing unavailable, both lower courts focused on
the injuries asserted by petitioners for the basis for
dismissing the claims. Those injuries were not the
direct injury of being denied the opportunity to
purchase but rather the injury of being denied the
opportunity to sell because of race and_ the
accompanying loss of property value. Both courts held
that since these injuries were not the subject of specific
prohibitions in the Act, petitioners had no claim. Pet.
App. lla, 85a. -

The lower courts looked in the wrong place for
the actionable injury. Some of the injuries from
discriminatory housing practices can be directly
deduced from the wording of the practices prohibited.

16

A discriminatory refusal to rent inflicts the direct
injury of being denied a dwelling unit to rent. However,
the text of the Act does not state, describe, or limit the
injuries that will satisfy the “have been injured” or
“will be injured” provisions of the sections defining the
persons with a claim for relief under the Act. 42 U.S.C.
§§ 3601, 3613. Nor has HUD defined the injuries that
establish the aggrieved person claim for relief. 24
C.F.R. Part 100.

It is this Court that has supplied the answer to
the question of what type of injury satisfies the claim
for relief section of the Fair Housing Act. The answer is
that, in addition to the direct injury that results from a
discriminatory housing practice such as being refused
the opportunity to buy a dwelling because of race, any
injury that satisfies the case or controversy
requirement of Article III of the U.S. Constitution and
is caused by a discriminatory housing practice satisfies
the aggrieved person requirement for stating a claim
for relief under 42 U.S.C. § 3604.

This Court first held that any such ‘injury that
satisfies the Article III case or controversy standard is
sufficient for an aggrieved person Fair Housing Act
claim in Trafficante v. Metropolitan Life Ins. Co., 409
U.S. 205, 210 (1972). In Trafficante, whites who were
existing tenants at an apartment complex claimed that
the landlord was refusing to rent to black applicants.
The white tenants, whose dwellings clearly had not
been made unavailable to them, asserted that their
intangible interests in a racially integrated apartment
complex were injured by discriminatory housing
practices. This Court held that the alleged injury to the
intangible interests associated with racially integrated
housing satisfied the case or controversy requirement.
No more was required to bring the existing tenants

17

within the statutory definition of aggrieved persons
stating a Fair Housing Act claim. /d. at 212. The lower
court decisions overturned by this Court in T'rafficante
had held that since the petitioners had not themselves
been denied the rental of a unit because of race, they
were not the direct objects of a discriminatory housing
practice and thus were not aggrieved persons for
purposes of stating a Fair Housing Act claim.
Trafficante v. Metropolitan Life Ins. Co., 322 F.Supp.
352, 353 (N.D. Cal. 1971); Trafficante v. Metropolitan
Life Ins. Co., 446 F.2d 1158, 1162 (9'" Cir. 1971). The
lower court decisions at issue in this petition are based
on the same rule rejected by this Court in Trafficante,
409 U.S. at 212.

This Court, in a subsequent case, applied the
aggrieved person standard to hold that existing
homeowners who claimed that their property values
were being diminished had stated an aggrieved person
claim for relief under the Fair Housing Act. Bellwood,
441 U.S. at 103 n.9, 109, 115. The Bellwood homeowners
alleged that their injury was inflicted by the
defendants’ discriminatory housing practices steering
black potential home buyers to the petitioners’
-neighborhood while steering white potential home
buyers to other neighborhoods. The Court did not
decide whether or not this was a discriminatory
housing practice. Jd. at 115 n32. The Court did decide
that the economic and other injuries alleged by the
homeowners stated an an aggrieved persons Fair
Housing Act claim. /d. at 109, 115. This is the same
injury rejected by the lower courts in this case as
sufficient to support a Fair Housing Act claim. Pet.
App. 10a, 18a, 85a.

Neither the Trafficante plaintiffs nor the
Bellwood plaintiffs would have survived the test for

18

stating an aggrieved person claim applied by the lower
courts in this case. The intangible interests in an
integrated community at issue in Trafficante are not
listed in the Fair Housing Act, 42 U.S.C. § 3604. The
economic and other injuries caused by the manipulation
of the housing market in Bellwood are not injuries
listed in the Fair Housing Act, 42 U.S.C. § 3604.
Neither the Trafficante nor the Bellwood plaintiffs
could show that they themselves had been denied a
dwelling by the challenged practices. They had not.
Trafficante, 409 U.S. at 206. But since this Court found
that the injuries satisfied both the aggrieved person
statutory test and the Article III case or controversy
injury test, those plaintiffs stated aggrieved -person
claims under the Fair Housing Act. Trafficante, 409
U.S. at 208, 212; Bellwood, 441 U.S. at 103 n9, 109, 115.
This Court subsequently reaffirmed its
aggrieved person claim holding and extended the scope
of those with an aggrieved person claim for relief to fair
housing organizations alleging indirect injuries from
discriminatory. practices. Havens Realty Corp v.
Coleman, 455 U.S. 363 (1982). The Court re-affirmed its
prior holding that residents alleging the loss of social,
professional, and economic benefits from the
discriminatory housing practices affecting not their
ability to buy or rent but the opportunities of others
were aggrieved persons for purposes of stating a 42
U.S.C. § 3604 claim. /d. at 376 - 77. The Court went on
to rule that a local fair housing organization that was
neither a prospective buyer or renter nor an existing
homeowner could state an aggrieved person claim for
relief. The fair housing organization could not allege
that it had been denied the opportunity to buy or rent.
Instead it alleged that the discriminatory housing
practices perceptibly impaired its ability to provide

19

counseling and referral services for low-and moderate
income homeseekers. The Court held that with this
injury the organization could satisfy the required
aggrieved person status for stating a claim under the
Act. Id. at 378-879. Neither the existing homeowners
nor the fair housing organization in Havens Realty
Corp. would have satisfied the direct injury restriction
on the aggrieved person claim for relief imposed by the
lower courts in this case.

The Court of Appeals in this case made no effort
to reconcile its holding with this Court’s Trafficante,
Bellwood, and Havens Realty precedent on the injury
element of the statutory aggrieved person claim for
relief established by the Act, 42 U.S.C. § 3613(a)(1)(A).
The court cites Bellwood in a footnote listing it as a
“non-controlling” case because it deals with situations
where current owners are suing because houses have
been made unavailable to others. Pet. App. 24a - 25a,
nl&. This is inexplicable. Petitioners directly claimed
that the City’s practices made their dwellings
unavailable to others, at least to others seeking to use
Federal Home Administration mortgages. Pet. App.
122a - 123a. The court found that the proof supported
petitioners’ claim that the City’s actions made their
homes harder to sell. Pet. App. 10a - lla. Bellwood
directly controls this case. The dismissive footnote does
not eliminate the contradiction between the Court of
Appeals and this Court’s precedent.

2. The lower courts’ judgments that because
petitioners were not denied the right to purchase or
lease their homes they do not have an aggrieved person
claim under 42 U.S.C. § 3604 directly conflict with the
decisions in other circuits that have followed this
Court’s precedent for determining aggrieved person
claims in Trafficante, Bellwood, and Havens Realty.

20

The black homeowners challenging zoning actions in
Fair Housing in Huntington Committee Inc. v. Town
of Huntington, 316 F.3d 357, 362 - 68 (2d Cir. 2003)
stated an aggrieved person claim. Local homeowners
stated an aggrieved persons claim for religious
discrimination in zoning that made _ dwellings.
unavailable to others of their religion. LeBblanc-
Sternberg v. Fletcher 67 F.3d 412, 424 - 25, 428 (2d Cir.
1995), cert. denied, 520 U.S. 1268 (1997). A homeowner
stated an aggrieved person claim for familial status
discrimination against potential buyers in Hamad v.
Woodcrest Condominium Ass'n, 328 F.3d 224, 230 - 32
(6 Cir. 2003) on a mere showing that the number of
potential buyers had been’ reduced by _ the
discriminatory conduct, not that they had_ been
foreclosed from selling. /d. at 230. An -existing
homeowner denied homeowners’ insurance stated an
aggrieved person claim in United Farm Bureau Mut.
Ins. Co., Ine. v. Metropolitan Human Relations Com'n,
24 F.3d 1008, 1010, 1015 -1016 (7"" Cir. 1994). A tenant
claiming associational and other injuries from steering
stated an aggrieved person claim in Harris v.
Itzhaki,183 F.3d 1048, 1049 - 50 (9 Cir. 1999). The
owners of a building they sought to sell for use as
dwellings stated an aggrieved person claim in San
Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d
470, 475 - 76 (9° Cir. 1998). A public housing tenant
residing next to the site of proposed project to be built
in black neighborhood stated an aggrieved person claim
in Jackson v. Okaloosa County, Fla., 21 F.8d 1531, 1589
- 40 (11 Cir, 1994),

The cases cited by the lower courts in this case
for the proposition that existing property owners do
not have an aggrieved person claim either do not cite,
discuss or follow the Trafficante, Bellwood, or Havens

21

Realty aggrieved person claim for relief precedent.
Southend Neighborhood Imp. Ass'n v. St. Clair County,
743 F.2d 1207, 1209 - 10 (7'" Cir.1984) cites Trafficante
once but only for the general principle that courts have
broadly applied the Fair Housing Act. The assertion
that the Act does not protect the intangible interests in
the already-owned property raised by the plaintiffs’
allegations is made without any reference to the
Trafficante-Bellwood-Havens Realty precedent.
Southend, 748 F. 2d at 1210. Tenafly Eruv Ass'n, Inc. v.
Borough of Tenafly, 309 F.3d 144 (3 Cir. 2002), cert.
dented, 538° U.S. 942 (2003) does not include any
discussion of or cites to the Trafficante-Bellwood-
Havens Realty precedent. Halprin v. Prairie Single
Family Homes of Dearborn Park Ass'n, 388 F.3d 327,
328-329 (7'" Cir. 2004) mentions Trafficante but avoids
its impact by claiming that the applicability of the Fair
Housing Act to post-sale discrimination was not an
issue in that case. The court in Jersey Heights
Neighborhood Ass'n v. Glendening, 174 F.3d 180, 192 -
193 (4'" Cir. 1999) did not discuss injury.

The district court opinion in this case has already
begun to contribute to additional splits in decisions. In
King v. Metcalf 56 Homes Ass’n, WL 2538379, *2-3 (D.
Kan. 2004), the district court cited the district court
opinion in this case as support for the holding that 42
U.S.C. § 3604 does not apply unless the plaintiff alleges
that the conduct prevented her from acquiring the
dwelling. The district court in King dismissed the 42
U.S.C. § 3604 claim on the same grounds as the lower
courts in this case - the plaintiff had already acquired
the housing. The King court does not discuss or
mention the Trafficante or Bellwood precedent. Jd. The
district court decision in this case was -also cited as
precedent for the same proposition in at least one case

-

22
in which the United States was seeking damages on
behalf of individual aggrieved persons. The district
court in that case rejected the proposition and held that
an aggrieved person claim for relief can be based on
indirect injuries. U.S. v. Koch, 352 F.Supp.2d 970, 972
(D. Neb. 2004).

3. Following Havens’ recognition of the role of
local fair housing organizations in seeking relief as an
aggrieved person on their own _ behalf, these
organizations have used the aggrieved person claim for
relief recognized by this Court to enforce the provisions
of the Fair Housing Act. City of Chicago, 982 F.2d at
1094 -1095; Fair Housing of Marin v. Combs, 285 F.3d
899, 905 (9'" Cir. 2002); Walker v. Todd Village, LLC,
2006 WL 618812, *1 (D.Md. 2006). Recognizing the
integral role that these fair housing organizations play
in the private enforcement of the Fair Housing Act, the
U.S. Congress passed and funded a program to provide
a national system of such fair housing organizations. 42
U.S.C. § 3616(a), Pet. App. 103a; 24 C.F.R. §125.401,
Pet. App. 114a« But-the rule providing a 42 U.S.C. §
3604 aggrieved person claim for relief only to direct
victims of a refusal to sell or rent set by the lower
courts in this case will substantially impair the
functioning of this Congressionally recognized and
funded fair housing enforcement mechanism. Douglas,
“Standing on Shaky Ground: Standing Under the Fair
Housing Act,” 34 Akron L. Rev. 613, 634 (2001);
Schwemm, “The Fair Housing Act After Twenty
Years,” 6 Yale Law and Policy Review 375, 381-382
(1988). These organizations, like petitioners, have not
themselves been denied the opportunity to buy or rent
a dwelling. But these organizations, like petitioners,
have suffered indirect injuries that provide them with
an aggrieved person claim for relief under 42 U.S.C. §

23
3604. Havens, 455 U.S. at 378-379. If the lower courts’
decisions are allowed to stand, there will be significant
precedential barriers to the functioning of these
organizations as part of the national system for private
enforcement of the F'air Housing Act.

