855-8003. [Here reported: (Accession No. 1009806) 42,180A Complaint (34pp.); 42,180B Defs' Memo in Support of Dismissal (101pp.); 42,180C Defs' Memo in Support of Dismissal (9pp.); 42,180D Plfs' Memo in Opp'n to Motions to Dismiss (68pp.); 42,180E Defs' Reply Memo in Further Support of Dismissal (51pp.); 42,180F Def's Reply Memo in Support of Dismissal (14pp.).]

This suit seeks preliminary and permanent injunctions directing defendants, the Secretary and regional administrator of HUD and New York City officials, to withdraw their approval of the Urban Development Action Grant requested by the City of New York to assist in the construction of the Atlantic Terminal Project in Brooklyn. Plaintiffs, who are low- and moderate-income residents of the area surrounding the project, allege that HUD's unconditional approval of the grant for the project has violated their rights under the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601 et seq., and the Housing and Community Development Act, 42 U.S.C. §§ 5301 et seq., to continue to live in neighborhoods that are integrated racially, ethnically, and economically. Plaintiffs challenge HUD's approval of the grant for the project because HUD did not adequately consider the potential impact of the proposed program on low-income and moderate-income residents in plaintiffs' neighborhoods. Plaintiffs allege that, if HUD had analyzed the relevant data, it would have discovered that the program will have an adverse impact on low-income residents and black, Hispanic, and other minority residents, forcing low-income residents from their homes and neighborhoods and thus causing the neighborhoods to become racially and ethnically segregated. Plaintiffs contend that HUD further violated federal statutes by approving the grant without requiring defendant city officials to mitigate any adverse impact the proposed program will have on low- and moderate-income residents and minority residents in plaintiffs' neighborhoods. Plaintiffs seek preliminary and permanent injunctions directing defendants to withhold approval of the grant for the program until such time as HUD has considered all the facts. Federal defendants have filed a motion to dismiss plaintiffs' complaint, arguing that plaintiffs lack standing to challenge HUD's actions, that the United States has not waived sovereign immunity as to the claims asserted, and that plaintiffs have no right of action against them outside the APA. State defendants also seek dismissal, arguing that plaintiffs have suffered no injury attributable to defendants' actions.

Section 502 Borrower Alleges That FmHA's 35 Percent of Income Regulations for Moratorium Relief Are Invalid

42,191. Witmer v. Block, No. 86-0783 (M.D. Pa. filed Feb. 26, 1987). Plaintiff represented by Richard Fishman, Keystone Legal Services, 477 E. Beaver Ave., State College, PA 16801, (814) 238-4958; Stuart Cilo, Gideon Anders. [Here reported: (Accession No. 1009816) 42,191A Complaint (13pp.); 42,191B Plf's Brief in Support of Summary Judgment (55pp.); 42,191C Plf's Brief in Opp'n to Dismissal (13pp.).]

Plaintiff, who received a Section 502 loan for the purchase of her residence, brings this action to challenge FmHA's moratorium relief regulations. Plaintiff alleges that,

subsequent to receiving the loan, she experienced periods of unemployment and a loss and unavailability of income due to marital and medical problems. This loss of income resulted in her becoming delinquent in her loan payments to the FmHA. She wrote FmHA, requesting moratorium relief and a meeting to resolve the delinquency. At the meeting, plaintiff stated that she had a new job and presented a letter from her son indicating that he and plaintiff's other adult children would begin giving their mother $151 per month for payments on her loan if FmHA granted her moratorium relief. After the meeting, FmHA denied her request for relief finding that the income available to her was greater than 35 percent of the total of the principle, interest, taxes, and insurance on her residence. Plaintiff maintains that, during the period that her loan became delinquent, her standard of living was duly impaired within the meaning of 7 C.FR. § 1951.313(a)(2), due to circumstances beyond her control, and that she was unable to pay normal living expenses and scheduled loan payments to FmHA. However, she claims that she presented sufficient evidence throughout the interviews with FmHA that she can now repay the loan because of her children's support and because of her new job. Therefore, plaintiff alleges that FmHA's denial of her request for moratorium relief is arbitrary, capricious, an abuse of discretion, and not in accordance with her statutory right under 42 U.S.C. § 1475 to moratorium relief when its prerequisites are met. She also contends that, although the statute contemplates an individualized analysis of the borrowers' circumstances, the 35-percent test does not do this on its face and as applied in this case; that the 35-percent test is irrational in that people who meet the test may not have an unduly impaired standard of living, while those who do not meet the test do have an unduly impaired standard of living; and that the test is inconsistent with the administration of other FmHA programs. Counsel notes that this suit challenges the old moratorium regulations as well as the new ones that became effective February 4, 1987, and that involve a 30-percent income reduction rule.

