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had violated the terms of her lease. Judge Davis entered an order on April 27, [*3] 1983,
terminating the tenancy and authorizing Northwind Place to evict Ms. Morris if she remained
on the premises after May 3, 1983.

Ms. Morris refused to leave, and on May 9, 1983, Nolan Payne, Northwind Place's attorney,

submitted a proposed writ of restitution to Judge Davis. Judge Davis signed the order, and

Process Server George Behrens, accompanied by Attorney Payne and a moving crew,

proceeded to the Northwind Place Apartments and began removing Ms. Morris' possessions. :
Ms. Morris told the men that she had filed post-judgment motions that stayed the writ of -
restitution, and she called Judge Davis to prove her point. It turned out that Ms. Morris had ‘
in fact filed numerous post-judgment motions but had failed to take all the steps necessary
to entitle her to a stay. Exercising his equity powers, Judge Davis ordered the writ stayed
over the telephone and scheduled a hearing for May 13, 1983.

After holding the hearing, Judge Davis denied all of Ms, Morris' motions and lifted the stay.
Process Server Behrens returned to Northwind Place to execute the writ three days later.

Ms. Morris then filed suit in the United States District Court for the Western District of
Michigan. An amended [*4] complaint named the following individuals and entities as
defendants: Amurcon Corp. (owner of Northwind Place Apartments); P.M. One Ltd. (manager
of Northwind Place); Thomas Lydeck, Kim O. WilKins, Marvin Larivee, Barton M. Berman, i
John J. Hayes, James W. Draper, and Fred Erb (Amurcon employees); Kimberly DeHaan, ;
John Boone, Forest Babcock and Andy Bisig (P.M. One employees); Nolan Payne (Northwind's

attorney); Judge Davis; Process Server Behrens; the Michigan State Housing Development

Authority and its former executive directors, Richard Helmbrecht, Howard Cross, and

Terrence Duvernay; the United States Department of Housing and Urban Development;

Secretary of Housing and Urban Development Sam Pierce, Jr., and his predecessors; the

United States Department of Health, Education, and Welfare; and Mary Matthews, Charles

Wallace, Margaret Conners, and Rose Jackson, tenants of Northwind Place.

Ms. Morris sought money damages for alleged violations of 42 U.S.C. §§ 1981, 1982, 1983,
1985, and 3604. The essence of her claims under the first four of these statutes is that she
was evicted because she is white and because Northwind's management did not approve of
her religious practices. The [*5] essence of her claim under § 3604 (the Fair Housing Act)
is that she was evicted while black tenants whose behavior was much worse than hers were
not. Her complaint also included numerous pendent tort claims and sought a declaration that
the Michigan Summary Proceedings Act, the Michigan District Court Rules, and Northwind's
rules regarding tenant conduct were unconstitutional.

On June 6, 1984, the district court found that Ms. Morris' claims against the Michigan State
Housing Development Authority and its three former directors were barred by the Eleventh
Amendment. The court subsequently dismissed the claims against the federal defendants
because Ms. Morris had failed to file an administrative complaint against them as required by
28 U.S.C. § 2675(a).

The district court dismissed the §§ 1981, 1982, and 1983 claims against Amurcon, P.M. One,
Kimberly DeHaan, John Boone, on December 26, 1985. The court found that the state
proceedings had established that the reason for the eviction was that Ms. Morris had violated
her lease; under the doctrine of collateral estoppel, she was held to be precluded from now
claiming that she had been evicted in violation of the First and Fourteenth [*6]
Amendments to the United States Constitution. Ms. Morris' pendent state claims against the
defendants covered by the December 26 order were dismissed without prejudice.

On January 30, 1989, the district court dismissed Ms. Morris' federal claims against Forest
Babcock, Barton Berman, Andy Bisig, James Draper, Fred Erb, John Hayes, Marvin Larivee,

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a private actor, they are not subject to constitutional scrutiny. As for the Michigan Summary
Proceedings Act and the rules of the Michigan District Court, 4N®¥a statute is
unconstitutionally overbroad if it prohibits constitutionally protected conduct. Village of
Hoffman Estates v. Flipside, 455 U.S. 489, 494 (1982). A statute is unconstitutionally vague
If a reasonably intelligent person would not know what conduct is prohibited. Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972). After careful review, we find no error in the district's
determination that the statutes at issue are not unconstitutionally overbroad or vague.

D

We turn, finally, to the district court's dismissal of the remainder of Ms. Morris' [¥*13]
complaint. With regard to Process Server Behrens and Attorney Payne, we find no error in
the court's determination that the doctrine of collateral estoppel and the failure to plead and
Prove inadequacy of post-deprivation remedies justified dismissal. When the district court
dismissed the claims against Behrens and Payne, however, it assumed that they were the
only remaining defendants -- and nowhere in the record have we been able to find an
evaluation of the claims against defendants, Conners, Jackson, Matthews, Wallace.

