Revised June 2, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10858
IVING THOMAS; BARBARA THOMAS
Plaintiffs-Appellees
versus
CITY OF DALLAS; ET AL
Defendants
DARWIN GAINES; AQUILLA ALLEN
Defendants-Appellants
Appeals from the United States District Court
for the Northern District of Texas
May 11, 1999
Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This claim arises from a bureaucratic snafu. The City of
Dallas, by a series of mistakes, demolished a small house after
erroneously concluding it was a nuisance. This suit by the
property owner ensued. We must decide whether the district court
erred in refusing to recognize a defense of absolute immunity to a
claim for money damages asserted by an official of the responsible
city agency and qualified immunity asserted by one of its
employees. We conclude that the invoked defenses are available and
reverse and remand.
I
In 1993, Iving and Barbara Thomas purchased a single family
home at 4226 Landrum Avenue, Dallas, Texas. The Thomases never
resided there but were making repairs and improvements to the house
over time. In January 1994, the Code Enforcement Department of the
City of Dallas gave Mr. Thomas a notice of violation regarding the
detached garage and told Mr. Thomas to repair or demolish the
accessory structure within 30 days. Four months later, the code
inspector found no repairs or demolition of the garage and issued
a citation to Mr. Thomas. The code inspector forwarded the file on
the garage to the Urban Rehabilitation Standards Board on June 20,
1994. The URSB is a board of volunteers appointed by the mayor and
city council to decide cases about urban nuisance.
The URSB scheduled a hearing on October 4, 1996 regarding the
demolition of the garage. Notice was sent to the last known
address for Iving Thomas, 4226 Landrum Avenue, Dallas, Texas 75216,
but the notice was returned to the URSB as unclaimed. At the
hearing, the case was “passed” so that the URSB could later assess
the main structure with the accessory structure in one hearing.1
1
The Thomases assert that there is neither a record of an
interior inspection of the house nor a record that they were given
any notice about substandard conditions of the house.
2
A new hearing on the two structures was set for November 1, 1994.
In the meantime, on October 6, 1994, Mr. Thomas applied for and
received a demolition permit from the city and demolished the
garage.
Aquila Allen, the URSB Administrator, sent notice of the
scheduled November 1, 1994 URSB hearing to the last known address
of Iving Thomas. The notice provided, in pertinent part, the
following:
Property located at 4226 Landrum Avenue, Lot(s) 12, Block
5/6083 will be among the properties considered. At this
hearing the Administrator will present evidence of the
condition of the structure(s). The owner, lessor,
occupant or lienholder, will be given the opportunity to
present evidence and witnesses if so desired.
The notice then listed ten actions which the URSB could take with
respect to the property; the last action listed was demolition.
In addition to this mailed notice, Allen also published notice
of the hearing in the Daily Commercial Record at least five days
before the hearing. While § 27-13 of the Dallas City Code permits
notice by publication, it does so only after both written notice
and a diligent search to ascertain the party’s correct address have
failed. The code also provides optional personal notice, which was
not attempted in this case.
On November 1, 1994, the URSB reviewed the Thomases’ case,
even though there was no mail return receipt on file indicating
that the Thomases had been given notice by mail. Darwin Gaines,
member and chairman of the URSB, presided over the hearing and
3
voted to demolish the Thomases’ house on the ground that it was an
urban nuisance. The URSB issued a demolition order for the entire
dwelling at 4226 Landrum Avenue and a notice was sent to the
Thomases’ same address. The demolition order was also published in
the Dallas Commercial Record. On November 11, 1994, a certified
mail return receipt was finally received by the URSB, indicating
that the Thomases did not receive notice of the scheduled November
1 hearing until a week after the hearing was held.
Nonetheless, the city proceeded with its November 1 decision
to demolish the structure. Notice of the demolition order was sent
by certified mail, but was returned to the URSB as “return to
sender, attempted not known.” Eleven months later, on October 25,
1995, the city demolished the Thomases’ house and sent them a bill
for $1379.32.
The Thomases filed suit asserting claims that Gaines and Allen
violated their right to due process under the Fourteenth Amendment
by failing to provide proper notice of the URSB hearings concerning
the demolition of their house.2 The district court granted the
Thomases’ summary judgment motion, specifically denying the
absolute and qualified immunity defenses raised by Gaines and
Allen.
2
The Thomases also sued the City of Dallas under § 1983 and
filed a motion for partial summary judgment against the City. The
district court granted the motion. That ruling is not before us.