CONCLUSION

The petition for writ of certiorari should be
granted.

Respectfully submitted,

Michael M. Daniel

Counsel of Record

Laura B. Beshara

DANIEL & BESHARA, P.C.
3301 Elm Street

Dallas, Texas 75226-1637
214-939-9230

214-741-3596 (Fax)

la

(any footnotes trail end of each document)
No. 04-11304
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

HAROLD COX; SHIRLEY DAVIDSON; ROBERT
STUBBLEFIELD; CYNTHIA HERRING; ELOISE
EDWARDS; BETTY CURLEY; LEO EASTER,
Plaintiffs-Appellants,

Versus

CITY OF DALLAS TEXAS; ET AL,
Defendants,

CITY OF DALLAS TEXAS,
Defendant-Appellee.

November 9, 2005, Filed

COUNSEL: For HAROLD COX, SHIRLEY
DAVIDSON, ROBERT STUBBLEFIELD,
CYNTHIA HERRING, ELOISE EDWARDS,
BETTY CURLEY, LEO EASTER, Plaintiffs -
Appellants: Michael M Daniel, Laura Beth Beshara,
Dallas TX.

For CITY OF DALLAS TEXAS, Defendant -
Appellee: Janice Smith Moss, Assistant City Attorney,
Caroline Jordan, City Attorney's Office for the City of
Dallas, Dallas, TX.

For BAZELON CENTER FOR MENTAL HEALTH
LAW, FAIR HOUSING ACTION CENTER,
LAWYERS' COMMITTEE FOR CIVIL RIGHTS

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UNDER LAW, NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE,
NATIONAL FAIR HOUSING ALLIANCE, NEW
YORK LAWYERS FOR THE PUBLIC INTEREST,
Amicus Curiae: Reed N Colfax, Relman & Associates,
Washington, DC; Denise L Gilman, Washington
Lawyers' Committee for Civil Rights, Washington, DC.

JUDGES: Before HIGGINBOTHAM, JONES and
DeMOSS, Circuit Judges.

OPINIONBY: PATRICK E. HIGGINBOTHAM

OPINION: PATRICK E. HIGGINBOTHAM, Circuit
Judge:

Asserting racial discrimination, homeowners sued the
City of Dallas under the Fair Housing Act and 42
U.S.C. §§ 1981 and 1983 for persistent failure to police
the operation of an illegal dump near their homes. The
district court granted summary judgment to the City
on the Fair Housing Act claim and ruled for the City on
the §§ 1981 and 1983 claims after a bench trial. We
affirm.

I

The City annexed the Deepwood neighborhood in 1956
and zoned it residential. In 1963, the City issued a
certificate of occupancy for a gravel pit, part of a sand
and gravel mining operation, at 523 Deepwood Street.
The pit required a certificate because it was a non-
conforming use. The City also re-zoned as industrial a
portion of the &5-acre site and issued a specific use
permit for a mining operation.

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Plaintiffs purchased homes in Deepwood between 1970
and 1978. It was a predominately white neighborhood
according to the 1970 U.S. Census. By the 1980 Census,
it was predominately black. During the early years of
this decade of racial transition, there was open dumping
of solid waste at the site, prompting visits to the site by
City and state officials. Their response was a call for
continuing surveillance.

Terry Van Sickle owned V.V. Construction. He also
owned the site from 1982 through 1992. In March of
1982, V.V. Construction applied for a permit to remove
sand and gravel from the site, assuring the City that it
would fill the old pits with solid waste. The permit was
issued the following month.

Within six months, one of the plaintiffs in this action
filed a complaint with the City, alleging massive illegal
dumping at the site. The City responded that Van
Sickle had been cited for improperly conducting a
sanitary landfill operation in a residentially zoned area.
Weekly re-inspections followed but, as late as
December 9, 1982, had detected no additional illegal
dumping. Plaintiffs had a different take. They continued
to complain at City Council meetings about dumping. In
the first four months of 1983, residents appeared five
times at City Council meetings, each time expressing
concern about the site; in particular, they voiced
concerns about truck traffic, noise, air pollution, and
illegal dumping.

On February 4, 1983, responding to these complaints,
the Assistant City Manager advised the mayor and the
City Council that Van Sickle had been fined for
operating a sanitary landfill on the site and that illegal

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dumping had ceased. The manager offered the view
that once truck traffic to the site was diverted away
from residential streets, most of the residents' concerns
would be resolved. That did not prove to be accurate.
Complaints by residents of Deepwood continued, as did
the efforts of staff to reassure the elected officials. On
May 18, 1983, a City employee sent a memo to a City
Councilwoman describing the site and indicating that
no contaminants were found in the soil or water table
and that continued monitoring was to take place every
four to six months for five years. Again, despite these
assurances, residents continued to complain that trash
was being dumped at the site.

The City Council remained attentive, if ineffectual,
requesting that the Board of Adjustment hold a public
hearing to consider terminating the nonconforming use
of the site. The resolution requesting the hearing
pointed to the operation of a "stone, sand, or gravel
mining use" on the property. It did not mention the
complaints that it was being used as an illegal dump.

The Board of Adjustment held the requested hearing
on July 26, 1988 to consider revoking the certificate of
occupancy for the nonconforming sand and gravel
mining operation. The board members visited the site
on the morning of the hearing. In preparation for the
inspection, however, Van Sickle had moved the trash
and covered it with dirt. At the hearing, he testified
that he had removed a considerable amount of trash
from the site and that he planned to mine gravel for two
more years and fill the resulting hole for another three
years. Two other individuals supported continuing the
nonconforming use. While two residents sent letters of
opposition to this plan to the Board of Adjustment,

\

Da
none attended the hearing. At the conclusion of the
hearing, the board decided to take no action to revoke
the certificate and to call another hearing in nine
months. There is no evidence in the record that the
board ever again considered the matter.

While Van Sickle owned the site, two City demolition
contractors dumped trash on the site. legal dumping
continued from 1985 to 1993, and during this time the
City invested little effort into deterring illegal
dumping.' Over these eight years, the City issued
fifteen citations for illegal dumping, six of which were
for dumping at the Deepwood site. A 1985 memo to the
mayor and City Council stated that the citations for
illegal dumping at the site had been only a partial
deterrent and noted that control of illegal dumping had
been "loose."

In 1987, the City sued Van Sickle, V.V. Construction,
and another defendant, Samson Horrice, for operating
an illegal solid waste facility. As if to make matters
plain, in 1988 the site caught fire and burned for over
seven months. Finally, in December of 1989, the City
obtained a judgment against the defendants ordering
them to cease dumping at the site and to submit and
implement a plan to close the site. But nothing changed.

The Bureau of Solid Waste Management of the Texas
Department of Health inspected the site in April of
1991. The inspectors reported continued unauthorized
dumping and no efforts to clean up the site as required
by the 1989 judgment. According to the reports, the
City was informed of the failure to clean up the site.

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In November of 1991, the City moved for contempt
against Van Sickle and Horrice for failure to comply
with the judgment. No hearing was held because the
City failed to serve one of the defendants. It appears
that no further action was taken to enforce the
judgment and ensure closure of the site. With this

inaction, a decade of erratic enforcement staggered to a
halt.

First State Bank had a lien on the site. In 1991, the
Department of Housing and Neighborhood Services
informed the bank that the site had been inspected and
was in compliance with the City code. In 1992, First
State Bank acquired the site when Van Sickle defaulted
on a loan, and two years later it sold the site to Herman
Nethery.

On August 1, 1994, Nethery, the new owner, applied for
a construction permit from the City on behalf of
Herman Nethery Recycling. Nethery described the
proposed project as "fill & mine property.” A section of
the application set aside for "office use only" contains a
notation that the application was not ready because it
needed an accompanying affidavit stating that the
proposed use had been in continuous operation since
the original certificate of occupancy was issued. An
affidavit was submitted to the City on August 2, 1994,
stating, "VV Construction Company is in fact in
business and continuing business on said property since
1982 to present time." The affiant was V.V.
Construction Co. by Herman Nethery Recycling. The
same day, the City issued a permit to Nethery for
mining at the site. The accompanying contractor's
authorization form notes that the City had to inspect

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the property before Nethery could receive a certificate
of occupancy.

Meanwhile, the City created an Illegal Dumping Team
of six code enforcement inspectors to prevent illegal
dumping at Deepwood and other sites. The inspectors
issued numerous citations to people operating the site
beginning on August 22, 1994. Despite the reports and
citations, the City issued a certificate of occupancy to
Nethery on December 5, 1994, apparently without first
conducting the required inspection. The certificate
allowed the operator of the site to "dump rock, gravel,
sand, clean dirt free of vegetation and concrete,
generated from Demolition efforts associated with the
Urban Rehabilitation Standards Board Demolition
Program." The City continued to issue citations for
illegal dumping through November of 1996.

During the time that Nethery owned it, the site was
operated by Herman Lee Gibbons. Gibbons was also a
subcontractor on certain City contracts for demolition
and hauling debris, and he dumped waste at the site.
Other subcontractors on City demolition projects did
the same. Gibbons and other site operators used copies
of the certificate of occupancy issued by the City to
prove to their customers that the site was a legal |
landfill.

Kenn Hornbeck, the City employee who supervised
City demolition contracts, did not seek to terminate
those subcontracts assertedly because he had been
provided no proof that material from City demolition
projects was being dumped illegally. Yet Hornbeck
knew that Gibbons was operating an illegal dump at the
site, and he continued to forward contracts with

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Gibbons to the City Council for approval without
informing them of Gibbons' connection with the dump.
His department's attempts to monitor whether City
demolition debris was disposed of properly were limited
to checking receipts submitted for landfill disposal.

In April of 1995, the City sued Nethery for operating an
illegal solid waste facility. Despite a_ resulting
temporary injunction ordering Nethery to cease all
operations at the site, illegal dumping continued
through the end of 1996. Nethery was twice held in
contempt of court and, as a result, spent 49 days in jail
and was ordered to pay $ 2,500 in fines.

On June 22, 1995, in a further attempt to eliminate the
continued illegal dumping, Environmental and Health
Services code inspectors, Dallas police officers, and
Department of Public Safety officers arrested 29 people
and issued 152 code violation citations. The depth of
resistance to City regulation is evident in the fact that
the regulators requested police assistance because the
operators of the facility were armed.

The site again caught fire and burned from February
1997 through April 1997. In April, the City Council was
briefed on the site. At the briefing, several council
members made statements indicating surprise and
dismay that the Deepwood site had not been corrected.
On member noted that “had it been in another area of
the City, it would not have occurred."

On November 14, 1997, Nethery was permanently
enjoined from operating a dump at the site. In addition,
both Nethery and Gibbons were charged and convicted
of organized criminal activity in connection with their

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operation of the site. Both men were sentenced to
prison, although Nethery's conviction was reversed on
appeal.

II

On February 5, 1998, homeowners filed a civil action in
federal district court against the City and others
seeking injunctive relief under the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901,
injunctive relief and damages under 42 U.S.C. §§ 1981
and 1983, and damages under the FHA and its
accompanying regulations. Plaintiffs filed a similar case
on July 28, 1998 regarding a nearby dump After
consolidating the two cases, the district court
bifurcated the case for separate trials of the class claim
for injunctive relief under § 6901 and the non-class
claims for damages under the FHA and its regulations
and §§ 1981 and 1983.* After a bench trial, the district
judge granted plaintiffs' request for injunctive relief on
August 27, 1999, a judgment affirmed by this court.

