Escobar v. Gaines

ANGEL ENRIQUE NUNEZ ESCOBAR, et al. v. LEE GAINES, et al.

NO. 3-11-0994

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

September 4, 2014

JUDGE CAMPBELL

MEMORANDUM

Pending before the Court, among other things, are two Motions for Summary Judgment filed by the "Real Estate Defendants"¹ (Docket Nos. 368 and 372). For the reasons stated herein, the Motions are GRANTED in part and DENIED in part.

INTRODUCTION

The Court assumes the reader is familiar with the facts alleged by the parties, which are in conflict, and will discuss the facts only as related to each issue. Plaintiffs allege claims against the Real Estate Defendants for conspiracy to violate Plaintiffs' Fourth, Fifth and Fourteenth Amendment rights under 42 U.S.C. §1983, Bivens,² and 42 U.S.C. §1985(3) and for violations of the Fourteenth Amendment and the Fair Housing Act.

SUMMARY JUDGMENT

Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. StateFarm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary judgment motion has the initial burden of informing the Court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this burden by presenting affirmative evidence that negates an element of the non-moving party's claim or by demonstrating an absence of evidence to support the nonmoving party's case. Id.

In deciding a motion for summary judgment, the Court must review all the evidence, facts and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the evidence,judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive summary judgment; rather, there must be evidence on which the jury could reasonably find for the nonmoving party. Rodgers, 344 F.3d at 595.

CIVIL CONSPIRACY

Greystar Real Estate Partners

The Real Estate Defendants' first Motion relates to Plaintiffs' civil conspiracy claims. Defendants contend that Defendant Greystar Real Estate Partners, LLC is not a proper party to this lawsuit and should be dismissed. Defendants claim that Greystar Management, not Greystar Real Estate, contracted to manage the Clairmont and hired and paid the employees who worked at the Clairmont. Defendants argue that Greystar Real Estate Partners is a separate entity from GreystarManagement; did not own, lease or manage the Clairmont; did not contract or undertake to provide any services at or for the Clairmont; made no decisions regarding the management or operation of the Clairmont; and never communicated with law enforcement agents about any events at the Clairmont. See Affidavit of Stacy Hunt (Docket No. 368-3).

Plaintiffs argue that there are genuine issues of material fact as to what, if any, role Greystar Real Estate played in managing the Clairmont and in the alleged conspiracy. The Court finds that the evidence offered by Plaintiffs to support their claim fails to show a genuine issue of material fact as to any involvement of Greystar Real Estate Partners in the events underlying this lawsuit. Greystar Real Estate Partners cannot be held liable on a respondeat superior basis. Therefore, Plaintiffs' claims against Defendant Greystar Real Estate Partners should be dismissed. Bivens Claims

The Real Estate Defendants assert that Bivens claims may not be brought against business entities, just individuals. Bivens held that when a federal agent, acting under color of his authority violates the Constitution, the agent's victim may recover damages against the individual agent. Bivens, 403 U.S. 388, 389 (1971). Such claims are the counterpart to suits under Section 1983 against individuals acting under color of state law. Vecto Research, Inc. v. Howard & Howard Attorneys, 76 F.3d 692, 698 (6^th Cir. 1996).

This Court has previously found that Bivens does not confer a right of action for damages against federal agencies or private entities acting under color of federal law. Escobar v. Gaines, 2013 WL 1344900 at * 3 (M.D. Tenn. April 1, 2013). Nothing in Plaintiffs' arguments persuades the Court to change this ruling. See Correctional Services Corp. v. Malesko, 122 S.Ct. 515, 516-17 (2001) (purpose of Bivens is to deter individual federal officers from committing constitutionalviolations). Accordingly, Plaintiffs' Bivens claims against Defendants TriTex Real Estate Advisors, Trimont Real Estate Advisors and Greystar Management Services should be dismissed. Section 1983

Plaintiffs allege that the Real Estate Defendants conspired with each other and the other Defendants to violate Plaintiffs' Fourth and Fifth Amendment rights and Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment.³ Defendants contend there is no evidence that they physically assisted, participated in, or executed any law enforcement action and, therefore, no evidence that they participated in any conspiracy. Defendants also argue that they are not state actors.