Consent Decree Entered in Challenge to Unlawful
Discrimination in Administration of
Section 8 Complex

42,200. Blue Water Garden Tenants' Ass'n v. Orthman, No. 2-84-147 (N.D. Tex. Jan. 9, 1987). Plaintiffs represented by Viviana Patino, Texas Rural Legal Aid, 1406 W. Highway 60, Hereford, TX 79045, (806) 364-3961; Juanita Jeys. [Here reported: (Accession No. 1009824) 42,200A Complaint (15pp.); 42,200B Consent Decree-Final Order (29pp.).]

A consent decree has been entered against private defendants in this class action in which plaintiff tenants alleged discrimination based on race, sex, and handicap and numerous procedural shortcomings in the operation of a Section 8 housing complex. Named plaintiffs are minority and/or disabled residents of federally subsidized public housing and members of a tenants' association, who are receiving or eligible for rent subsidies under the Section 8 program. Plaintiffs alleged that defendant apartment managers and management association discriminated against plaintiffs and members of their class in apartment advertising, assignments, transfers, and eviction practices, and in apartment maintenance, repair, and extermination,

49

Report of the FHA Task Force

The FHA Task Force, created by the Secretary of HUD in March 1986, has issued a report on the feasibility of a sale of the FHA and on other proposals for expanding the role of the private sector in providing mortgage insurance. The Task Force concludes that an outright sale of the FHA would be unlikely to attract buyers at a price the government would find adequate, or to satisfy other desirable sale considerations. If the agency were to be sold, the study explains, it might be difficult for the private sector to maintain the FHA's present level of assistance to lower income buyers. In lieu of a sale of FHA, the Task Force recommends that FHA become more aware of who is served by its programs and more carefully select appropriate recipients for federal assistance. Further, it is recommended that FHA attempt to reduce some of its competitive advantage over private insurers by, e.g., requiring higher down payments and eliminating loan assumability. Finally, the Task Force found that FHA should devote additional attention to the idea of converting FHA into a reinsurer of mortgages.

Report of the FHA Task Force is available from the Government National Mortgage Association, 451 Seventh St., SW, Washington, DC 20410, (202) 755-5593.

based upon race, nationality, sex, and/or handicap. Plaintiffs sought declaratory and injunctive relief, asserting that defendants had violated the Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq.; the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982; and the Rehabilitation Services Act, 29 U.S.C. §§ 701 et seq., in denying equal housing opportunities, for the purpose of maintaining racially and ethnically segregated housing. The consent decree cures past discrimination and remedies conditions by establishing a program to integrate the apartment complex by targeting certain buildings so that no one building contains more than 70 percent of the majority group; by providing procedures for recordkeeping on race, ethnicity, and handicap; by granting plaintiffs' counsel the right to inspect quarterly; and by requiring that defendants make all necessary repairs, paint, exterminate, and maintain all units. The decree provides for recognition of the tenants' association and prohibits any retaliation against its members. Plaintiffs are also awarded $2,000 in damages and $8,000 in costs and attorney fees.