Accordingly, the judgement of the district court is AFFIRMED except insofar as it relates to
these four defendants. As to them the case is REMANDED to the district court for further
Proceedings not inconsistent with this opinion.

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Civil Rights Law > Contractual Relations & Housing > Fair Housing Rights > Leasing &

Sales

Public Health & Welfare Law > Housing & Public Buildings > Fair Housing

HN7¥ Private apartment's involvement with Section 8 program does not create a
sufficient nexus between the private actor and the government to transform
private action into state action.

Governments > Legislation > Overbreadth

Governments > Legislation > Vagueness

Real Property Law > Landlord & Tenant > Tenant's Remedies & Rights > Constitutional

Rights

HN8¥ A statute is unconstitutionally overbroad if it prohibits constitutionally protected
conduct. A statute is unconstitutionally vague if a reasonably intelligent person
would not know what conduct is prohibited.

JUDGES: Martin and Nelson, Circuit Judges, and James H. Jarvis, District Court Judge.

unknown The Honorable James H. Jarvis of the Eastern District of Tennessee sitting by
designation.

OPINION BY: PER CURIAM

OPINION

JoAn Morris, acting pro se, appeals the dismissal of a complaint she filed in a United States
District Court against the Secretary of the U.S. Department of Housing and Urban
Development and numerous other defendants. Finding Ms. Morris’ assignments of error to be
without merit, we shall affirm the judgment of the district court with regard to all but four
defendants. The district court did not explain why it was dismissing Ms. Morris' claims against
four of her fellow tenants, Margaret Conners, Rose Jackson, Mary Matthews, and Charles
Wallace, [*2] and we shall remand the case for further proceeding with respect to those
defendants only.

I

On August 28, 1982, Ms. Morris became a tenant in a privately-owned housing complex,
Northwind Place Apartments, located in Kalamazoo, Michigan. The Department of Housing
and Urban Development paid part of her rent under its "Section 8" program. The particular
Program in which Ms. Morris participated was administered by the Michigan State Housing
Development Authority.

On January 28, 1983, Northwind notified Ms. Morris that she was in violation of her lease
and requested that she vacate the premises. Ms. Morris refused to leave voluntarily, and
Northwind Place brought an eviction action against her in the District Court for the City of
Kalamazoo. The suit was instituted under Michigan's Summary Proceedings Act, Mich. Comp.
Laws § 600.5701 et seq.

After a bench trial, Judge Arvin Davis found that Ms. Morris had willfully or negligently

caused a serious and continuing health hazard to exist on the premises or had caused
extensive or continuing physical injury to the premises. He also concluded that Ms. Morris

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Thomas Lydeck, and Kim Wilkins for failure to state a claim on which relief could be granted.
Ms. Morris' pendent state claims against these nine defendants were likewise dismissed
without prejudice. On the same day, the district court ruled that the Michigan Summary
Proceedings Act and the Michigan District court rules were not unconstitutionally vague or
overbroad and that Northwind Place's rules were those of a private actor and, therefore, not
subject to the dictates of the Constitution. On March 20, 1989, the district court denied Ms.
Morris' motion to reconsider its decision.

The district court dismissed the remainder of the complaint on September 12, 1990. i
Dismissal of Ms. Morris' due process claim against Process Server Behrens was required, the
court concluded, because Ms. Morris had failed to plead and prove inadequacy of

Michigan's [*7] post-deprivation remedies and because the claim was barred by collateral
estoppel. The district court found that the claims against Attorney Payne were also barred by
collateral estoppel. The state law claims against Behrens and Payne were dismissed without
prejudice. The district court did not specifically address the claims against Mary Matthews,
Charles Wallace, Margaret Conners, and Rose Jackson. 1

FOOTNOTES a

1 Ms. Morris reached a settlement with Judge Davis. a

Ms. Morris filed her notice of appeal on October 11, 1990, appealing from (1) the district
court's June 6, 1984 order dismissing the claims against the Michigan defendants; (2) the
district court's December 26, 1985 order, dismissing the claims against Amurcon, P.M. One,
Kimberly DeHaan, and John Boone; (3) the district court's March 20, 1989 order denying
reconsideration of the January 30, 1989 order; and (4) the district court's September 12,
1990 order, dismissing the balance of the case.

I
A

We hold that the district court properly dismissed the claims against [*8] the Michigan
State Housing Development Authority on Eleventh Amendment grounds. ""4%The sovereign
immunity doctrine, of which the Eleventh Amendment is an affirmation, prevents a federal
court from ordering a state to pay damages to compensate for past injuries. Edelman v.
Jordan, 415 U.S, 651 (1974). A suit against a state agency is a suit against the state for
purposes of the Eleventh Amendment. See Florida Dept. of Health & Rehabilitative Services v.
Florida Nursing Home Assn., 450 U.S. 147 (1981).

