Leonard Price v. Housing Auth of New Orleans, Et A , 453 F. App'x 446 ( 2011 )

Case: 11-30359 Document: 00511680363 Page: 1 Date Filed: 11/30/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2011
No. 11-30359 Lyle W. Cayce
Summary Calendar Clerk
LEONARD M. PRICE,
Plaintiff–Appellant
v.
HOUSING AUTHORITY OF NEW ORLEANS; KAREN C. TURNER, in her
capacity as Executive Director for Housing Authority of New Orleans;
DESIRE AREA RESIDENTS COUNCIL; KATHLEEN MATTHEWS, in her
capacity as president for Desire Area Residents Council and in her individual
capacity; BONNIE ROGERS, also known as Bonnie Peters, in her capacity as
vice president for Desire Area Residents Council and in her individual
capacity; MARGARET MCMILLAN, in her capacity as treasurer for Desire
Area Residents Council and in her individual capacity,
Defendants–Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-4257
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-30359
Leonard Price, the Appellant, proceeding pro se and in forma pauperis
filed suit against the Housing Authority of New Orleans (“HANO”), the Desire
Area Residents Council (“DARC”), and members of both organizations
(collectively the “Appellees”). He claims that the Appellees failed to provide him
with economic opportunities allegedly guaranteed to him through a public
housing redevelopment plan. The district court granted summary judgment to
the Appellees. We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the district court, Price pursued a bevy of claims arising out of a
memorandum of understanding (“MOU”) between HANO and DARC. The MOU
states, in relevant part,
The Authority [HANO] will train residents for all types of economic
opportunities, including but not limited to management,
entrepreneurship, construction and maintenance. The Authority
will hire residents during the planning, reconstruction and
re-occupancy of Desire LA 1-14. The DARC will participate with the
identification and selection of the Desire residents in hiring
programs. The Authority will consider DARC or Desire Resident[s]
for available contracts for any and all phases of planning,
reconstruction, evaluation and monitoring of Desire, LA 1-14.
Price claimed under 42 U.S.C. § 1983 that he was denied due process because
the Appellees (1) failed to provide him any job training or assistance, (2) failed
to allow him to participate in the decisionmaking process regarding the
redevelopment, and (3) failed to give adequate notice of their meetings.
Additionally, Price alleged an (4) equal protection violation because of the hiring
practices of DARC and (5) a Louisiana state-law claim seeking to enforce the
MOU as a third-party beneficiary thereof.
On appeal, however, due to the poor briefing of his newly-obtained counsel,
Price has waived nearly all of his claims for error. In his brief to this court, Price
sets out four “Assignment[s] of Error,” but the brief never puts forth any
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argument on these points; therefore, they are waived. Fed. R. App. P.
28(a)(9)(A); United States v. Jimenez, 509 F.3d 682, 695 (5th Cir. 2007).
Moreover, of the issues that were briefed, one is “A Summary Judgment
Fradulently Obtained Should be Annulled on Appeal.” In this section, the
argument seems to be that the Appellees committed a fraud on the district court
that ought to be corrected under Federal Rule of Civil Procedure 60(b)(3). The
only authority that Price’s counsel cites is the corresponding Louisiana rule, see
La. Code Civ. Proc. art. 2004, and a case from this court interpreting that
provision.1 Such an accusation of fraud without any factual or legal support is
also deemed waived. Fed. R. App. P. 28(a)(9)(A); Jimenez, 509 F.3d at 695.
We do find two claims sufficiently briefed so as to preserve them for our
review: (1) the district court erred in not finding a property interest for the
purposes of Price’s due process claim and (2) the district court erred in finding
that Price was not a third-party beneficiary to the MOU under Louisiana law.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 124 (5th Cir. 2011). Summary judgment is appropriate where the
movant shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Fed. R. Civ. P. 56(a)). In reviewing the
record, all facts and inferences are construed in the light most favorable to the
non-movant. Id.1
It is unclear from the citation, however, to what Price’s counsel is directing this court.