As for damages, plaintiffs claimed violation of Equal
Protection rights under 42 U.S.C. §§ 1981 and 1983,
violation of the Fair Housing Act (FHA), 42 U.S.C. §§
1364(a),(b), and violation of federal housing regulations,
24 C.F.R. §§ 100.70(b),(d)(4). The district court granted
summary judgment to the City on the FHA and federal
housing regulations claims.® After a bench trial, the
court entered final judgment for the City on the
remaining claims under §§ 1981 and 1983." Plaintiffs
appeal the rejection of their claims under the FHA and
§§ 1981 and 1988, but not the rejection of their claims
under the federal regulations.

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III

We review de novo the district court's grant of
summary judgment to the City on the FHA claim.’

A =

Plaintiffs allege that the City violated § 3604(a) of the
FHA when it failed to prevent dumping at the site.
Section 3604(a) makes it unlawful "to refuse to sell or
rent after the making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or otherwise make
unavailable or deny, a dwelling to any person because
of race, color, religion, sex, familial status, or national
origin."®

The issue here is whether the failures and omissions by
the City violate the FHA by "otherwise making
unavailable or denying" a dwelling to any person
because of race.” In an analogous context, we have
stated that "although the ‘otherwise make available or
deny' phrase seems all-encompassing, its scope is not
limitless."° Plaintiffs attack the district court's
conclusion that, "to effect [sic] the availability of
housing within the meaning of the FHA, the
discriminatory actions must have a direct impact on
Plaintiffs' ability, as potential home buyers or
renters...to secure housing" and that "section 3604(a)
protects the right of individuals to live where they
choose, but it does not protect intangible interests in
already-owned property such as habitability or value."!!

Plaintiffs argue that the City violated § 3604(a) because
the dump makes it more difficult for them to sell their
houses and lowers the value of their houses. This claim

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enjoys factual support, but it is not a claim of
"unavailability" or "denial" of housing under a proper
reading of the FHA. The failure of the City to police the
Deepwood landfill may have harmed the housing
market, decreased home values, or adversely impacted
homeowners' "intangible interests, " but such results do
not make dwellings "unavailable" within the meaning of
the Act.

Sister circuits deciding cases turning on the reading of
"unavailable" are in accord. The Seventh Circuit, in
Southend Neighborhood Improvement Association v.
County of St. Claire, in addressing claims that the
county failed to clean up and maintain adjacent
properties, held that "plaintiffs' claim that the county's
discriminatory refusal to properly manage the
properties it owns damaged their interests in
neighboring properties” is "quite different from most of
the practices that courts have deemed illegal under §
3604(a)."” It then held that § 3604(a)

is designed to ensure that no one is denied the
right to live where they choose for
discriminatory reasons, but it does not protect
the intangible interests in the already-owned
property raised by the -plaintiffs' allegations.

Courts have applied this subsection to actions
having a direct impact on the ability of potential
homebuyers or renters to locate in a particular
area, and to indirectly related actions arising
from efforts to secure housing. On the other
hand, the plaintiffs here do not allege that they

. . 12a
have been hindered in an effort to acquire a
dwelling, but rather that the County's conduct

toward certain properties damaged their own
property.”

In Halprin v. Prarie Single Family Homes of

Dearborn Park Association, the Seventh Circuit

discussed §§ 3604(a) and (b):
[the] plaintiffs, however, are complaining not
about being prevented from acquiring property
but about being harassed by other property
owners. So it is difficult to see how they can have
been interfered with in the enjoyment of any
right conferred on them by section 3604.

Title VII protects the job holder as well as the
job applicant, so an employer who resorts to
harassment to force an employee to quit is
engaged in job discrimination within the meaning
of the Act. The Fair Housing Act contains no
hint either in its language or its legislative
history of a concern with anything but access to
housing. ... Since the focus [of Congress] was on
{minority's] exclusion, the problem of how they
were treated when they were included, that is,
when they were allowed to own or rent homes in
such areas, was not at the forefront of
congressional thinking. That problem - the
problem not of exclusion but of expulsion - would
become acute only when the law forced
unwanted associations that might provoke
efforts at harassment, and so it would tend not to

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arise until the Act was enacted and enforced.
There is nothing to suggest that Congress was
trying to solve that future problem, an endeavor
that would have required careful drafting in
order to make sure that quarrels between
neighbors did not become a routine basis for
federal litigation."

The Fourth Circuit, in Jersey Heights Neighborhood
Association v7. Glendening, similarly held that there
was no claim under § 3604(a) for the government's
decision to locate a highway near a _ neighborhood
because the claim of the-plaintiffs, as current residents,
"is too remotely related to the housing interests that
are protected by the Fair Housing Act." The Third
Circuit came to the same conclusion in Tenafly Erv
Association v. Borough of Tenafly, where it held that
the Orthodox Jewish plaintiffs, who challenged the
City's removal of religious objects from utility poles,
had not stated a § 3604(a) claim because they were
current homeowners and the removal only made their
residency less desirable, not "unavailable." Along the
same lines, the D.C. Circuit has held that “by their plain
terms [§ 3604(a),((1)] reach only discrimination that
adversely affects the availability of housing" rather
than the "habitability.""

These cases buttress .our conclusion that the simple
language of § 3604(a) does not apply to current
homeowners whose complaint is that the value or
"habitability" of their houses has decreased because
such a complaint is not about "availability." The
discriminatory practice alleged here against current
homeowners is quite unlike the discriminatory
practices in other cases - for example, “racial steering,"

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locking out owners of one race but not another,
mortgage redlining, insurance redlining, exclusionary
zoning - where the availability of housing for
prospective owners or tenants is implicated.'*

This is not to say that a current owner has no claim for
attempted and unsuccessful discrimination relating to
the initial sale or rental of the house, an issue we do not
decide.’ And it is not to say that a current owner or
renter evicted or constructively evicted from his house
does not have a claim.” We hold only that § 3604(a)
gives no right of action to current owners claiming that
the value or “habitability"’ of their property has
decreased due to discrimination in the delivery of
protective city services.

Plaintiffs argue that we found, in Hanson v. Veterans
Administration,” that actions falling short of complete
denial of either the right to buy or sell may yet be
covered by § 3604(a). Plaintiffs point to language in
Hanson said to suggest as much,” but it will not bear
that load. In Hanson, buyers and sellers alleged that
the Veterans Administration discriminated against
them by under-appraising houses because they were
located in a black neighborhood, appraisals determining
the size of the housing loans that the VA would
guarantee. We first concluded that at least one plaintiff
- a man who had been precluded from purchasing a
particular house by virtue of the under-appraising - had
standing to sue under § 3604(a). Consistent with our
holding that § 3604(a) is not available for current
owners who claim merely a decrease in value or
habitability, we assessed only the standing of a specific
buyer who had been precluded from acquiring his
chosen home. Even if one focuses on the fact that the

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court in Hanson allowed current homeowners to sue,
the heart of the case was about unavailability for
buyers - specific sales and purchases were being
blocked.

This reading of the case aligns it with the cases it cited.
In Hanson, we explained that, in United States v.
Mitchell,

the district court found that the defendant, which
owned an apartment complex, steered black
tenants to a particular section of the complex and
that this effectively denied the black tenants
access to equal housing opportunities. We
affirmed the conclusion of the district court that
these acts by the defendant made unavailable or
denied "a dwelling to any person because of
race." We held that "steering evidences an intent
to influence the choice of the renter on an
impermissible racial basis. The government need
only establish that race was a consideration and
played some role in the real estate transaction. *4

Hanson also cited Moore v. Townsend,” where the
Seventh Circuit dealt with defendants who had refused
to negotiate with plaintiffs because plaintiffs were black
and had thereby prevented the plaintiffs from acquiring
the home. The court affirmed the district court's award
of specific performance to the plaintiffs, noting that
"race is an impermissible consideration in a real estate
transaction, and it need only be established that race
played some part in the refusal to deal."*° This is
consistent with our reading of § 3604(a) because the
refusal to deal involved the acquisition, not value or
"habitability," of housing.

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Plaintiffs also argue that the dump has made housing
"unavailable" because the land underneath the dump is
now unavailable for housing for them or prospective
residents. The court in Jersey Heights, in rejecting the
same argument, held that the government, at most,
made "unavailable" a portion of land that could at some
future time become host to homes, a_ possibility
insufficient to sustain an FHA claim.27 We agree.
Although it is true that the statutory definition of
"dwelling" includes "vacant land which is offered for sale
or lease for the construction or location thereon" of
residential buildings,” there is no indication that the
Deepwood site, other than being partially zoned
residential, was offered for sale for the construction of
residential buildings; furthermore, there is _ no
guarantee that housing would have been constructed on
the land, even had the City stringently enforced its
dumping laws. In addition, there is no indication that
other land is not available for housing. And, even if
there were no other land available for housing, it is not
clear that such a fact would be sufficient for a § 3604(a)
claim,” an issue we need not decide. The
"unavailability" of the land underneath the dump does
not support the FHA claim.”

Because housing was not made "unavailable" to
plaintiffs, the district court's rejection of their § 3604(a)

claim was proper.

B

Plaintiffs also allege that the City violated § 3604(b) of
the FHA when it failed to prevent dumping at the site.
Section 3604(b) makes it unlawful "to discriminate
against any person in the terms, conditions, or

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privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection
therewith, because of race, color, religion, sex, familial
status, or national origin.™' They contend that the City
discriminated against them in the provision of a
service” - the enforcement of zoning laws - and they
attack the district court's conclusion that. § 3604(b)
"applies only to discrimination in the provision of
services that precludes the sale or rental of housing."™
Even assuming that the enforcement of zoning laws
alleged here is a “service,"* we hold that § 3604(b) is
inapplicable here because the service was not
"connected" to the sale or rental of a dwelling as the
statute requires.

The district court observed that "it is necessary to
decide whether the language 'in connection with' refers
to the ‘sale or rental of a dwelling’ or merely the
‘dwelling’ in general."* And as the district court
correctly concluded, it is the former. This reading is
grammatically superior and supported by the decisions
of many courts.” There is more.

Although the FHA is meant to have a broad reach,
unmooring the "services" language from the "sale or
rental" language pushes the FHA into a general anti-
discrimination pose, creating rights for any
discriminatory act which impacts property values - say,
for generally inadequate police protection in a certain
area. And, unlike general discrimination prohibitions
enforced by § 1983, the FHA targets private activity,
does not require a governmental policy or custom, and
does not require proof of both discriminatory impact
and intent. While sweeping widely, the FHA does so in
the housing field and remains a housing statute - the

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focus of congressional concern. That the corrosive bite
of racial discrimination may soak into all facets of black
lives cannot be gainsaid, but this statute targets only
housing. And the "services" subject to the alleged
discrimination must be "in connection" with the "sale or
rental of a dwelling ... ."°7

The claims here do not assert the requisite connection
between the alleged discrimination and the sale or
rental of a dwelling - that is, § 3604(b) does not aid
plaintiffs, whose complaint is that the value or
"habitability" of their houses has decreased.

This is not to say that § 3604(b) applies only if the
plaintiff was precluded from finding housing. For
example, § 3604(b) may encompass the claim of a
current owner or renter for attempted and unsuccessful
discrimination relating to the initial sale or rental or for
actual or constructive eviction. Indeed, in Woods Drake
v. Lundy, this court held that the latter situation could
sustain a § 3604(b) claim.** In Woods Drake, a landlord
refused to continue renting to a tenant because the
tenant entertained black guests. The tenant vacated
and sued the landlord under § 3604(b) for imposing a
"whites-only" condition on the terms of his lease, and
the court held that he had a claim.* This was akin to
constructive conviction and was a clear discriminatory
condition of "sale or rental of the dwelling."