4
Gaines and Allen appeal. Under the collateral order doctrine,
we have jurisdiction over this interlocutory appeal to review the
district court’s denial of immunity to Gaines and Allen. See Cantu
v. Rocha, 77 F.3d 795, 802-03 (5th Cir. 1996)(citing Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)).
II
We review a summary judgment de novo, applying the same
standards as used by the district court, reviewing the facts and
drawing inferences in favor of the nonmoving party. See Elliott v.
Lynn, 38 F.3d 188 (5th Cir. 1994). Summary judgment is proper only
when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. See FED.
R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
“To win summary judgment, the movant must show that the evidence
would not permit the nonmovant to carry its burden of proof at
trial.” Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998).
III
Gaines claims absolute immunity, alternatively qualified
immunity, contending the URSB performs a quasi-judicial function.
The Thomases do not say otherwise for orders to demolish houses.
Rather, they contend that Gaines voted to demolish their house when
there was no evidence in the URSB file of notice to the Thomases of
such a hearing and that act should not be shielded. This argument
fails to grasp the reach of absolute immunity. As we will explain,
if the job enjoys absolute immunity, the inquiry into liability
5
narrows to whether the official was about his work when engaged in
the accused conduct. Failure in a given case to apply the rules
correctly does not leave an official unsheltered from liability --
indeed, that is the protection afforded by absolute immunity.
An official who seeks absolute immunity has the burden of
showing that public policy justifies the extension of the doctrine
of judicial immunity. See Butz v. Economou, 438 U.S. 478, 506-07
(1978). To assess whether absolute immunity should be extended, we
must examine the character of the officer’s duties and the
relationship to the parties. See Mylett v. Mullican, 992 F.2d
1347, 1352 (5th Cir. 1993)(citing Stump v. Sparkman, 435 U.S. 349,
359 (1978)). Unfortunately, our inquiry is less than exact. We
consider the following factors:
(1) the need to assure that the individual can perform
his functions without harassment or intimidation;
(2) the presence of safeguards that reduce the need for
private damages actions as a means of controlling
unconstitutional conduct;
(3) insulation from political influence;
(4) the importance of precedent;
(5) the adversarial nature of the process;
(6) the correctability of the error on appeal.
Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz, 438
U.S. at 512).
Absolute immunity extends to agency or board officials
performing functions that are quasi-judicial in nature. See
6
O’Neal v. Mississippi Bd. of Nursing, 113 F.3d 62, 65 (5th Cir.
1997); Johnson v. Kegans, 870 F.2d 992, 996 (5th Cir. 1989). We
are to use a "functional approach" that looks to "the nature of
the function performed, not the identity of the actor who performed
it." Imbler v. Pachtman, 424 U.S. 409, 431 (1976). The six
enumerated factors, characteristics of the judicial processes,
serve to assist in the inquiry into function. See Cleavinger, 474
U.S. at 202. Here, it appears that at least five of the six
factors favor absolute immunity.
First, the URSB is charged with the inherently controversial
task of demolishing private residences. It is comprised of
volunteer members serving in unpaid, two-year positions. This is
significant because harassing litigation takes a heavy toll when
the task depends on volunteers from the community.
Second, the URSB proceedings have sufficient procedural
safeguards. The City Code provides that property owners have a
right: to receive notice of URSB hearings, see Dallas, Tex., Rev.
City Code ch. 27, art. II, § 27-13(b); to present and cross-examine
witnesses, see id. § 27-9(c); to request that a case be reheard,
see id. § 27-14(a), (b); and to appeal an adverse decision to state
district court, see id. § 27-9(e).
Third, the members of the URSB are not elected, but appointed
by members of the city council. To this extent, they are shielded
from direct political influence.
7
Fourth, although the URSB’s decisions are not guided by URSB
precedent, the board is bound by specific standards for evaluating
structures set in the Dallas City Code. This factor does not
meaningfully point in one direction or the other.
Fifth, hearings before the URSB are adversarial. Parties are
free to present evidence and testimony, see id. § 27-9(c);
witnesses must testify under oath, see id. § 27-9(a); and parties
have the right to cross-examine adverse witnesses, see id. § 27-
9(c). The district court was persuaded that the city code aside,
there was in fact no meaningful cross-examination because staff had
briefed the board privately before the hearing. We find no record
basis for a conclusion as a matter of law that the city code was
ignored in the routine of business. That most matters are
uncontested does not mean that the right was not available.
Finally, as already noted, errors may be corrected on appeal
to state district courts. See id. § 27-9(e). The federal district
court did not think this judicial review was of much practical
value. As we see it, the procedural apparatus is sound, and we
have no record basis for concluding that it is unsound in
operation.
