Delkhah v. Moore , 240 F. App'x 768 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 4, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
A ZIZA LLA H D ELK H A H ,
Plaintiff-Appellant,
v. No. 06-3226
(D.C. No. 04-CV-2543-KHV)
ALLENE M OORE, KDHD Economic (D . Kan.)
D evelopment R epresentative; KDHD,
Former Kansas Division of Housing
Development,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before L UC ER O, Circuit Judge, BROR BY, Senior Circuit Judge, and
M cCO NNELL, Circuit Judge.
Plaintiff Azizallah Delkhah appeals the district court’s grant of summary
judgment in favor of defendants on his claims of discrimination and retaliation
based on national origin. He alleged that defendants violated his rights under
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
federal constitutional and statutory law when his rent was raised even though he
qualified for free public housing. W e grant M r. Delkhah’s motion to proceed on
appeal in form a pauperis and affirm.
Background
The district court’s order sets out a detailed recitation of the factual
background. Therefore, we provide only a brief overview. During the relevant
tim e period, M r. D elkhah, w ho is originally from Iran, resided with his two
daughters at Pine Tree Cooperative Inc. (Pine Tree), which provided him
subsidized housing under Section 8. See 42 U.S.C. § 1437f. Section 8 is a
housing-subsidy program funded by the Department of Housing and Urban
Development (HUD). Defendant Kansas Division of Housing Development
(KDHD) 1 was the Section-8 contract administrator for Pine Tree. Defendant
M oore was a compliance manager for KDHD, whose duties included monitoring
Section-8 properties, including Pine Tree, to verify that they complied with HU D
regulations. In reviewing the necessary documentation for Pine Tree, M s. M oore
noted, among other deficiencies, that M r. Delkhah’s bank statements indicated he
had regular deposits that HUD regulations required be counted as income to
calculate his subsidy. She reported her audit findings to Pine Tree, who was
1
KDHD has changed its name to Kansas Housing Resources Corp., Inc.
Reference to K DHD includes both names.
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responsible for obtaining evidence of tenant income and for calculating monthly
rental amounts.
In November 2002, Pine Tree increased M r. Delkhah’s rent from zero to
$196 per month. Following M s. M oore’s 2003 audit, Pine Tree requested that
M r. Delkhah produce various documents regarding his daughters’ citizenship and
status as students. On April 30, 2003, Pine Tree again increased M r. Delkhah’s
rent, this time to $402 per month, because he had not produced the requested
documents. M r. Delkhah objected and requested that Pine Tree reduce his rent to
zero, retroactive to November 2002. Pine Tree agreed to reduce the rent to zero,
but did not make it retroactive.
Neither M s. M oore nor KDHD requested documents directly from
Section-8 tenants, including M r. Delkhah. Rather, M s. M oore, in her capacity as
a KDHD compliance manager, informed Pine Tree of any deficiencies in its files
that made it noncompliant with H UD regulations. Pine Tree, not these
defendants, made the decisions to increase and decrease M r. Delkhah’s rent and to
refuse to make the reduction retroactive.
M r. Delkhah sued, alleging that KDHD and M s. M oore discriminated and
retaliated against him based on his national origin in violation of 42 U.S.C.
§§ 3604(b) and 3617, and the First and Fourteenth Amendments. As framed by
the district court, M r. Delkhah’s claims were based on his allegations that
defendants violated his rights by “(1) overstating his income for HUD purposes;
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(2) increasing his rent; (3) requiring him to submit a birth certificate and
citizenship papers; (4) repeatedly asking him for information; (5) denying him
interim [rent reductions]; and (6) denying him retroactive application of a lower
rent amount.” R. Doc. 114 at 7. M r. Delkhah also sued Pine Tree, its manager,
and its management-services company, as well as a man named Jim. Because he
settled or dismissed his claims against those defendants, this appeal concerns only
KDHD and M s. M oore.
On appeal, M r. Delkhah contends that the district court disregarded his
evidence and failed to consider all of the evidence, wrongly denied his motion to
strike defendants’ affidavits in support of their motion for summary judgment,
and wrongly denied his motion for sanctions. He also asserts that the district
judge should have recused.