We are persuaded that the alleged service here was not
"connected" to the sale or rental of a dwelling, as the
statute requires. Thus, the district court properly
rejected the § 3604(b) claim.

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Plaintiffs also appeal the district court's judgment, after
a bench trial, in favor of the City on the § 1981 and §
1983 claims. The district court concluded that there was
no proof of official action and, in the alternative, that
there was no proof of discriminatory intent.

The district court's findings of fact are subject to
clearly erroneous review.” "A finding is_ ‘clearly
erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed." We construe the evidence in the
light most favorable to upholding the district court's
finding.” Rule 52(a) does not require the district court
to "recite every piece of evidence supporting its
findings" or to “sort through the testimony of each of
[the] witnesses." The rule "exacts neither punctilious
detail nor slavish tracing of the claims issue by issue
and witness by witness... . It simply requires findings
that are explicit and detailed enough to enable us to
review them under the applicable standard."#

In much of their brief, plaintiffs assert their own
version of the facts. To that extent, their efforts are in
vain.» They also argue that the district court failed to
consider key evidence: evidence of disparate treatment
between black and white communities. That evidence
allegedly shows that the City mishandled _ illegal
dumping in black neighborhoods while more diligently
handling illegal dumping in white neighborhoods, and
that there were other illegal landfills in black
neighborhoods, but not in similar white neighborhoods,
that accepted City demolition debris. We have required
that the district court explain or at least acknowledge
such evidence in, for example, Voting Rights Act

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cases. The City argues that this heightened recitation
requirement is confined to such cases. Plaintiffs point to
other types of cases insisting that the district court
address contrary evidence.” We need not decide this
question because we conclude that, even if such a
requirement exists, the district court complied with it
by properly explaining its conclusion that there was no
official policy and implicitly discounting the contrary
evidence.

Municipal liability under both* § 1981 and § 1983
requires proof of three elements in addition to the
underlying claim of a violation of rights: "a policymaker;
an official policy; and a violation of constitutional rights
whose 'moving force’ is the policy or custom." The
district court found that the City Council and the Board
of Adjustment are policymakers and that the City
Manager and the City Attorney are not policymakers.”

An "official policy" is either a policy statement,
ordinance, regulation, etc., that has been officially
adopted by a policymaker, or a persistent, widespread
practice of officials or employees, which although not
authorized by officially adopted and promulgated
policy, is so common and well settled as to constitute a
custom that fairly represents the municipality's policy.”!
Plaintiffs allege the latter. "An act performed pursuant
to a ‘custom' that has not been formally approved by an
appropriate decisionmaker may fairly subject a
municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law."”
The policymaker must have either actual or
constructive knowledge of the alleged policy.” Plaintiffs
allege that there were two customs: 1) permitting
disposal of City demolition debris in predominantly

2la
black neighborhoods; and 2) failing to protect~ black
neighborhoods from illegal dumping.

Regarding disposal of debris from City projects, the
district court acknowledged that "the evidence supports
the inference that City demolition debris was dumped
at the Deepwood site" and that various City employees
"could have, through the exercise of proper diligence,
known about and stopped the dumping of City
demolition debris." However, the district court found
that even if there existed such a policy, the
policymakers had no actual or constructive knowledge
of it. The court was swayed by statements made at a
1997 City Council meeting, finding that they "belie any
prior knowledge of illegal dumping of City demolition
debris at Deepwood."” The court concluded that "there
is no evidence that either policymaker [the City Council
or the Board of Adjustment] had actual or constructive
knowledge of this practice [dumping City debris] at the
time it occurred."™

This finding is not clearly erroneous. The "missing"
evidence of disparate treatment of white and black
neighborhoods would not impact the finding that the
policymakers here had no actual or constructive
knowledge that City debris was being dumped illegally
at Deepwood.

As for failing to protect black neighborhoods from
dumping, the district court rehashed attempts by the
City to bring Deepwood back in line, including evidence
of citations issued for illegal dumping, suits against
Deepwood's owner and operator, a judgment requiring
cessation of illegal dumping and cleanup, and the
creation of an Illegal Dumping Team.” While the

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district court observed that "the City's efforts to stop
the illegal dumping at Deepwood were inconsistent,
inadequate, and largely ineffective for years," it
concluded that the City's actions amounted to
"negligence,"”’ not a custom. That conclusion is sound in
law and fact.

Plaintiffs assert that the district court should be
reversed for its failure to reference the evidence of
disparate treatment between black and_ white
neighborhoods - that is, the evidence of other black
neighborhoods suffering the same plight and of white
neighborhoods that were better-treated. Such a
requirement of "punctilious detail" goes nowhere in
this case. The district court's recitation of a litany of
evidence, and its conclusion that the City acted
negligently, came with full awareness of this "missing
evidence." Indeed, the court cited it in its denial of the
defendants’ motion for summary judgment, implicitly
discounting its value at trial.

IV

The judgments of the district court in favor of the City
are AFFIRMED.

Footnotes

nl The district court noted that a coordinated effort by
the Street and Sanitation Service Department, the
State Health Department, the Department of Housing
and Neighborhood Services, and the Public Works
Department was begun in 1985 to clean up the site. This
was apparently ineffective.

es

23a
n2 It appears that the plaintiffs did not seek damages

for this second dump, the "South Loop 12 Dump," after
the injunction was issued for both dumps.

n3 It appears that the bifurcation order ignored the
claims for injunctive relief under §§ 1981 and 1983, but
they became moot after the court granted the
injunction under § 6901.

n4 Cox v. City of Dallas, 256 F:3d 281, 285 (5th Cir.
2001).

nd Cox v. City of Dallas, 2004 U.S. Dist. LEXIS 2729,
Civ. 3:98-CV-1763-BH, 2004 WL 370242, at *5-*9 (N.D.
Tex. Feb. 24, 2004) (unpublished).

n6 Cox v. City of Dallas, 2004 U.S. Dist. LEXIS 18968,
No. 3:98-CV-1763-BH, 2004 WL 2108253, at *16 (N.D.
Tex. Sept. 22, 2004) (unpublished).

n7 Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005).

n8 42 U.S.C. § 3604(a).

n9 Plaintiffs do not contend that any of the other
clauses of § 3604(a) apply.

nl0 Meadowbriar Home for Children, Inc. v. Gunn, 81
F.3d 521, 531 (5th Cir. 1996) (construing an analogous
clause of the FDA, § 3604(f)).

nll Cox, 2004 U.S. Dist. LEXIS 2729 at *19, 2004 WL
370242, at *6 (internal citations and quotations
omitted).

24a
nl2 743 F.2d 1207, 1210 (7th Cir. 1984).

n13 Id.

nl4 388 F.3d 327, 329 (7th Cir. 2004) (emphasis in
original).

n15 174 F.3d 180, 192 (4th Cir. 1999).
n16 309 F.3d 144, 157 n.13 (3d Cir. 2002).

nl7 Clifton Terrace Assocs., Ltd. v. United Techs.
Corp., 289 U.S. App. D.C. 121, 929 F.2d 714, 719 (D.C.
Cir. 1991).

nl8 Evans v. Tubbe, 657 F.2d 661, 663 n.3 (5th Cir.
1981) (erecting gate across the only access road to
properties and giving gate keys only to white owners
made properties "unavailable" under § 3604(a)); United
States v. Mitchell, 580 F.2d 789, 790-91 (5th Cir. 1978)
(steering black to one section of large housing complex
and indicating that no other vacancies were available
violated § 3604(a)); Southend Neighborhood, 743 F.2d at
1209 (emphasis added), citing Halet v. Wend Inv. Co.,
672 F.2d 1305 (9th Cir. 1982) (discriminatory rental
decisions); United States v. City of Parma, 661 F.2d 562
(6th Cir. 1981) (rejection of public and low-income
housing and adoption of restrictive land use
ordinances); Marable v. H. Walker & Assocs., 644 F.2d
390 (5th Cir. 1981), appeal after remand, 704 F.2d 1219
(11th Cir. 1983) (unequal application of rental criteria
by landlord); United States v. Mitchell, 580 F.2d 789 —
(5th Cir. 1978) (racial steering); United States v. City of
Black Jack, 508 F.2d 1179 (8th Cir. 1974) (adoption of
restrictive zoning law); NAACP v. Am. Family Mut.

25a

Ins. Co., 978 F.2d 287, 297-98 (7th Cir. 1992). The non-
controlling cases cited by amici do not contradict this:
they either do not deal directly with § 3604(a), see
Neudecker v. Boisclair Corp., 351 F.3d 361, 364-65 (8th
Cir. 2003); DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th
Cir. 1996); Honce v. Vigil, 1 F.8d 1085, 1088-90 (10th
Cir. 1993); Byrd v. Brandeburg, 922 F. Supp. 60, 62-66
(N.D. Ohio 1996), do not address the "availability" issue
head-on, see United States v. L&H Land Corp., Inc.,
407 F.. Supp. 576, 579-80 (S.D. Fla. 1976); Lane v. Cole,
88 F. Supp. 2d 402, 405-06 (E.D. Pa. 2000), or deal with
situations where current owners are suing because
houses have been made unavailable to others, see supra
note 11; Gladstone Realtors v. Vill. of Bellwood, 441
USS. 91, 110-11, 99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979);
United States v. Am. Inst. of Real Estate Appraisers of
Nat. Ass'n of Realtors, 442 F. Supp. 1072, 1079 (N.D.
Ill. 1977). It is true that insurance redlining (although
generally not mortgage redlining) may injure current
owners in their capacity as current owners, in the
unusual circumstance that they apply for insurance ~
after purchasing a house, but the evil there is still
access to homes for new owners/tenants - that is, the
practice of insurance redlining serves to reduce access
to houses to future owners, as it “indirectly relates [to]
actions arising from efforts to secure housing.” See
Southend Neighborhood, 743 F.2d at 1210. Thus, it is
properly within the ambit of § 3604(a). See, e.g.,
NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287,
297-98 (7th Cir. 1992).

nl9 See, e.g., Heignts v. Cmty. Cong. v. Hilltop Realty,
Inc., 629 F. Supp. 1282, 1249 (N.D. Ohio 1983); Coty.
Hous. Trust v. Dep't of Consumer and Regulatory
Affairs, 257 F. Supp. 2d 208 (D.D.C. 2003); but see

26a
Halprin, 388 F.3d at 329 (denying § 3604(a) claim where
plaintiffs "are complaining not about being prevented
from acquiring property but about being harassed by
other property owners" (emphasis added)).

n20 See Jersey Height, 174 F.3d at 192 (noting that
plaintiffs had not alleged "that anyone has for
discriminatory reasons been evicted from his home or
denied the right to purchase or rent housing" (emphasis
added)); Clifton Terrace Assocs., 929 F.2d at 719-20
(noting that "the denial of certain essential services
relating to a dwelling, such as mortgage financing,
sewer hookups, zoning approval, or basic utilities,
might result in the denial of housing" per § 3604(a)); but
see Halprin, 388 F.3d at 329 (holding that attempted
constructive eviction by orchestrated harassment
campaign of neighbors and housing association was not
covered by § 3604(a), and noting that plaintiffs "are
complaining not about being prevented from acquiring
property but about being harassed by other property
owners" (emphasis added)).

n21 We realize that a § 3604(a) claim for "constructive
eviction" would be a type of "habitability" claim - that
the "habitability" has so decreased that continued
residency is not objectively reasonable. We reject only
those "habitability" claims that fall short of constructive
eviction, leaving the question of constructive eviction
for another day. See supra note 21 (citing Clifton
Terrace Assocs., 929 F.2d at 719-20 (describing the
denial of certain "essential services" - a type of
constructive eviction - as possibly resulting in a §
3604(a) claim)).

n22 800 F.2d 1381 (5th Cir. 1986).

27a

n23 Id. at 1886 ("Courts have consistently given an
expansive interpretation to the Fair Housing Act; to
state a claim under the Act, it is enough to show that
race was a consideration and played some role in a real
estate transaction");

We conclude that section 804(a) [§ 3604(a)| does
address the claim asserted by appellants.
Discriminatory appraisal may effectively prevent
blacks from purchasing or selling a home for its
fair market value. This interferes with the
exercise of rights granted by the Fair Housing
Act.

