The opinion of the court was delivered by: Mark E. Fuller United States District Judge
MEMORANDUM OPINION AND ORDER
In this case, the Court is called upon to address the claims of a tenant of Section 8 federally subsidized rental property against the local housing authority and several of its employees for alleged violations of her due process rights, federal housing law, and state law arising out of the attempted termination of her Section 8 benefits. Pursuant to 42 U.S.C. § 1983, Minnie McCall ("McCall") brings suit against the Montgomery Housing Authority ("MHA"), Evette Hester ("Hester"), Cathy Harris ("Harris"), and Clevette Ellis ("Ellis") for alleged violations of her federally protected rights under Section 8 of the U.S. Housing Act of 1937, 42 U.S.C. § 1437 ("Section 8") and various amendments to the United States Constitution. McCall also brings breach of contract and negligence claims pursuant to Alabama law. This cause is before the Court Defendant Clevette Ellis's Motion for Summary Judgment (Doc. # 88) and on the Motion for Summary Judgment (Doc. # 85) that MHA, Hester and Harris jointly filed. For the reasons set forth below, the Court finds that Defendant Clevette Ellis's Motion for Summary Judgment (Doc. # 88) is due to be GRANTED and the Motion for Summary Judgment (Doc. # 85) that MHA, Hester and Harris is due to be GRANTED in part and DENIED in part.
This Court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. No challenge is made to the personal jurisdiction over the parties or the appropriateness of venue;*fn1 both of which are supported by the facts of this case.
Pursuant to Federal Rule of Civil Procedure 56(a), "a party may move for summary judgment, identifying each claim or defense - or the part of each claim of defense - on which summary judgment is sought." A court presented with such a motion must grant it "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A genuine dispute as to a material fact can only be found "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). According to the Supreme Court, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation omitted). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23.
After the movant satisfies this requirement, the burden shifts to "the adverse party [who] must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quotation omitted). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. at 247-48. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Eleventh Circuit Court of Appeals has held that "[a]ll reasonable inferences arising from the undisputed facts should be made in favor of the non-movant, but an inference based on speculation and conjecture is not reasonable." Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985) (citation omitted).
To the extent that any party submits argument in support of or in opposition to a motion for summary judgment, to establish that a fact either cannot be or is genuine, the party may only do so by citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, declarations, stipulations, admissions, interrogatory answers, or other materials. See Fed. R. Civ. P. 56(c)(1). While a court may consider other materials in the record, the Federal Rules of Civil Procedure only require the court to consider factual materials to which it has been properly referred by citation. See Fed. R. Civ. P. 56(c)(1) & (3). If a party fails to properly support an assertion or fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may, inter alia, consider the fact undisputed for purposes of the motion and grant summary judgment if the motion and supporting materials, including the facts considered undisputed, show that the movant is entitled to it. Fed. R. Civ. P. 56(e).
FACTS AND PROCEDURAL HISTORY
The Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the light most favorable to the non-moving party, establish the following facts relevant to the issues raised by defendants' motions:
For almost four decades, the federal government has provided rental assistance to low-income, elderly, and disabled families through the Section 8 housing program.*fn2 The Section 8 program is administered by the Department of Housing and Urban Development ("HUD"), which has promulgated regulations governing the Section 8 program ("HUD regulations"). On the local level, the Section 8 program is administered by local public housing authorities. The Section 8 program allows eligible families to apply to the local public housing authority for assistance. If the application is approved, the local public housing authority issues a Section 8 voucher to the family. With this voucher the family may locate a suitable rental unit in the private market and enter into a lease that is in accordance with HUD regulations. HUD has published regulations to implement and administer the Section 8 program. The HUD regulations pertinent to this lawsuit provide a right to an informal hearing to applicants who are terminated from the Section 8 program. See 24 C.F.R. §§ 982.551 - 982.553, & 982.555.
MHA provides public housing services to residents in the Montgomery area. At all times material to this suit, Hester served as the Executive Director of the MHA. As part of its housing-related services, MHA administers Section 8 benefits available to qualified recipients pursuant to guidelines and regulations the Department of Housing and Urban Development ("HUD") promulgated and pursuant to applicable federal law. At all times relevant to this action, Harris served as the Section 8 Director for the MHA. As Section 8 Director, Harris was charged with overseeing the whole Section 8 program for MHA. This included responsibility for functions such as waiting lists, recertification, move-ins, move-outs, reports, annual reports, payroll, decisions regarding termination of assistance, and other functions.
Under federal regulations and law, recipients of Section 8 benefits and those family members living with the recipient must refrain from engaging in certain types of criminal behavior. In particular these individuals cannot engage in drug-related criminal activity, violent criminal activity, or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents or persons residing in the immediate vicinity of the recipient's premises. This prohibition is set forth not only in the applicable regulations but also in the MHA Administrative Plan. See Doc. # 85 at Ex. E p. 39. Incidents of actual or threatened domestic violence shall not be good cause for terminating the assistance of the victim of such violence. Id. at p. 40.