Ms. Morris' claims against the former directors of the Authority are likewise barred by the
Eleventh Amendment. The "%?%claims against these officials are, in essence, claims against
the state. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945).

Nothing in Mich. Comp. Laws § 125.1422(a) can be construed as a waiver of Michigan's
Eleventh Amendment immunity, see Edelman, 415 U.S. at 673, and nothing in the Fair
Housing Act, 42 U.S.C. § 3601 et seq., can be construed as a congressional abrogation of
Michigan's Eleventh Amendment immunity. See Atascadero State Hospital v. Scanlon, 473
U.S, 234, 242 (1985). [*9]

B

The district court also properly dismissed Ms. Morris’ claims against Amurcon, P.M. One,

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Kimberly DeHaan, and John Boone. “3¥42 U.S.C. § 1981 prohibits racial discrimination in
the making and enforcing of contracts. Ms. Morris has not alleged discrimination as far as her
entering into a contract with Northwind is concerned, and the Michigan court's finding that
she violated the terms of her lease precludes her from succeeding on the charge that she
was discriminated against with respect to the enforcement of her contract.

Barnes v. McDowell, 848 F.2d 725, 738 (6th Cir. 1988), cert. denied, 488 U.S. 1007 (1989),
teaches that ""#federal courts must give a state court judgment the same preclusive effect
that the judgment would be given by the state in which it was rendered. In Michigan, a party
may not relitigate an issue that has already been decided in an prior proceeding. Topps-
Toeller, Inc. v. City of Lansing, 47 Mich. App. 720, 209 N.W.2d 843, 847 (Mich. Ct. App.
1973). Here the Michigan court found that Ms. Morris was evicted because she violated the
lease; she may not relitigate that issue.

The decision of the [*10] Michigan court also precludes Ms. Morris from prevailing on her §
1982 claim. #8>¥Section 1982 prohibits racial discrimination in the sale or rental of
Property. Given the findings of the Michigan court, it is clear that no violation of § 1982
occurred.

HN6FTo prevail on her § 1983 claims, Ms. Morris must show, among other things, that she
was deprived a right by someone acting under color of state law. Northwind is privately
owned, and Ms, Morris' complaint is devoid of any hint that either the State of Michigan or
the federal government was involved in Northwind's day-to-day operation. See Miller v.
Hartwood Apartments, Ltd, 689 F.2d 1239 (5th Cir. 1982) #§7¥(private apartment's
involvement with Section 8 program does not create a sufficient nexus between the private
actor and the government to transform private action into state action). Because Northwind
is a private actor, the district court properly dismissed Ms. Morris' § 1983 claims.

The district court also properly dismissed Morris' Fair Housing Act claims. Ms. Morris cannot
recover under § 3604 because this section simply prohibits discrimination in the sale or
rental of housing, and Ms. Morris has not alleged that [*11] she was discriminated against
when she signed her lease or that the terms of her lease were less advantageous than those
offered other tenants. The findings of the Michigan District Court preclude Ms. Morris from
relitigating the question of whether her eviction was discriminatory.

Cc

The assignments of error regarding the district court's March 20, 1990, denial of the motion
to reconsider the order of January 30, 1989, are without merit. The 1989 order denied Ms.
Morris' motion to have the Michigan Summary Proceedings Act, the Michigan District Court
Rules, and Northwind's tenant code declared unconstitutional and dismissed Morris! complaint
against defendants Babcock Berman, Bisig, Draper, Erb, Hayes, Larivee, Lydeck and Wilkins
(all employees of either Amurcon or P.M One). With one exception, Ms. Morris asserted the
same claims against these nine that she asserted against defendants Amurcon, P.M. One,
DeHaan, and Boone; we reject her assignments of error as to the nine defendants for the
same reasons that we rejected the claims against Amurcon, P.M. One, DeHaan, and Boone.

The claims against the nine defendants also included a charge that they conspired to violate
her civil rights [*12] in violation of 42 U.S.C. § 1985. We affirm the dismissal of the §
1985 allegation for the reasons stated in the district court's order of January 30, 1989. We
have reviewed Ms. Morris' challenge to the other apsects of this order and find them to be
without merit.