Id.

n24 Hanson, 800-F.2d at 1386 (quoting United States v.
Mitchell, 580 F.2d 789, 791 (5th Cir. 1978) (citations
omitted)). \

n25 525 F.2d 482 (7th Cir. 1975).

n26 /d. at 485 (emphasis added). Although claims were
brought under both § 3604(a) and § 1982, the court
apparently addressed only the latter; nonetheless, the
case is consistent with our holding.

n27 Jersey Heights, 174 F.3d at 192-98 (plaintiffs
claimed that the highway "will serve as the northern
boundary to their community, closing off expansion in
that direction and locking African Americans into what
is allegedly the only neighborhood open to them").

n28 42 U.S.C. § 3602(b).

28a
n29 See Jersey Heights, 174 F.3d at 192-93 (holding that

§ 3604(a) was not violated even where there was
allegedly no land for expansion)

n30 Finally, plaintiffs cite 24 C.F.R. § 100.70(a),(d),
which interpret part of § 3604(a), for the proposition
that the § 3604(a) “is violated by actions that impede,
restrict[,] discourage, obstruct, or restrict persons'
attempt to sel/ or buy housing or treat those persons'
attempt to sell or buy housing differently because of
race of color" (emphasis added). Again, however,
plaintiffs have incorrectly shifted the focus (here, the
focus of the regulations) from preventing restrictions
on the buyers' choice to preventing restrictions on the
buyers' and sellers' choice. Section 100.70(a) states that
discrimination is unlawful "in connection with seeking,
negotiating for, buying or renting a dwelling," not in
connection with selling a dwelling. And § 100.70(c)
states specifically that the acts prohibited under
subsection (a) "are generally referred to as unlawful
steering practices;" our case does not involve unlawful
steering. Plaintiffs and amici also argue that §
100.70(d)(4), which states that refusing to provide
municipal services or insurance based on race is
unlawful, shows that plaintiffs have a § 3604(a) claim.
However, the preface to § 100.70(d)(4) states that
"prohibited activities relating to dwellings under
paragraph (b) of this section include, but are not limited
to... ." Section 100.70(b) states that it is unlawful to
discriminate by "engaging in any conduct relating to the
provision of housing or of services and facilities in
connection therewith that otherwise makes unavailable
or denies dwellings to person." This language, which
parrots the "otherwise make unavailable or deny"
language in § 3604(a), prohibits conduct only insofar as

29a

the conduct "denies" housing or makes it “unavailable" -
it does not (and cannot) expand the reach of the
underlying statute. This conclusion is buttressed by the
fact that the other prohibited activities listed in §
100.70(d)(1)-(3) relate to the sale or rental of a dwelling,
not its continuous use, and the title of § 100.70 is "Other
prohibited sale and rental conduct." And, as we have
shown, the alleged actions here have not “denied" or
made "unavailable" housing to plaintiffs.

n31 42 U.S.C. § 3604(b).

n32 The only other language in § 3604(b) that could
possibly apply is that regarding the "privileges of sale."
It is not clear if plaintiffs argue that they were denied
such privileges (they never use the word "privileges"
except in quoting the statute), and the district court
analyzed only the "services" claim. Amici, however,
argue the issue. Generously characterizing plaintiffs’
argument to include this contention, we find it
unavailing for the same reason that the "services" claim
is unavailing: the privileges here are not connected to
the "sale or rental of a dwelling.” Amici argue that
"privileges" must include the privileges of continued
occupancy and quiet enjoyment, and they cite Halprin,
388 F.3d at 329, which they argue contains language
supporting this position but rejects "inexplicably" the §
3604(b) claim. But amici never explain why "privileges"
does not pertain only to the "sale or rental of a
dwelling;" their argument, relying solely on the
meaning of the word "privileges," is unconvincing. And
their reliance on Ha/prin is misplaced. The court in that
case conceded only that, "as a purely semantic matter
the statutory language might be stretched far enough
to reach a case of ‘constructive eviction’ .. ." (emphasis

Oe

30a
added). As we noted in Part A, supra, and as we note in
Part B, infra, we do not foreclose the possibility of a §
3604(a) or (b) claim as the result of eviction or
constructive eviction, because such actions may make
housing "unavailable" or deny "privileges of sale" or
"services."

n33 Cox, 2005 U.S. Dist. LEXIS 2729, 2004 WL 370242,
at *8.

n34 There is some authority that it is such a service. See
Southend Neighborhood, 743 F.2d at 1210 (holding that
S$ 3604(b) “applies to services generally provided by
governmental units such as police and fire protection or
garbage protection"); Jersey Heights, 174 F.3d at 193
(holding that § 3604(b) applies to "garbage collection
and other services of the kind usually provided by
municipalities" (quoting Mackey v. Nationwide Ins.
Cos., 724 F.2d 419, 424 (4th Cir. 1984)). However, there
is also authority suggesting that it is not such a service.
See Clifton Terrace Assocs., 929 F.2d at 720 (suggesting
that § 3604(b) may not apply to municipal services at
all, and holding that § 3604(b) does not apply to the
provision of elevator repair services); Southend
Neighborhood, 743 F.2d at 1210 (holding that § 3604(b)
does not apply to the decision where to location a
highway); Jersey Heights, 174 F.3d at 193 (holding that
§ 3604(b) does not apply to a county's failure to clean
up, maintain, and make safe property adjacent to a
residential neighborhood). In any event, we do not
decide the issue.

n35 Cox, 2004 U.S. Dist. LEXIS 2729 at *20, 2004 WL
370242, at *7 (quoting § 3604(b)).

dla

n36 See, e.g, Clifton Terrace Assocs., 929 F.2d at 720;
Halprin v. Prairie Single Family Homes, 208 F. Supp.
2d 896, 901 (N.D. Ill. 2002); Laramore v. Ill. Sports
Facilities Auth., 722 F. Supp. 448, 452 (N.D. Ill. 2002).
To the extent that some courts hold that general police
and fire protection are within the scope of § 3604(b), one
may be able to read their holdings as to the contrary;
however, one can still conceivably connect police and
fire protection to the "sale or rental of a dwelling"
(especially rental). See Southend Neighborhood, 743
F.2d at 1210 (holding that § 3604(b) "applies to services
generally provided by governmental units such as
police and fire protection or garbage protection");
Jersey Heights, 174 F.3d at 193 (holding that § 3604(b)
applies to "garbage collection and other services of the
kind usually provided by municipalities" (quoting
Mackey v. Nationwide Ins. Cos., 724 F.2d 419, 424 (4th
Cir. 1984)); Lopez v. City of Dallas, 2004 U.S. Dist.
LEXIS 18220, No. 3:03-CV-2223-M, 2004 WL 2026804,,
at *7 (N.D. Tex. Sept. 9, 2004) (unpublished).

n37 As with 24 C.F.R. § 100.70, see supra note 29,
plaintiffs and amici argue that § 100.65(b), which
implements § 3604(b), shows that no such connection is
required. However, the preface to § 100.65(b) states
that "prohibited actions under this section include, but
are not limited to... ." The section referenced (section
a)) states that it is unlawful to discriminate by
"imposing different terms, conditions, or privileges
relating to the sale or rental of a dwelling or to deny or
limit services of facilities in connection with the sale or
rental of a dwelling." This language, which parrots the
language in § 3604(b), prohibits conduct only insofar as
the conduct "relates to" or is "in connection with" the
sale or rental of a dwelling." And the alleged conduct

32a

here does not "relate to" and is not “in connection with"
any sale or rental. We recognize that, while some of the
actions prohibited by the regulations - using different
leases or contracts for sale and failing to process an
offer or application - clearly are connected to the "sale
or rental of a dwelling,” others appear not to be - for
instance, failing or delaying maintenance or repairs.
But we decline to take such a cramped view of the
latter type of actions - even they can be "connected to"
the sale or rental of a dwelling, as when, for instance,
such actions are aimed at evicting or constructively
evicting a tenant. See infra note 38 and accompanying
text.

n38 667 F.2d 1198 (5th Cir. 1982).
n39 667 F.2d at 1201-02.

n40 FED. R. CIV. P. 52(a) ("In all actions tried upon the
facts without a jury . .. the court shall find the facts
specially and state separately its conclusions of law
thereon .... Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility
of the witnesses."); Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518
(1985).

n41 Anderson, 470 U.S. at 573 (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct.
525, 92 L. Ed. 746 (1948)) (internal quotation marks
omitted).

33a
n42 Travelhost, Inc. v. Blandford, 68 F.3d 958, 965 (Sth
Cir. 1996).

n43 Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir.
1993). :

n44 /d. (internal quotation marks and citations omitted)
(brackets in original).

n45 Schlesinger, 2 F.3d at 139 (footnote omitted):

In essence, the appellants list their own version
of the facts and then complain that the district
court violated Rule 52 by ignoring these "facts."
The district court did not ignore facts. It simply
found facts contrary to the appellants' liking.

n46 See, e.g., Westwego Citizens for Better Gov't v. City
of Westwego, 872 F.2d 1201, 1203 (5th Cir. 1989) (stating
that voting rights cases are unique and require special
attention to the record); Houston v. Lafayette County,
Miss., 56 F.3d 606, 612 (5th Cir. 1995) (finding clear
error in voting rights case and remanding for more
extensive explanation of why certain statistics were
rejected); Teague v. Attala County, 17 F.3d 796, 798
(5th Cir. 1994) ("This court is unable to discharge our
appellate function in voting rights cases without more
guidance by the trial court concerning its credibility
choices on the welter of evidence before it.")

n47 See, e.g., Lopez v. Current Director, 807 F.2d 430,
434 (5th Cir. 1987) (noting in discriminatory discharge
and treatment case that "only if the district court
specifies which evidence it adopted and which evidence
it rejected in making its finding can we properly and

34a

effectively apply the clearly erroneous standard");
Ratliff v. Governor's Highway Safety Program, 791
F.2d 394, 401 (5th Cir. 1986) (noting in a national origin
employment discrimination case that district court
"must at least refer to the evidence tending to prove
and disprove the merits of the proffered explanation
and state why the court reached the conclusion that the
explanation has not been discredited. We have,
therefore, routinely reversed a trial court that has
failed to set forth sufficient findings of fact and
conclusions of law in actions under Title VII."); Collins
v. Baptist Memorial Geriatric Ctr., 9387 F.2d 190, 196-97
(5th Cir. 1991) (remanding quid pro quo claim for
further consideration because that claim "was not
separately focused upon" by district court).

n48 Evans v. City of Houston, 246 F.3d 344, 358 (5th
Cir. 2001) (extending the Monwnell official action
requirement to § 1981 claims).

n49 Piotrowski v. City of Houston, 237 F.3d 567, 578
(5th Cir. 2001) (citing Monell v. Dep't of Social Servs.,
436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978)).

nd50 Cox, 2004 U.S. Dist. LEXIS 18968, 2004 WL
2108253, at *7-*9. The parties agree that the City
Council is a policymaker, but the City argues that the
Board of Adjustment is not. We assume, but do not
decide, that the Board of Adjustment is a policymaker.

nd1 See Cozzo v. Tangipahoa Parish Council, 279 F.3d
273, 289 (5th Cir. 2002).

nd52 Board of County Comm'rs of Bryan County v.