Her citation is to “St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425 ( 5th Cir. 2000), citing
Chiarella v. U. S. , 100 S. Ct. 1108 [sic].” Nowhere in our opinion in St. Paul Mercury
Insurance do we cite to Chiarella. This is not the only sloppy citation in Price’s counsel’s
confusing brief. Earlier, she appears to quote language from Reese v. Miami-Dade Cnty., 210
F. Supp. 2d 1324 (S.D. Fla. 2002), which does not appear in that opinion.
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III. DISCUSSION
A. Section 1983 Due Process Claim
Price argues that 24 C.F.R. pt. 135.12 gave him a property interest
protected by the Due Process Clause. He claims that the Appellees failed to
provide him job training or assistance.
To state a claim under § 1983, [a] plaintiff[] must allege two
elements: first, that they were deprived of a right or interest secured
by the Constitution and laws of the United States, and second, that
the deprivation occurred under color of state law. . . . [I]n § 1983
suits alleging a violation of the Due Process Clause of the
Fourteenth Amendment, . . . [p]laintiffs must (1) assert a protected
“liberty or property” interest and (2) show that they were deprived
of that interest under color of state law.
Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995) (citations
omitted). “In order for a person to have a property interest within the ambit of
the Fourteenth Amendment, he ‘must have more than an abstract need or desire
for it. He must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.’” Blackburn v. City of Marshall, 42
F.3d 925, 936 (5th Cir. 1995) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972)).
2
Part 135.1 states, in relevant part,
The purpose of section 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. [§] 1701u) (section 3) is to ensure that employment and other economic
opportunities generated by certain [Department of Housing and Urban
Development] financial assistance shall, to the greatest extent feasible, and
consistent with existing Federal, State and local laws and regulations, be
directed to low- and very low-income persons, particularly those who are
recipients of government assistance for housing, and to business concerns which
provide economic opportunities to low- and very low-income persons.
24 C.F.R. 135.1(a).
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Part 135.1 states the purpose behind the enactment of 12 U.S.C. § 1701u.3
The language of part 135.1, however, does not speak to any particular
entitlement, but rather to the goals of Congress in enacting the Housing and
Urban Development Act of 1968. The “vague and amorphous” provisions of part
135.1 is insufficient to support a finding that Price had a property right to
anything. Anderson v. Jackson, 556 F.3d 351, 356 (5th Cir. 2009) (internal
quotation marks omitted); see also Wilson v. United States Dep’t of Agric., 991
F.2d 1211, 1216 (5th Cir. 1993) (“The mere fact that a government program
exists does not give a person a property interest in participating in the program.”
(internal quotation marks omitted)).
B. Third-Party Beneficiary Claim
Price further argues that he is entitled to enforce the MOU because it
includes a stipulation pour autrui; that is, he is a third-party beneficiary. See
La. Civ. Code art. 1978. The Louisiana Supreme Court4 has laid out a test to
determine if a contract intends to create a stipulation pour autrui: “1) the
stipulation for a third party is manifestly clear; 2) there is certainty as to the
3
Section 1701u states, in relevant part,
In other programs that provide housing and community development
assistance, the Secretary shall ensure that, to the greatest extent feasible, and
consistent with existing Federal, State, and local laws and regulations,
opportunities for training and employment arising in connection with a housing
rehabilitation (including reduction and abatement of lead-based paint hazards),
housing construction, or other public construction project are given to low- and
very low-income persons residing within the metropolitan area (or
nonmetropolitan county) in which the project is located.
12 U.S.C. § 1701u(c)(2)(A).
4
Since federal jurisdiction over this claim arises out of state law, we apply the
substantive law of the forum state. First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181
(5th Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938)). “To determine
Louisiana law, we look to the final decisions of the Louisiana Supreme Court.” Bradley v.
Allstate Ins. Co., 620 F.3d 509, 516 n.2 (5th Cir. 2010).
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benefit provided the third party; and 3) the benefit is not a mere incident of the
contract between the promisor and the promisee. Joseph v. Hosp. Serv. Dist. No.
2 of Parish of St. Mary, 939 So.2d 1206, 1211 (La. 2006). Neither the benefit nor
the beneficiary is manifestly clear in this instance.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to the Appellees.
AFFIRMED.
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