United States District Court, D. Nevada
ORDER ON MOTIONS FOR SUMMARY JUDGMENT (Dkt. ##29, 31)
ANDREW P. GORDON UNITED STATES DISTRICT JUDGE
Plaintiff Edward Zimbelman applied for housing from defendants Southern Nevada Regional Housing Authority and John Hill (the "Housing Authority"). When he filled out the Housing Authority's application, Zimbelman noted he was a registered sex offender. Although the Housing Authority does not permit registered sex offenders into its housing program, it admitted Zimbelman.
After he had lived in his home for seven months, the Housing Authority sent Zimbelman a notice that he was being terminated from the housing program because he was a registered sex offender. Zimbelman filed this suit claiming the Housing Authority cannot terminate him.
He now moves for summary judgment, arguing the Housing Authority waived or is estopped from using the termination clause in his lease, and that the due process clause also prevents the Housing Authority from terminating him. The Housing Authority cross-moves for summary judgment, arguing Zimbelman cannot prove his claims.
The Housing Authority did not waive and is not estopped from terminating Zimbelman. And to the extent Zimbelman has a due process right to challenge the Housing Authority's decision, he cannot show it was wrong to terminate him. I thus deny Zimbelman's motion and grant summary judgment in favor of the Housing Authority.
The parties generally agree on the facts. Zimbelman applied for a home with the Housing Authority. He disclosed in his application that he was a registered sex offender. Apparently, the Housing Authority did not read his application carefully, if at all; instead, it relied on a preliminary background check to accept Zimbelman into the program.
Zimbelman's lease states that the Housing Authority "'may terminate this lease agreement if. . . [a] household member... is found to have: a prior or current conviction for a sexual criminal offense that is subject to the Nevada Offender Registration Program." The lease further states that "failure of [the Housing Authority] to insist upon the strict performance by the Tenant of the terms . . . and conditions contained in this Lease . . . shall not constitute ... a waiver or relinquishment" of the Housing Authority's rights. The lease also states that a waiver of the Housing Authority's rights is not effective unless it is in writing and signed by the Housing Authority.
Zimbelman signed the lease and moved into his home, where he lived for about seven months. Later, Zimbelman received a notice from the Housing Authority telling him that he was being evicted because he was a registered sex offender. He was understandably surprised; after all, he had explicitly disclosed in his application that he was a sex offender. But the Housing Authority apparently realized Zimbelman was a registered sex offender only after it received Zimbelman's records from the Las Vegas Metropolitan Police Department.
The Housing Authority gave Zimbelman an informal hearing on his termination. After termination was upheld, the Housing Authority gave Zimbelman a formal hearing. The Housing Authority provided Zimbelman with a written denial shortly after, explaining he was being terminated based on 24 CFR 966, the Housing Authority's policies, and PIH Notice 2012-28 (which is a policy document created by the department of Housing and Urban Development ("HUD")).
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." For summary judgment purposes, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.
If the moving party demonstrates the absence of any genuine issue of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." It "must produce specific evidence, through affidavits or admissible discovery ...