These general factors favor immunity. Our focus now must be
upon the defendants’ particular job responsibilities and their acts
about which the Thomases complain. See Mylett v. Mullican, 992
F.2d 1347, 1352 (5th Cir. 1993).
8
Gaines is a member of the URSB and its chairman. As chairman
he presides over all URSB hearings and is responsible for
administering oaths. As a participating member, he votes on cases
based on the testimony and evidence before the panel. Gaines
functions in a manner comparable to that of a judge. See Swann v.
Dallas, 922 F. Supp. 1184, 1192-95 (N.D. Tex. 1996) (holding in a
comprehensive and well-reasoned opinion that members of URSB are
entitled to absolute immunity); see also Butz, 438 U.S. at 511-17;
O’Neal, 113 F.3d at 65. We are persuaded that the district court
erred in rejecting Gaines’ claim of absolute immunity.
IV
Allen also claims absolute immunity, alternatively, qualified
immunity. She asserts her position is essentially that of a
prosecutor. See URSB Code § 27-13(j). We agree with the district
court that the claim of absolute immunity is not supportable.
Allen’s duty is more accurately characterized as administrative,
rather than prosecutorial, and a person performing routine
administrative duties is not entitled to absolute immunity. See
Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir. 1981); Williams v.
Wood, 612 F.2d 982, 984-85 (5th Cir. 1980).
V
To determine whether Allen is entitled to qualified immunity,
we must determine (1) whether the Thomases stated a claim for
violation of a constitutional right; (2) whether this
constitutional right was established at the time of the actions
9
underlying this lawsuit; and (3) whether the Thomases established
that Allen’s conduct was objectively unreasonable in light of the
legal rules clearly established. See Eugene v. Alief Indep. Sch.
Dist., 65 F.3d 1299, 1305 (5th Cir. 1995).
The Thomases alleged that Allen denied them due process by
failing to provide them with proper notice of the hearing
concerning the demolition of their house. See Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (holding that
state action affecting property generally requires advance notice).
The first two prongs of the qualified immunity test are satisfied,
and we turn to the third -- whether Allen’s actions were
objectively unreasonable.
The district court denied qualified immunity finding that
Allen’s conduct was not objectively reasonable. The district court
concluded that “[t]he uncontroverted facts show that Ms. Allen knew
that the Plaintiffs had not received notice of the October or
November hearings and that the Board could not proceed until they
had been given proper notice.” Allen challenges the district
court’s conclusion and argues that she is entitled to qualified
immunity because her actions were objectively reasonable.
While the summary judgment record indicates that either the
members of the URSB, the URSB Administrator, or the URSB staff
typically would check a file before a hearing to see if there was
a return receipt from a targeted individual, Chapter 27 of the
Dallas City Code, entitled Minimum Urban Rehabilitation Standards,
10
provides that the director/administrator of the URSB is responsible
for giving notice to targeted individuals. We agree with the
district court that Allen, as the administrator of the URSB, bears
the responsibility of ensuring that notice is given.
Allen maintains that she gave the notice required by Chapter
27 of the Dallas City Code. She mailed certified notice of the
scheduled October and November hearings as well as the outcome of
the November 1 hearing to the Thomases’ last known address. In
addition, she gave notice by publication of the pending demolition
order. Yet, the Thomases argue it was objectively unreasonable to
allow the November 1 hearing to proceed when no return receipt was
on file, and the certified mail receipt showed the Thomases did not
receive the notice of the November 1 meeting until November 8.
While it is arguable that Allen should have known that the
Thomases’ return receipt card was not in the file at the time of
the November 1, 1994 hearing, that alone does not establish that
she intentionally and knowingly violated the Thomases’ due process
right in violation of § 1983. Allen made the proper attempts to
notify the Thomases, but was undoubtedly negligent in failing to
bring the lack of a return receipt in the Thomases’ file to the
URSB’s attention. Whether Allen’s conduct constituted an
intentional deprivation of the Thomases’ due process rights or
demonstrated that she was “plainly incompetent” in her duties as
the URSB Administrator is a genuine issue of material fact that
should be determined by a jury. See Cantu, 77 F.3d at 806 (stating
11
that “[q]ualified immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law’” (citing
Anderson, 483 U.S. at 638 (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986))).
VI
In sum, we find that Gaines is entitled to absolute immunity,
but Allen is not entitled absolute immunity. The district court’s
grant of summary judgment against Allen on the question of
qualified immunity is REVERSED and REMANDED for proceedings
consistent with this opinion.
12