35a

Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1387 L. Ed. 2d
626 (1997).

n53 See Piotrowski, 237 F.3d at 579. ("Actual or
constructive knowledge of a custom must be
attributable to the governing body of the municipality
or to an official to whom that body has delegated policy-
making authority."); Webster v. City of Houston, 735
F.2d 838, 842 (5th Cir. 1984).

n54 Cox, 2004 U.S. Dist. LEXIS 18968 at *30, 2004 WL
2108253, at *10.

nd55 Id.
n56 Id. -

nd57 Cox, 2004 U.S. Dist. LEXIS 18968, 2004 WL
2108253, at *10-*12.

nd58 2004 U.S. Dist. LEXIS 18968 at *34, [WL] at *11.

n59 In discussing the general basis for its rejection of
the § 1983 claim as part of its summary rejection of the
§ 1981 claim, the court stated: "Plaintiffs failed to
establish by a preponderance of the evidence that the
City's actions were more than negligence and were the
result of an intent to discriminate against them on the
basis of race, rather than gross negligence."). 2004 U.S.
Dist. LEXIS 18968 at *47, [WL] at *16.

n60 Schlesinger, 2 F.3d at 139.

36a
Civil Action No. 3:98-C V-1763-BH

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS,
DALLAS DIVISION

HAROLD COX, et al,
Plaintiffs,

V.

THE CITY OF DALLAS,
Defendant.

September 21, 2004, Decided
September 22, 2004, Filed

COUNSEL: For Harold Cox, Plaintiff: Laura Beth
Beshara, Law Office of Michael M Daniel, Dallas, TX.
Michael M Daniel, Law Office of Michael M Daniel,
Dallas, TX.

For Shirley Davidson, Plaintiff: Laura Beth Beshara,
Law Office of Michael M Daniel, Dallas, TX.

For Robert Stubblefield, Plaintiff: Laura Beth Beshara,
Law Office of Michael M Daniel, Dallas, TX.

For Cynthia Herring, Plaintiff: Laura Beth Beshara,
Law Office of Michael M Daniel, Dallas, TX.

For Eloise Edwards, Plaintiff: Laura Beth Beshara,
Law Office of Michael M Daniel, Dallas, TX.

ola
For Betty Curley, Plaintiff: Laura Beth Beshara, Law
Office of Michael M Daniel, Dallas, TX. -

For Leo Easter, Plaintiff: Laura Beth Beshara, Law
Office of Michael M Daniel, Dallas, TX.

For Dallas TX City of, Defendant: Albert M Bronson,
Attorney General of Texas, Environmental Protection
Division, Austin, TX. Janice Smith Moss, Dallas City
Attorney's Office, Dallas, TX. Thomas P Perkins, Jr,
Dallas City Attorney's Office, Dallas, TX. Caroline
Jordan, Dallas City Attorney's Office -- City Hall,
Dallas, TX. John L Anderson, Dallas City Attorney's
Office, Dallas, TX.

For Dan Pearson, in his capacity as Executive Director
of the Texas Natural Resources Conservation
Commision, Defendant: Albert M Bronson, Attorney
General of Texas, Environmental Protection Division,
Austin, TX.

Terry Van Sickle, Defendant.
Herman Nethery, Defendant.

JUDGES: IRMA CARRILLO RAMIREZ, UNITED
STATES MAGISTRATE JUDGE.

OPINIONBY: IRMA CARRILLO RAMIREZ

OPINION:

FINDINGS OF FACT AND CONCLUSIONS OF
LAW

38a

Plaintiffs sued the City of Dallas ("City"), alleging
violations of 42 U.S.C. § 1983 and 42 U.S.C. § 1981. On
March 1-3, 2004, the Court conducted a bench trial of
this case. After consideration of the testimony and
evidence presented during the trial, the parties’ pre-
trial and post-trial proposed findings of fact and
conclusions of law, the _ post-trial briefing, the
arguments of counsel, and the relevant authorities, the
Court finds and concludes as set forth below.

I. BACKGROUND-

On February 5, 1998, Plaintiffs filed civil action
number 3:98-CV-0291 against the City and others,
alleging illegal dumping and race discrimination. On
July 28,1998, Plaintiffs filed a second suit, civil action
number 3:98-CV-1763, against the City and others for
alleged illegal dumping and race discrimination. The
district court entered an order consolidating the two
cases under 3:98-EV-0291 on August 17, 1998. On
December 17, 1998, the district court bifurcated the
claims in the consolidated cases. The district court's
order specified that civil action 3:98-CV-0291 would be
a class action suit for injunctive relief brought under 42
J.S.C. § 6901 for illegal dumping and would be tried
first. The order further specified that after resolution of
the illegal dumping claims, Plaintiffs’ claims of race
discrimination would be tried in civil action 3:98-CV-
1763, which was not a class action suit. After a bench
trial in 3:98-CV-0291, the district court entered a final
judgment granting Plaintiffs’ request for injunctive
relief on August 27, 1999. On September 7, 1999, civil
action 3:98-CV-0291 was closed, and civil action 3:98-
CV-1 763 was reopened. Civil action 3:98-CV-1763 was
transferred to this Court on March 11, 2003, for the

39a
conduct of all further proceedings in Plaintiffs’ suit
against the City for race discrimination.

In Plaintiffs' Revised Fourth Amended Complaint,
filed October 2, 2003, Plaintiffs alleged violations of the
Fourteenth Amendment to the U.S. Constitution, 42
U.S.C. § 1981, 42 U.S.C. § 1983, the Fair Housing Act,
42 U.S.C. § 3601 et seqg., and 24 C.F.R. § 100.70(b),
(d)(4). In particular, Plaintiffs asserted that the City
failed to stop the illegal dumping at the Deepwood site
with the intent to discriminate against Plaintiffs
because of their race. (Compl. at 13.) On February 24,
2004, this Court awarded summary judgment to the
City on Plaintiffs’ claims brought under the Fair
Housing Act, 42 U.S.C. § 3604(a) and (b), and 42 U.S.C.
§ 1983 for violations of 24 C.F.R. § 100.70(b), (d)(4). A
bench trial on Plaintiffs' remaining claims of violations
of 42 U.S.C. § 1981 and 42 U.S.C. § 1983 was held on
March 1-3, 2004.

Il. FINDINGS OF FACT'

1. Plaintiffs are African-American homeowners living in
a residential neighborhood adjacent to a landfill located
at 523 Deepwood Street, Dallas, Texas ("Deepwood
site"). (Am. JPO at 4.)

2. The City is a municipal government organized and
operating under the laws of the state of Texas. (Am.

JPO at 4.)

3. The Deepwood neighborhood was annexed by the
City on August 6, 1956, and was zoned R-7.5
(Residential). (Am. JPO at 8.)

40a

4. On March 20, 1968, the City granted permission to
locate an office building at the Deepwood site for a
nonconforming sand and gravel mining operation. (Am.
JPO at 8.)

5. A certificate of occupancy was issued on August 16,
1963, for a gravel pit at the Deepwood site on the basis
that the use was nonconforming. (Am. JPO at 8.)

6. At that time, the ethnic background of the residents
of the Deepwood neighborhood was predominately
white, non-Hispanic. (Am. JPQ at 8.)

7. A portion of the Deepwood site was zoned Industrial-
2, and Specific Use Permit ("SUP") 182 was issued for a
mining operation adjacent to the _ residential
neighborhood, on March 30, 1965. (Am. JPO at 5, 8.) To
date, SUP 182 has not been revoked. (Am. JPO at 7.)

8. Between the 1970 and 1980 U.S. Census, the ethnic
background of the residents of the Deepwood
neighborhood changed from predominately white, non-
Hispanic to predominately African-American. (Am.
JPO at 8.)

9. Plaintiffs purchased homes in the Deepwood
neighborhood between 1970 and 1978. (Am. JPO at 8.)

10. As early as 1976, there was open dumping of solid
waste at the Deepwood site. See Cox v. City of Dallas,
256 F.3d 281, 285 (5th Cir. 2001). At that time, officials
from the City and the state visited the site and called
for continuing surveillance. /d.

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11. From 1982 through 1992, the Deepwood site was
owned by Terry Van Sickle, owner of V.V.
Construction Co. (Am, JPO at 5-6.)

12. On March 16, 1982, V.V. Construction Co. submitted
a permit application for removal of sand and gravel
from the Deepwood site. (Am. JPO at 5.) The
application stated that the old pits were to be filled
with solid waste, meaning “all putrescible and non
putrescible discarded materials or unwanted rock, dirt,
metal, sand gravel wood etc." (Am. JPO at 5.)

13. On April 6, 1982, V.V. Construction Co. was issued a
certificate of occupancy for mining sand and gravel at
the Deepwood site based on the March 16, 1982
application. (Am. JPO at 5.)

14. In a letter dated April 16, 1982, the City granted
Van Sickle permission to fill the mined area at the
Deepwood site. (Am. JPO at 5.)

15. On November 22, 1982, one of the plaintiffs in this
action filed a complaint with the City, alleging massive
illegal dumping at the Deepwood site. (P.'s Exh. 46.)

16. The City's response to the complaint indicates that a
citation to municipal court had been issued to the owner
of the property on November 11, 1982, for conducting a
sanitary landfill operation in R-7.5 zoning. (P.'s Exh.
47.) Weekly reinspections revealed no additional illegal
dumping as of December 9, 1982. (P.'s Exh. 47.)

17. In the first four months of 1983, residents of the
Deepwood: neighborhood appeared five times at City

42a
Council meetings to express concern about the
Deepwood site. (P.'s Exh. 48-52.)

18. In response to residents’ concerns raised at City
Council meetings about truck traffic, noise, air
pollution, and illegal dumping, the Assistant City
Manager issued a memorandum to the Mayor and City
Council dated February 4, 1983. (D.'s Exh. 92.) The
memorandum indicated that the owner of the
Deepwood site was fined for operating a sanitary
landfill on the site, and that illegal dumping at the site
had ceased. /d. The author stated his belief that once
truck traffic to the site was diverted away from
residential streets, most of the citizens' concerns would
be resolved. /d.

19. At the instruction of the City Council, tests were
conducted at the Deepwood site on February 22, 1983,
to determine the quality of the fill materials. (D.'s Exh.
111.) The study found that the site was "being filled
with soil and rock with approximately 20 percent other
materials such as brush, trees, and demolition rubble
being allowed." /d. The soil was not found to be
contaminated. [d.

20. A May 18, 1983 memorandum from a City employee
to a City Councilperson reported that no contaminants
were found in the soil or water table at the Deepwood
site and that continued monitoring of the site was to
take place every four to six months for five years. (D.'s
Exh. 51.)

21. On April 27, 1983, the City Council passed a
resolution requesting that the Board of Adjustment
initiate a public hearing to consider terminating the

43a
nonconforming use of the Deepwood site. The
resolution referenced the operation of a "stone, sand, or
gravel mining use" on the property but did not mention

the fact that the site had been used as an illegal dump.
(P.'s Exh. 97.)

22. Notice of the hearing was issued by the Board of
Adjustment and the hearing was held on July 26, 1983.
(P.'s Exh. 99, 101.)

23. The morning of the hearing, the members of the
Board of Adjustment inspected the Deepwood site. (P.'s
Exh. 108 at 8.)

24. The Board of Adjustment believed the basis for
considering terminating the nonconforming use at the
Deepwood site was the noise, dust, and _ traffic
associated with the mining operation. (P.'s Exh. 108 at
1.) Two letters from residents in favor of terminating
the nonconforming use at the site were sent to the
Board of Adjustment. (P.'s Exh. 100.) At the hearing,
Mr. Van Sickle testified that he had removed a
considerable amount of debris from the site, and that he
planned to mine gravel for two more years and fill the
hole for another three years. (P.'s Exh. 103 at 5.) Two
other individuals testified in favor of continuing the
nonconforming use. (P.'s Exh. 101.) At the conclusion of
the hearing, the Board of Adjustment voted to take no
action terminating the nonconforming use and to call
another hearing in nine months. (P.'s Exh. 101.)

25. The issue of terminating the nonconforming use at
the Deepwood site was never again considered by the
Board of Adjustment.

44a

26. The City Council did not request further action by
the Board of Adjustment on the issue of the
nonconforming use at the Deepwood site.

27. In a letter dated October 16, 1985, the Texas
Department of Health complained to the City about
solid waste permits being issued by the Dallas Urban
Housing Authority in violation of the Texas Solid
Waste Disposal Act. (P.'s Exh. 126.) The letter noted
that if permits were issued for materials excluded by
the Act, the City was responsible for ensuring that no
prohibited materials were deposited. /d.