From time to time, MHA runs background checks on existing Section 8 recipients and their families to ensure compliance with the restrictions on criminal behavior. In order to make such checks at the relevant period of time, MHA entered into an agreement with the Montgomery County Sheriff's Department and a public safety officer named Eric Brascomb ("Brascomb") to run the criminal background checks.*fn3 Once the MHA receives information from the Montgomery County Sheriff's Department, which consists only of the name of the person involved and the name of the offense with which they were charged, Harris reviewed the information. If Harris determined that a receipt had violated the MHA rules, she sent a letter to the Section 8 recipient advising the recipient of the termination of the benefits and the right to a hearing.
MHA employed Ellis in its human resources department as Personnel Director fo rMHA.*fn4 She did not work in the Section 8 program itself, but did occasionally serve as a hearing officer for MHA. MHA provided Ellis with no formal training relating to her duties as a hearing officer.*fn5 Hester did sit down with Ellis and discuss the policies and procedures for conducting termination hearings that were contained in MHA's Administrative Plan. On some occasions she served as a hearing officer at administrative hearings relating to the termination of Section 8 benefits. The MHA Administrative Plan contains detailed information regarding procedures for terminating the assistance provided to participants in the Section 8 Program. Doc. # 85 at Ex. E pp. 59-60. Ellis testified that when she acted as a Hearing Officer for MHA, she followed the policies and procedures MHA had established. However, the evidence before the Court calls this factual assertion into question.*fn6 While her responsibilities were broad enough to encompass other issues, during her tenure with MHA, Ellis only served as a hearing officer in hearings requested when a recipient had received a notice that the Section 8 benefits were being terminated due to criminal activity. Ellis admits that after conducting such hearings she would confer with Harris regarding whether the information received was adequate enough to determine if the factual basis for finding a rules violation existed or not. Furthermore, Ellis admits that she could not think of a single criminal charge of any type that did not, in her view, violate the peaceful enjoyment of the neighbors.
When a Section 8 benefits recipient received a termination notice, he could contact either Ellis or Harris to request a hearing. Upon receipt of a request for a hearing, Harris would work with Ellis to schedule a hearing. The regulations set forth in 24 C.F.R. § 982.555 govern the hearings process. The hearings are held in the Section 9 department. Harris scheduled the hearings and sent out notice to the Section 8 benefits recipient who had requested a hearing. If such a hearing needed to be rescheduled, the recipient could call either Harris or Ellis.
McCall and her children participated in the Section 8 program MHA administered. In late August of 2009, Harris received information that McCall had an active warrant for first degree criminal mischief and that her daughter had a charge if theft by fraud.*fn7 Harris drafted the notice of termination of assistance letter for McCall on August 31, 2009. In early September of 2009, McCall received the letter from Harris regarding termination of McCall's housing assistance. The only explanation as to the basis for the termination was the following text contained in the letter:
Violation of Housing Choice Voucher. Section 4. Obligations of the Family: D(4) Engaged in drug-related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premise.
Doc. 93-2 (emphasis in original). The Harris's letter also advised McCall that if she wished to appeal the decision, she had the right to an informal hearing, but that the request for such a hearing must be submitted to MHA in writing within ten days from August 31, 2009. The letter advised McCall of the address to which to mail or deliver a written hearing request.
On September 2, 2009, McCall drafted a letter to the Section 8 office of the MHA regarding the termination of her assistance and formally asking to appeal. In this letter, she denied engaging in any drug-related criminal activity or violent criminal activity or other criminal activity that threatened the health, safety or right to peaceful enjoyment of property by her neighbors. She also set forth the only things she could think of that might have lead to the alleged violation. She stated that her house was drug free but that a neighbor was angry with her for telling the landlord that the neighbor was smoking marijuana and that the odor was coming in her unit. She also outlined that her sister Frances Fanning, who was also a neighbor, was both angry with McCall and mentally ill.*fn8
After receiving the termination letter, McCall also began to search for legal representation. Ultimately, an attorney from Legal Services Alabama agreed to act on McCall's behalf. On September 9, 2009, this attorney timely requested a hearing to appeal the termination decision. After receiving the termination letter and before the hearing, McCall also contacted Harris many times trying to get information as to what procedures had been used to make the determination that McCall had engaged in criminal activity. Harris told her that the information would be presented at the hearing and refused to provide any specific information about the alleged violation of Section 4 of the Housing Choice Voucher.
On September 9, 2009, MHA sent McCall a letter advising her that her hearing had been scheduled in accordance with her request. The hearing was set on September 18, 2009 at 1:30 p.m. The letter advising McCall of the date and time of the hearing also informed her of the way to re-schedule the hearing if necessary by calling a specified telephone number.*fn9
The letter also cautioned McCall that "[f]ailure to appear for [her] scheduled appointment will result in a possible termination of [her] housing assistance." See Doc. # 93-7.
On September 16, 2009, McCall wrote a letter to Harris and Hester. In this letter, McCall discussed possibly rescheduling a re-examination until after her hearing. This letter discloses that McCall is ill and that her asthma was acting up. She also complained of certain people conspiring against her.
On September 18, 2009, McCall was still ill*fn10 and could not attend the hearing. Although the record does not make clear exactly when, McCall avers that she called Hester's office several times to try to reschedule the hearing.*fn11 McCall spoke to Hester's secretary during these calls. Additionally, at times and dates unspecified, McCall also called and left voice-mail messages with Ellis' office trying to schedule another ...