To prove a Section 1983 claim, a plaintiff must establish that: (1) he was deprived of a right secured by the United States Constitution or laws; and (2) the deprivation was caused by a person acting under color of state law. Spurlock v. Whitley, 971 F.Supp. 1166, 1175 (M.D. Tenn. 1997). Private actors who "corruptly conspire" with state officials to deprive individuals of federal rights act under color of state law within the meaning of Section 1983. Adams v. Springmeyer, ___ F. Supp. 2d ___, 2014 WL 1785341 at * 21 (W.D. Pa. May 5, 2014) (citing Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)).

A civil conspiracy claim under Section 1983 lies where there is an agreement between two or more persons to injure another by unlawful action. Robertson v. Lucas, 753 F.3d 606, 622 (6^th Cir. 2014). To prevail, Plaintiffs must demonstrate that (1) a single plan existed, (2) the conspirators shared a conspiratorial objective to deprive Plaintiffs of their constitutional rights, and (3) an overt act was committed in furtherance of the conspiracy that caused injury to the plaintiff. Id.

Plaintiffs are not required to prove an express agreement among all the conspirators, and each conspirator need not have known all the details of the illegal plan or all of the participants involved. Id. In opposing a summary judgment motion, the Plaintiffs are entitled to rely on circumstantial evidence to establish an agreement among conspirators. Id. Nevertheless, conspiracy claims must be pled with some degree of specificity and vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under Section 1983. Id. A conspirator is liable under Section 1983 for all foreseeable acts taken in furtherance of the conspiracy, regardless of whether the conspirator directly participated in the act. Canter v. Hardy, 188 F.Supp.2d 773, 792 (E.D. Mich. 2002).

The Real Estate Defendants do not dispute that Tracy Hall communicated with law enforcement about the Clairmont numerous times before October 20, 2010. What was discussed by whom with whom involves disputed issues of fact which cannot be decided at this stage of the litigation.⁴ Whether the goal of Defendants was to rid the Clairmont of Hispanics or to rid the Clairmont of gang members and criminal activity is a material issue of fact, to be determined by the jury. On the facts presented here, a jury could find either way.⁵

The corporate Defendants argue that they cannot be liable for conspiracy under any respondeat superior theory. Plaintiffs have not sued these Defendants under a respondeat superior theory. Plaintiffs contend that the corporate Defendants, through their agents and employees, made decisions in furtherance of the conspiracy with a discriminatory motive. It is a vastly different allegation to say that an agent of a company committed a violation on behalf of the company than to say that the employee committed a violation about which the company may not even have known, but for which the company is vicariously liable. Johnson v. Dossey, 515 F.3d 778, 783 (7^th Cir. 2008). Decisions made and actions directed on behalf of corporate Defendants may create Section 1983 liability. Because there are genuine issues of material fact, the Real Estate Defendants (otherthan Greystar Real Estate Partners, which is already dismissed) are not entitled to summary judgment on Plaintiffs' Section 1983 claims.

Section 1985(3)

42 U.S.C. § 1985(3) provides a cause of action for conspiracies to deprive individuals of their civil rights. The statute makes damages available against those who conspire to deny any person(s) the equal protection of the laws. Hines v. Town of Vonore, 912 F. Supp.2d 628, 653 (E.D. Tenn. 2012). To establish a viable claim under Section 1985(3), a plaintiff must show (1) a conspiracy involving two or more persons; (2) for the purpose of depriving a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy (4) which causes a deprivation of a right or privilege. Id. A plaintiff must also establish that the conspiracy was motivated by a class-based animus.⁶ Id.; Peters v. Fair, 427 F.3d 1035, 1038 (6^th Cir. 2005).

Plaintiffs have demonstrated that there are disputed genuine issues of material fact as to Plaintiffs' Section 1985(3) claims for the same reasons set forth above. Until a jury...