28. A November 7, 1985 memorandum to the Mayor and

‘City Council stated that the issuance of citations for
illegal dumping in the area surrounding the Deepwood
site had proven only a partial deterrent to the problem
of illegal dumping. (P.'s Exh. 127.) The memorandum
noted that control of illegal dumping at the Deepwood
site had been "loose." A coordinated effort by the Street
and Sanitation Service Department, the State Health
Department, the Department of Housing and
Neighborhood Services, and the Public Works
Department was begun to clean up the illegal dumps.
Id.

29. From 1985 through 1993, the City invested minimal
effort into deterring illegal dumping. Of the three
citations issued by the City for illegal dumping in 1985,
one was for dumping at the Deepwood site. (P.'s Exh.
128.) Two citations for illegal dumping were issued in
1986, both for dumping at the Deepwood site. /d. Five
citations for illegal dumping were issued in 1987, three
of which were for dumping at the Deepwood site. /d.
Two citations were issued in 1988, neither of which was

45a
for illegal dumping at the Deepwood site. Jd. No
citations were issued in 1989 or 1990. Jd. Two citations
for illegal dumping were issued in 1991, neither, for
Deepwood. Jd. No citations for illegal dumping were

issued in 1992, and only one citation was issued in 1993.
Id.

30. Illegal dumping continued at the Deepwood site,
and in 1987, the City sued Van Sickle, V & V
Construction Co., and Samson Horrice for operating an
illegal solid waste facility or municipal solid waste site.
(Am. JPO at 5.)

31. In 1988, the Deepwood site caught fire and burned
for over seven months. Cox v. City of Dallas, 1999 U.S.
Dist. LEXIS 22748, 1999 WL 33756552, *4 (N.D. Tex.
1999).

32. On December 29, 1989, the City obtained a
judgment against Van Sickle and Horrice for operating
an illegal municipal solid waste disposal site. (Am. JPO
at 6.) The judgment ordered cessation of disposal of
municipal solid waste at the Deepwood site and
submission and implementation of a plan to close the
site. Id.

33. Resident complaints about illegal dumping at the
Deepwood site were received in 1990, 1991,1993, and
1994, by the agency charged with code enforcement.
(P.'s Exh. 54, 55, 56, 57.)

34. On November 21, 1991, the City moved for contempt
against Van Sickle and Horrice for failure to comply
with the terms of the judgment. (P.'s Exh. 136.)

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35. No hearing was held on the contempt charges and
no further action was taken to enforce the judgment.
(P.'s Exh, 136, 138.)

36. On October 7, 1991, the lienholder on Van Sickle's
note on the Deepwood site, First State Bank, was told
by the Department of Housing and Neighborhood
Services that the Deepwood site had been inspected
and was in compliance with City code. (P.'s Exh. 130.)

37. In a letter to the Texas Department of Health
concerning cleanup of the Deepwood site, dated
December 18, 1991, the City stated that prior to any
sand and gravel mining taking place at the site, the City
would require its cleanup and submission of a plan
addressing environmental concerns and hazards. (P.'s
Exh. 111, 131.)

38. First State Bank acquired the Deepwood site in
1992, when Van Sickle defaulted on the loan. (Am. JPO
at 6.)

39. First State Bank sold the Deepwood site to Herman
Nethery in 1994, (Am. JPO at 6.)

40. On August 1, 1994, Nethery submitted a
construction permit application to the City on behalf of
Herman Nethery Recycling. (Am. JPO at 6.) The
proposed project was described as "fill & mine
property." /d.

41. Nethery was advised that the application needed an
accompanying affidavit stating that the proposed use
had been in continuous operation since the original
certificate of occupancy was issued. (Am. JPO at 6.) On

47a

August 2, 1994, Nether submitted an affidavit to the
City which stated that "VV Construction Company is in
fact in business and continuing business on said
property since 1982 to present time." (Am. JPO at 6.)

42. On August 2, 1994, the City issued a permit to
Nethery for mining at the Deepwood site. (Am. JPO at
6.) The accompanying contractor's authorization notes
that inspection of the property was required prior to
issuing the certificate of occupancy. (P.'s Exh. 88.)

43. At the beginning of fiscal year 1994-1995, the City
created an Illegal Dumping Team, which consisted of
six code enforcement inspectors whose mandate was to
stop and prevent illegal dumping. (Def.'s Exh. 117, 118.)

44. From August 22, 1994 through 1997, city inspectors
issued numerous citations for illegal dumping at the
Deepwood site. (Am. JPO at 7; Def.'s Exh. 81, 82.)

45. Despite the reports and citations for illegal
dumping, the City issued a certificate of occupancy to
Nethery for the Deepwood cite on December 5, 1994,
without first conducting the requisite inspection. (Am.
JPO at 7.)

46. During the time Nethery owned the Deepwood site,
it was operated by Herman Lee Gibbons. (P.'s Exh. 194
at 298.)

47. On December 13, 1994, a city employee authorized
Gibbons to "dump rock, gravel, sand, clean dirt free of
vegetation and concrete, generated from demolition
efforts associated with the Urban Rehabilitation

48a

Standards Board Demolition Program" at _ the
Deepwood site. (Def.'s Exh. 100.)

48. The operators of the Deepwood site produced copies
of City-issued documents to prove to their customers
that the site was a legal landfill. (P.'s Exh. 194 at 299.)

49. Gibbons, through his company Fruit of the Spirit
Services, was a subcontractor on certain City
demolition contracts for demolition and/or hauling of
debris. (Tr. Vol. n at 71-72; P.'s Exh. 196; P.'s Exh. 197
at 432-33; P.'s Exh. 218 at 507-08.)

50. Fruit of the Spirit Services trucks dumped debris at
the Deepwood site. (P.'s Exh. 118 at 2-3; P.'s Exh. 367
at 517; P.'s Exh. 378 at 21854.) -

51. Other subcontractors on City demolition projects
also disposed of debris at the Deepwood site. (P.'s Exh.
105 at 98-99, 102-103; P.'s Exh. 194 at 298; P.'s Exh. 196
at 426-26; P.'s Exh. 197 at 482, 484.)

52. Even though he had knowledge that some City
contractors were engaged in illegal dumping, the City
employee who supervised City demolition contracts for
the Department of Public Works and Transportation,
Kenn Hornbeck, did not seek to terminate those
demolition contracts because he had been provided with
no proof that material from City demolition sites was
being dumped illegally. (Tr. Vol. II at 52-57, 70.)

53. Attempts by the Department of Public Works and
Transportation to monitor whether City demolition
debris was disposed of in legal landfills were limited to
checking any receipts submitted for landfill disposal to

49a

see if they were from a legal landfill prior to
reimbursement. (Tr. Vol. I] at 55-59, 88-90, 101.)

54. Although Hornbeck knew Gibbons was operating an
illegal dump at the Deepwood site, Hornbeck continued
to forward contracts with Fruit of the Spirit Services as
a subcontraetor to the City Council for approval
without informing them of Gibbons’ connection with the
dump. (Tr. Vol. H at 75-76.)

55. On April 28, 1995, the City sued Nethery for
operating an illegal solid waste facility. (Am. JPO at 9.)

56. In spite of a 1995 temporary injunction ordering
Nethery to cease all operations at the Deepwood site,
illegal dumping continued through November 1996.
(P.'s Exh. 80.)

57. Nethery was twice held in contempt of court. As a
consequence, he spent 49 days in jail and was ordered
to pay $ 2,500 in fines. (Am. JPO at 9.)

58. In an attempt to eliminate the continued illegal
dumping at the Deepwood site, Environmental and
Health Services code inspectors, Dallas police officers,
and Department of Public Safety officers arrested 29
people and issued 152 code violation citations on June
22, 1995. (P.'s Exh. 392.) The assistance of law
enforcement officers was requested because the
operators of the facility were armed. /d.

59. The Deepwood site again caught fire and burned
from February 1997 through April 1997. (P.'s Exh. 37.)

0a
60. The City Council received a briefing on the

Deepwood site on April 16, 1997. (P.'s Exh. 38.) At the
briefing, councilwoman Charlotte Mayes stated that:

...it was pure neglect to allow something of
that magnitude to occur from 1982 to
present. This -- this -- this is kind of, to me,
unheard of that we would have a situation
that serious that we would choose to
somewhat look the other way... . This --
this type of situation in my opinion, should
have never escalated to the point to where it
is today. And had it been in another area of
the city, it would not have occurred. And all
I'm saying is this, we need to deal with this.
We need to deal with it expeditiously.

(P.'s Exh. 38 at 12-13.) Councilman Don Hicks stated:

You're not going to be able to get intelligent
people or unintelligent people to understand
that the City didn't have the principle
responsibility to stop this thing from going
on. I would like to the FBI investigation
(sic) to see if anybody in staffs got some
money for this. Is -- it's just too open... . 560
complaints, 95 within the last year and a
half, and nobody can stop it...

(P.'’s Exh. 38 at 19-20.) Councilman Larry Duncan
added:

We need to make sure that it gets cleaned
up for all the reasons you enumerated, and if
we can use federal money and state money

5la

to do that, so much the better, but we still,
however it happens, need to make that
commitment and make _ that happen
regardless of what it takes because we're
left with the problem. ... And the point is,
how did it go on this long? How many others
are there out there?

(P's Exh. 38 at 22.)

61. In a judgment entered on November 14, 1997,
Nethery was permanently enjoined from operating a
municipal solid waste facility at the Deepwood site.
(Am. JPO at 9.)

62. Mr. Nethery and Mr. Gibbons were both charged
with organized criminal activity in connection with
their operation of the Deepwood site. (Am. JPO at 9.)
Both men were found guilty and sentenced to prison.

Id. Mr. Nethery's conviction was reversed on appeal.
Id. :

63. Prior to the initiation of Civil Action No. 3:98-CV-
0291-H, the City made no efforts to remove the solid
waste at the Deepwood site.

II. CONCLUSIONS OF LAW

A. 42 U.S.C. S 1983; Equal Protection

Plaintiffs sue under 42 U.S.C. § 1983 for intentional
discrimination on the basis of race. To establish a claim
of intentional discrimination under §$ 1983, a plaintiff
must first prove a prima facie case of discrimination.
Wallace v. Texas Tech University, 80 F.3d 1042, 1047
(5th Cir. 1996). A plaintiff must show that an official

52a

action constitutes a violation of the Hqual Protection
Clause by providing proof of racially discriminatory
intent or purpose. Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S.
252, 265, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). To
prevail, Plaintiffs must show that the City's failure to
stop the illegal dumping at the Deepwood site was the
result of an official action, that the City intended to
discriminate against Plaintiffs on the basis of race, and
that the action violated the Equal Protection Clause.

1. Official action

In suing a municipality, a plaintiff must first prove
there was an official action by showing "three elements:
a policymaker; an official policy; and a violation of
constitutional rights whose moving force' is the policy
or custom." Piotrowski v. Houston, 237 F.3d 567, 578
(5th Cir. 2001) (citing Mone!! v. Dep't of Soc. Servs., 436
U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)).
"Actual or constructive knowledge of a custom must be
attributable to the governing body of the municipality
or to an official to whom that body has delegated policy-
making authority." Jd. at 579. Municipal liability cannot
he predicated on a theory of respondeat superior.
Rivera v. Houston Ind. School Dist., 349 F.3d 244, 247
(Sth Cir. 2003). Rather, the unconstitutional conduct
must be “directly attributable to the municipality
through some sort of official action or imprimatur."
Piotrowski, 237 F.3d at 578. A given policy is
attributable to the municipality when the policy was
made by an official to whom the governing body has
given policymaking authority. Bennett v. City of Slidell,
728 F.2d 762, 769 (5th Cir. 1984).

a. Poli:cymakers

53a

Plaintiffs assert that the City Council, the Board of
Adjustment, the City Manager, and the City Attorney
are policymakers for the City whose actions violated
Plaintiffs' constitutional rights. (Compl. at 14-15.)