Appellate Jurisdiction
W e first identify the district court’s rulings over which we have appellate
jurisdiction, concluding that the order denying M r. Delkhah’s request for
sanctions is not among them. M r. Delkhah filed a motion for sanctions against
defendants and their attorneys asserting that they had violated Fed. R. Civ. P. 11
by attaching to their pleadings a version of the HUD regulations that was not in
effect during the dates in question. The district court denied the motion, but not
until after M r. Delkhah had filed his notice of appeal from the summary-judgment
order. He did not file an additional or supplemental notice of appeal from the
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sanctions order. Therefore, we do not have jurisdiction over the “subsequent
separate and collateral order” denying sanctions. E.E.O.C. v. Wal-M art Stores,
Inc., 187 F.3d 1241, 1250 (10th Cir. 1999) (holding supplemental notice of appeal
was required to confer appellate jurisdiction over post-judgment order for
attorney fees). W e do have jurisdiction over the summary-judgment order
specified in the notice of appeal, which includes the ruling on M r. Delkhah’s
request to strike defendants’ affidavits, see M ontgomery v. City of Ardm ore,
365 F.3d 926, 934 (10th Cir. 2004) (“Having appealed from the judgment, the
appellant is free to attack any nonfinal order or ruling leading up to it.”)
(quotation omitted).
Standards of Review
“W e review the grant of summary judgment de novo, applying the same
standard the district court should apply under Fed. R. Civ. P. 56(c).” Steffey v.
Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (quotation omitted). For
dispositive issues on which the plaintiff will bear the burden of proof at trial, he
must “go beyond the pleadings and designate specific facts so as to make a
show ing sufficient to establish the existence of an element essential to [his] case
in order to survive summary judgment.” Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000) (quotation omitted). “[E]vidence, including testimony,
must be based on more than mere speculation, conjecture, or surmise.
Unsubstantiated allegations carry no probative weight in summary judgment
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proceedings.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.) (citation and
quotations omitted), cert. denied, 127 S. Ct. 131 (2006).
W e review for an abuse of discretion the district court’s order denying a
request to strike an affidavit in support of a summary-judgment motion. Lighton
v. Univ. of Utah, 209 F.3d 1213, 1227 (10th Cir. 2000). Finally, we review for
plain error a claim that the district judge was not impartial where, as here, no
motion to recuse was filed. United States v. Nickl, 427 F.3d 1286, 1297-98
(10th Cir. 2005) (“[T]his court employs a plain error standard to decide whether
the impartiality of the district court was so suspect as to require a new trial.”)
(footnote omitted).
M erits
M r. Delkhah disputes the district court’s order denying his motion to strike
defendants’ affidavits in support of their motion for summary judgment because
they were not signed when originally filed. The district court directed defendants
to file signed and notarized affidavits, which they did. M r. Delkhah then filed his
motion to strike because the affidavits were not signed and also because they
were not accurate or relevant. The district court found that the original affidavits
had been signed, but through an oversight, the signed versions were not filed. A s
to their relevance and accuracy, the court noted that M r. Delkhah had had an
opportunity to oppose them. Under the circumstances, we conclude that the
district court did not abuse its discretion in denying the motion to strike.
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W e next consider M r. Delkhah’s challenges to the order granting summary
judgment to defendants. The court first held that KDHD and M s. M oore, in her
official capacity, were entitled to Eleventh-Amendment immunity. The court then
addressed the claims against M s. M oore in her individual capacity, holding that
M r. Delkhah did not establish a prima facie case of disparate treatment under
42 U.S.C. § 3604(b) or retaliation under 42 U.S.C. § 3617. The court further held
that M r. Delkhah did not state a claim under the First or Fourteenth Amendments,
redressable under 42 U.S.C. § 1983, because M s. M oore did not act under color of
state law, M r. Delkhah produced no evidence that she treated others differently
and in fact so stipulated, and M r. Delkhah’s speech did not address matters of
public concern, but instead sought redress for private grievances. Finally, the
court ruled that M s. M oore was entitled to qualified immunity because
M r. Delkhah did not allege a constitutional violation.
W e have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
summary judgment substantially for the reasons stated in the district court’s
well-reasoned and thorough decision.
Lastly, we consider M r. Delkhah’s assertion that the district court should
have recused because she would naturally be biased in favor of defendants due to
their status as an agency and employee of the State of K ansas. M r. Delkhah’s
claim of judicial bias is apparently based solely on unfavorable rulings in the
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case. Adverse rulings cannot alone provide grounds for disqualification. M itchell
v. M aynard, 80 F.3d 1433, 1449 (10th Cir. 1996). Accordingly, the district judge
was not required to recuse.
Conclusion
M r. Delkhah’s motion to proceed on appeal in form a pauperis is granted.
The judgment of the district court is AFFIRMED.
Entered for the Court
W ade Brorby
Senior Circuit Judge
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