We also agree with the district court's determination that the statutes and rules are not
unconstitutionally vague or overbroad. Because Northwind's tenant rules are promulgated by

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1991 U.S. App. LEXIS 22135, *

JO AN MORRIS, Plaintiff-Appellant, v. KIMBERLY DEHAAN; AMURCON INCORPORATE; P.M.
ONE MANAGEMENT, INC.; ANDY BABCOCK; NOLAN PAYNE; JOHN BOONE; MARY
MATTHEWS; SAM PIERCE, JR., SEC. OF H.U.D., STATE OF MICHIGAN HOUSING AUTHORITY;
RICHARD HELMBRECH; HOWARD CROSS; TERRENCE CUVIRNAY; HOUSING DIRECTORS
PAST AND PRESENT; UNITED STATES DEPARTMENT OF H.U.D.; CHARLES WALLACE;
MARGARET CONNERS; ROSE JACKSON; DEPT. OF HEALTH EDUCATION AND WELFARE (party
in interest); PROCESS SERVER JOHN DOE; POLICE OFFICER JOHN DOE; AMURCON, INC.
WITH DEFENDANTS FRED A. ERB; KIM O. WILKINS; JAMES W. DRAPER; MARVIN LARIVEE;
BARTON M. BERMAN; JOHN J. HAYES; THOMAS S. LYDECK dock; ANDY BISIG; FOREST 4

BABCOCK; JUDGE ARVIN DAVIS, Defendants-Appellees

No. 90-2190
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

1991 U.S. App. LEXIS 22135

September 12, 1991, Filed :

NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE
24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING INA
PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON
OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS
DECISION IS REPRODUCED.

SUBSEQUENT HISTORY: Reported as Table Case at 944 F.2d 905, 1991 U.S. App. LEXIS
28067.

PRIOR HISTORY: On Appeal from the United States District Court for the Western District
of Michigan; District No. 84-00031; Gibson, District Judge.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff tenant sought review of the judgment from the United
States District Court for the Western District of Michigan, which dismissed her complaint
for violations of 42 U.S.C.S. §§ 1981, 1982, 1983, 1985, 3604, against defendant
landlord.

OVERVIEW: The tenant filed a complaint for violations of 42 U.S.C.S. §§ 1981, 1982,
1983, 1985, 3604, against the landlord. The district court dismissed her complaint. On
appeal, the tenant asserted that the landlord evicted her based on her race and religious
practices. The court affirmed the judgment dismissing the tenant's discrimination and Fair
Housing Act claims. The court held that the tenant's discrimination claims and Fair
Housing Act claims against the landlord were precluded under the doctrine of collateral
estoppel. The tenant was precluded from claiming that she was discriminated against with
respect to the enforcement of her lease, or relitigating the question of whether her
eviction was discriminatory based on the state court's finding that she violated the terms
of her lease. Additionally, the landlord's tenant rules were promulgated by a private actor,
and were not subject to constitutional scrutiny where the tenant failed to allege that
either the state or the federal government was involved in the landlord's day-to-day
operation.

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OUTCOME: The court affirmed the judgment dismissing the tenant's discrimination and
Fair Housing Act claims.

CORE TERMS: housing, tenant, lease, collateral estoppel, properly dismissed,

apartment's, evicted, Fair Housing Act, unconstitutionally vague, eviction, immunity, :
pendent, assignments of error, state claims, unconstitutionally overbroad, discriminated, +
relitigate, overbroad, rental, writ of restitution, post-deprivation, post-judgment,

reconsider, inadequacy, remainder

LEXISNEXIS(R) HEADNOTES
Administrative Law > Sovereign Immunity
Civil Procedure > Federal & State Interrelationships > Sovereign Immunity > General
Overview |
Governments > State & Territorial Governments > Claims By & Against i
HN1¥ The sovereign immunity doctrine, of which the Eleventh Amendment is an
affirmation, prevents a federal court from ordering a state to pay damages to
compensate for past injuries. A suit against a state agency is a suit against the i
state for purposes of the Eleventh Amendment. :

Governments > State & Territorial Governments > Claims By & Against
HN2% Claims against officials of the Michigan State Housing Development Authority are,
in essence, claims against the state.

Civil Rights Law > Contractual Relations & Housing > Equal Rights Under the Law (sec.
1981) > Protected Parties

Civil Rights Law > Private Discrimination

Labor & Employment Law > Discrimination > Public Contracts > General Overview

HN3%42 U.S.C.S. § 1981 prohibits racial discrimination in the making and enforcing of
contracts.

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral

Estoppel

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Full Faith & Credit >

General Overview

HN4% Federal courts must give a state court judgment the same preclusive effect that
the judgment would be given by the state in which it was rendered. In Michigan,
a party may not relitigate an issue that has already been decided in an prior
Proceeding.

Civil Rights Law > Contractual Relations & Housing > Property Rights (sec. 1982) > +
Protected Parties

Civil Rights Law > Contractual Relations & Housing > Property Rights (sec. 1982) >

Protected Rights

Public Health & Welfare Law > Housing & Public Buildings > Fair Housing

HN5¥ 42 U.S.C.S. § 1982 prohibits racial discrimination in the sale or rental of

Property.
Civil Rights Law > Section 1983 Actions > Scope

HN6%To prevail on her 42 U.S.C.S. § 1983 claims, plaintiff must show, among other
things, that she was deprived a right by someone acting under color of state law.

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