A policy maker "must have final policymaking
authority." Rivera, 349 F.3d at 247. "When an official
has final authority in a matter involving the selection of
goals or of the means of achieving goals, his choices
represent governmental policy." Victoria W. v.
Larpenter, 205 F. Supp. 2d 580, 589 (E.D. La. 2002)
(citing Burge v. Parish of St. Tammany, 187 F.3d 452,
468 (5th Cir. 1999)). However, "policymaking authority
is more than discretion." Bennett, 728 F.2d at 769. A
policymaker takes the place of the governing body in a
designated area of city administration; he decides the
goals for a particular city function, devises the means of
achieving those goals, and is not supervised in the area
of his responsibility except as to the totality of his
performance. Webster v. City of Houston, 735 F.2d 838,
841 (Sth Cir. 1984). Policymaking authority is delegated
either by formal action of the governing body or by
conduct or practice which acknowledges the official in a
policymaking role. Bennett, 728 F.2d at 769. Whether or
not an official has final policymaking authority is a
question of state law. Jd. Both parties agree that the
City Council is a policymaker for the City.

The Board of Adjustment is authorized by state law.
TEX. LOC. GOV'T CODE § 211.008 authorizes a
municipality's governing body to create a board of
adjustment, which may then "make special exceptions
to the terms of the zoning ordinance that are consistent
with the general purpose and intent of the ordinance
and in accordance with any applicable rules contained in
the ordinance." The powers and duties of the Board of

54a

Adjustment are set forth in Dallas City Code Chapter
51A-3.102. (D.'s Exh. 39.) Included in its powers is the
authority to decide special exceptions, to grant
variances, and to discontinue, enlarge, or change a
nonconforming use. /d. Decisions of the Board of
Adjustment are final unless appealed to the district
court, but are not appealable to the City Council. Jd.
Although the Board of Adjustment does not have the
power to enact zoning ordinances, it does have final
authority to establish that part of municipal zoning
policy concerning the grant or denial of variances or
special exceptions. Because the Board of Adjustment
has final authority concerning the enforcement of
zoning decisions, its decisions constitute municipal
policy and make it a policymaker for the City for
purposes of § 1983. See e.g. Schiazza v. Zoning Hrg.
Bd. of Fairview Township, 168 F. Supp. 2d 361, 373
(M.D. Pa. 2001) (holding that a zoning board which had
final authority to grant or deny variances and special
exceptions was a policymaker); Loreto Dev. Co., Inc. v.
Village of Chardon, 1998 U.S. App. LEXIS 12183, 1998
WL 320981, *2-3 (6th Cir. June 4, 1998) (finding a
zoning board to be a policymaker when it had discretion
to deny or grant zoning permits and issue variances);
Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638
(11th Cir. 1991) (holding that a mayor was not a final
policymaker with respect to zoning decisions where the
city charter provided that the city counsel could
override the mayor's veto of zoning ordinances).

The City Manager is appointed by the City Council
to be the chief administrative and executive officer of
the city. (D.'s Exh. 31 at 27.) Appointment of a city
manager is authorized by TEX. LOC. GOV'T CODE §$
25.029, That statute sets forth the powers and duties of

55a

a city manager,-whieh include administering the
municipal business and any additional powers and
duties delegated by the governing body by ordinance.
TEX. LOC. GOV'T CODE § 25.029(a), (b). The City
Manager has the responsibility to see that all laws and
ordinances are enforced and to "recommend to the
council for adoption such measures as he may deem
necessary or expedient." (D.'s Exh. 31 at 28.) Neither
state law nor city ordinance grants final policymaking
authority to the City Manager concerning matters of
zoning enforcement. Therefore, the City Manager is not
a policymaker for the City for purposes of this lawsuit.

The appointment Of a-city-attorney is authorized by
TEX. LOC. GOV'T CODE § 24.051, which permits the
governing authority to define the duties of the position.
Pursuant to the City charter, the City Attorney is the
director of the legal department. (D.'s Exh. 31, p. 29.)
His duties include “upon his own initiative or upon the
direction of the city council" to appear in any and all
litigation affecting the City and "to institute such legal
proceedings as may be necessary or desirable on behalf
of the city." (D.'s Exh. 31, p. 29-31.) While it is clear that
the City Attorney has some discretion concerning the
institution of legal proceedings on behalf of the City,
neither state law nor city ordinance grants him final
authority to set policy with regard to zoning
enforcement. In fact, the institution of certain legal
proceedings may be directed by the City Council.
Therefore, the City Attorney is not a policymaker for
purposes of $ 1983.

For purposes of this lawsuit, the City Council and
the Board of Adjustment are policymakers whose
actions may subject the City to liability for
constitutional violations.

56a

b. Official pdicy

Plaintiffs assert that the City "implemented a policy
that allowed damping of demolition debris, including
wood, shingles, and other biodegradable material at
illegal landfills" which were disproportionately located
in minority ar2zas. (Compl. at 15-16.) Plaintiffs also
assert that the City "failed to use the zoning and land
use powers to protect African-American single-family
and other residential neighborhoods." (Compl. at 18.)

A city may be liable under § /983 if the execution of
one of its customs or policies deprives a plaintiff of his
constitutional rghts. Monell, 436 U.S. at 691. However,
liability does not attach merely because a city employed
a tortfeasor. id. at 694; Campbell v. City of San
Antonio, 43 F3d 973, 977 (Sth Cir. 1995). Municipal
liability under ¢ 1983 “is limited to action for which the
municipality is actually responsible . . . that is, acts
which the municipality has officially sanctioned or
ordered." Pemtaur v. Cincinnati, 475 U.S. 469, 479-80,
89 L. Ed. 2d 452, 106 S. Ct. 1292(1986). A city's policy or
custom must be "the moving force of the constitutgonal
violation." Palmer v. City of San Antonio, 810 F.2d 514,
516 (5th Cir. 1987) (quoting Monell, 436 U.S. at 694). A
single incident, unaccompanied by supporting history,
is not a sufficient basis for inferring a custom or policy
unless the actors involved were given official policy-
making authority. Worsham v. Pasadena, 881 F.2d
1336, 1339-40 (5th Cir. 1989) (citations omitted); see
also Palmer, 810 F.2d at 516. The alleged custom or
policy must be adopted by the municipality's governing
body before a municipality may be held liable. See
Bennett, 728 F.2d at 767.

57a

An official policy is: (1) a policy statement,
ordinance, regulation, or decision that is officially
adopted and promulgated by the governing body or by
an official who has policymaking authority; or (2) a
persistent, widespread practice of officials or
employees, which, although not authorized by officially
adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents
the municipality's policy. Cozzo v. Tangipahoa Parish
Council, 279 F.3d 273, 289 (5th Cir. 2002) (citing
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992)).
Plaintiffs do not claim that the alleged discriminatory
policies were officially adopted and promulgated by the
City Council. Rather, they allege that there existed a
persistent, widespread practice of city employees and
officials which was so common and well settled that it
fairly represented the City's policy.

"An act performed pursuant to a custom’ that has
not been formally approved by an _ appropriate
decisionmaker may fairly subject a municipality to
liability on the theory that the relevant practice is’ so
widespread as to have the force of law." Board of
County Comm'rs of Bryan County v. Brown, 520 U.S.
397, 404, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997). "If
actions of city employees are to be used to prove a
custom for which the municipality is to be held liable,
those actions must have occurred for so long or so
frequently that the course of conduct warrants the
attribution to the governing body of knowledge that the
objectionable conduct is the expected, accepted practice
of city employees." Webster v. City of Houston, 735 F.2d
838, 842 (5th Cir. 1984). The governing body must have
either actual or constructive knowledge of the alleged
policy. Jd. The governing body may be said to have

58a

constructive knowledge of a practice if "it would have
known of the violations if it had properly exercised its
responsibilities, as for example, where the violations
were so persistent and widespread that they were the
subject of prolonged public discussion or of a high
degree of publicity." Bennett, 728 F.2d at 768. When the
governing body has "knowledge of a pattern of
constitutionally offensive acts by their subordinates but
fail[s] to take remediai steps, the municipality may be
held liable for a subsequent violation if the |] inaction
amounts to deliberate indifference or to tacit
authorization of the offensive acts." Turpin v. Mailet,
619 F.2d 196, 201 (2nd Cir. 1980).

(1) Dumping of City demolition debris

Plaintiffs first allege a persistent, widespread
practice by City officials or employees attributable to a
policymaker to permit dumping of City demolition
debris at illegal landfills disproportionately located in
minority areas. (Compl. at 15-16.) City contractors
dumped debris at the Deepwood site. (Findings of Fact
PP 49, 50, 51.) The Department of Public Works and
Transportation employee who supervised City
demolition contracts turned a blind eye to illegal
dumping by City contractors absent proof that it was
City debris which was being illegally dumped. (Finding
of Fact P 52.) However, virtually no effort was made to
determine whether City demolition debris was disposed
of in legal landfills, even when it was known that
Gibbous, a subcontractor on City demolition projects,
was operating the Deepwood site as an illegal dump.
(Findings of Fact PP 53, 54.)

The evidence supports the inference that City
demolition debris was dumped at the Deepwood site. It

59a

is also clear that employees at the Department of Public
Works and Transportation could have, through the
exercise of proper diligence, known about and stopped
the dumping of City demolition debris. However, the
practice of failing to properly supervise the disposal of
City demolition debris which then made its way into the
Deepwood site does not rise to the level of an official
policy which may be attributed to a City policymaker.
Statements made by City Council members after the
site caught fire in 1997 belie any prior knowledge of
illegal dumping of City demolition debris at Deepwood.
As previously determined, the City Councii and the
Board of Adjustment were policymakers for the City.
There is no evidence that either policymaker had actual
or constructive knowledge of this practice at the time it
occurred. There is no evidence that the policymakers
were informed that contractors or subcontractors were
disposing of City demolition debris at the Deepwood
site. (Findings of Fact P 54.) Nor is there any evidence
showing that the fact that City demolition debris was
being illegally dumped was the subject of prolonged
public discussion or of a high degree of publicity such
that the policymakers may be said to have had
constructive knowleage of it. Plaintiffs have not
established by a preponderance of the evidence that
there existed a persistent, widespread practice of City
officials or employees attributable to a policymaker to
permit dumping of City demolition debris at illegal
landfills in minority areas.

(2) Failure to terminate illegal dumping

Plaintiffs also allege a persistent, widespread
practice by City officials or employees attributable to a

policymaker of failing to use the zoning and land use
powers to protect African-American neighborhoods.

60a

(Compl. at 18.) In 1982, the City issued a certificate of
occupancy for sand and gravel mining at the Deepwood
site based upon an application which clearly expressed
the owner's intent to vse the site as a landfill. (Findings
of Fact P 12, 13.) In 1983, in the face of repeated
complaints by residents to the City Council and
- evidence that citations for illegal dumping were issued
to the owner of the Deepwood site, the City Council
ordered tests for contaminants on the site and
requested that the Board of Adjustment consider
terminating the nonconforming use. (Findings of Fact
PP 17, 18, 19, 21.) The Board of Adjustment was not
informed that the Deepwood site was being used as an
illegal dump and decided to take no action to terminate
the nonconforming use. (Findings of Fact P 24.) The
Board of Adjustment failed to call another hearing on
the matter as planned, and despite continued reports of
illegal dumping at the Deepwood site, the City Council!
did not request that the board take up the issue again.
(Findings of Fact P 25, 26.)

From 1985 through 19938, City code inspectors
issued few citations for illegal dumping, and those that
were issued for dumping at the Deepwood site failed to
remedy the problem. (Findings of Fact P 28, 29.) In
1987, the City sued the owner and operator of the
Deepwood site and, in 1989, obtained a judgment
requiring the cessation of illegal dumping and cleanup
of the site, but that judgment was never enforced.
(Findings of Fact P 30, 32, 35.) In spite of the judgment
requiring cleanup of the Deepwood site and recent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0619%3A1. Public record. Not legal advice.