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Hooper v. North Bend City/Coos-Curry Housing Authorities

United States District Court, D. Oregon

July 18, 2017

DENNIS R. HOOPER, Plaintiff,
v.
NORTH BEND CITY/COOS-CURRY HOUSING AUTHORITIES; LISA LUCERO, in her Official Capacity and as an Individual; LARRY SCARBROUGH, in his Official Capacity and as an Individual; et al., Defendants.

          OPINION AND ORDER

          Michael J. McShane, United States District Judge

         In December of 2013, employees of the North Bend/ Coos-Curry Housing Authority (Housing Authority) entered plaintiff's dwelling without notice following a power shut off to his unit. They were acting pursuant to a policy of the Housing Authority that treats power shut offs as an “emergency.” Plaintiff, in his complaint, alleges that the entry into his unit violates his civil rights under 42 U.S.C. § 1983 (unreasonable search and First Amendment). He also brings numerous tort claims (invasion of privacy, trespass, infliction of emotional distress) and a claim for breach of contract. Because the individual defendants are entitled to qualified and discretionary immunity, they are entitled to Summary Judgment as to the civil rights claim and the tort claims. Plaintiff's contract claim falls outside of the statute of limitations and must be dismissed. Finally, plaintiff has failed to plead compensable injury.

         FACTUAL BACKGROUND

         The facts in this case are undisputed. Plaintiff was under a residential lease with Housing Authority. Matthews Decl. Ex. 1 pages 6 and 21, ECF No. 67. As part of the lease, plaintiff was obligated to pay his own electricity bill. Id., page 7. The lease also allowed the Housing Authority, as Landlord, to “enter the dwelling unit at any time without advance notice when there is reasonable cause to believe an emergency exists.” Id., pages 8 and 23.

         As a result of plaintiff's unpaid electricity bills, the utility company turned off the electricity to plaintiff's rental unit on December 18 or 19, 2013. Id., pages 8-10. After his electricity was turned off, plaintiff remained at his rental unit for a few days, and then left without informing anyone at the Housing Authority about the shut off. He did not return until January 2, 2014. Id., pages 11-14.

         On December 23, 2013, Larry Scarbrough, a Housing Authority maintenance employee, noticed that the meter at plaintiff's unit had been red tagged, indicating the electricity had been turned off. Scarbrough Decl., ¶ 3, ECF No. 21. Mr. Scarbrough knew that plaintiff was out of town and reported the electricity shut off to Housing Authority management that day. Id., ¶¶ 4-5.

         After learning what had happened, Lisa Lucero, the public housing manager for Housing Authority, contacted the electric utility to confirm that the electricity to the unit had been shut off. Ms. Lucero then directed Mr. Scarbrough to enter and inspect plaintiff's unit. Lucero Decl. ¶ 4; ECF No. 22. He did so on December 24, 2013. Scarbrough Decl. ¶¶ 5-6; ECF No. 21. Finding nothing that required immediate attention, he closed the unit, posted a notice of his entry on the front door, and left. Id., ¶¶ 6-7.

         Housing Authority has a standard policy and practice to inspect a unit when it learns that electricity has been turned off for non-payment. Lucero Decl. ¶ 7; ECF No. 22. The purpose of the policy and practice is to address concerns that may result from the disconnection of utilities, often associated with a tenant's abandonment of the unit. Turner Decl. ¶ 6; ECF No. 20. These concerns range from frozen or burst water pipes, rotting food stuffs, vermin infestations, distressed pets, deterioration of living areas, and vandalism. Turner Decl. ¶ 6; Lucero Decl. ¶ 7. Housing Authority considers the need to immediately assess and remedy these types of problems an emergency. Turner Decl. ¶ 7.

         The Housing Authority's decision to treat all electric power disconnections as an emergency was made by the Housing Authority's executive director by delegation of authority from the Housing Authority's Board of Directors. Newman Decl. ¶ 3; ECF No. 69. The Housing Authority's policy of treating a power disconnect as an emergency and conducting an inspection does not allow staff to make any exceptions. Id. ¶ 7.

         Plaintiff alleges compensatory damages in the amount of $3, 327.00. Second Amend. Compl. 6; ECF No. 50. Plaintiff's economic damages claim consists of the twenty dollars that he paid to a friend to cover gas for a ride to attend a veteran's group meeting. Matthews Decl. II, Ex. 1; ECF No. 68. Plaintiff's purpose in attending the meeting was to poll group members to find out if any of them had experienced privacy issues in public housing similar to what plaintiff experienced. Id. The remaining $3, 307 in damages claimed by plaintiff is for emotional distress, pain, and suffering. Id. Plaintiff chose that dollar amount simply because he wanted a number that was “legitimate”-more than insignificant, but less than overzealous. Id.

         During the same time period for which plaintiff alleges emotional distress in this case, plaintiff also alleges mental and emotional distress, duress, pain and suffering, stress and anxiety, angst and mental anguish, resulting from no fewer than six different tortious sources unrelated to this the December 2013 entry into his dwelling. Id. For example plaintiff has filed a complaint alleging mental and emotional distress as the result of the activities of his neighbors from April 2013 through February 2017. Id.; Dennis Hooper v. United States Dep't. of Hous. and Urban Dev., No. 6:17-cv-00031-MC, Opinion & Order, Dkt No. 28 (D. Or. May 31, 2017).

         STANDARD OF REVIEW

         The court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is “genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the ...


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