Settlement Reached in Texas Public Housing Discrimination Suit

42,158. Walker v. HUD, No. CA3-85-1210-R (N.D. Tex. Dec. 12, 1986). Plaintiffs represented by Kenneth Schorr, North Central Texas Legal Services Foundation, 3108 Live Oak St., Dallas, TX 75204, (214) 824-6690; Elizabeth Julian, Michael Daniel. [Here reported: (Accession No. 1009795) 42,158C 1st Amended Complaint (5pp.); 42,158D DHA's Answer to 1st Amended Complaint (4pp.); 42,158E HUD's Answer to 1st

Amended Complaint (3pp.); 42,158F Plfs' Memo in Support of Class Cert. (81pp.); 42,158K Order Dismissing Def City from Lawsuit (2pp.); 42,158L Interoffice Memo & Legal Opinion (4pp.); 42,158R HUD's Answer to 2nd Amended Complaint (15pp.); 42,158S HUD's Memo in Opp'n to Class Cert. (55pp.); 42,158T Plfs' Memo in Support of Prelim. Relief (23pp.); 42,158U Plfs' Reply Brief on Prelim. Relief (15pp.); 42,158V DHA's Memo in Opp'n to Class Cert. (44pp.); 42,158X HUD's Memo in Support of Judgment on the Pleadings (61pp.); 42,158Z-1 DHA's Response to Plfs' Reply Brief on Prelim. Relief (12pp.); 42,158Z-2 Plfs' Response to HUD's Motion for Judgment on the Pleadings (17pp.); 42,158Z-9 Agreed Prelim. Inj. (4pp.); 42,158Z-10 Consent Decree (39pp.); 42,158Z-11 Order & Notice of Proposed Settlement (5pp.); 42,158Z-12 Plfs' Memo in Support of Approval of Consent Decree (52pp.); 42,158Z-13 HUD's Memo in Support of Approval of Consent Decree (21pp.); 42,158Z-14 Plfs' Proposed Findings of Fact & Conclusions of Law Approving Proposed Consent Decree (22pp.).] The district court has approved a settlement agreement in this class action in which seven individual black public housing tenants challenged the segregated system of public and publicly assisted housing in Dallas, Texas. Defendants are the Dallas Housing Authority (DHA), HUD, and a number of suburban municipalities. The court issued an agreed preliminary injunction permitting DHA Section 8 certificate holders to use their certificates in cities other than Dallas within Dallas county, and the suburban municipalities were dismissed from the lawsuit by agreement. After a year and a half of discovery, the remaining parties entered into a court-approved agreement, which provides a comprehensive array of remedies for defendants' long-standing discriminatory policies. These remedies include access of Section 8 certificate holders to the suburbs, establishment of a housing mobility division within DHA to locate Section 8 qualifying units in non-racially impacted areas, utilization of the 120-percent fair market rent exception to increase the stock of available housing, and effective housing code enforcement for Section 8 units. The agreement also provides that low-rent public housing (LRPH) tenants may have the option of moving to a modernized LRPH unit or to Section 8 housing, may be eligible for relocation and moving expenses, and may have the option of staying in LRPH while looking for an appropriate Section 8 unit. In addition, defendants agreed not to discriminate in the tenant selection process in the future and not to demolish any LRPH units except under agreement, with one-for-one replacement by Section 8 certificates or vouchers. With regard to elderly public housing residents, the agreement provides (1) an option to move from a family project to an elderly project, from a minority to a non-minority elderly project, or to a Section 8 unit; (2) relocation and moving expenses; and (3) the option to stay in LRPH while looking for an appropriate Section 8 unit. Finally, the agreement provides for demolition of approximately 1,300 uninhabitable and vacant units in the virtually all-minority 3,500 unit West Dallas Housing Park. These units will be replaced by 450 Section 8 certificates, 450 Section 8 vouchers, and 100 LRPH three- and fourbedroom units. HUD will provide funding for full modernization of 900 of the remaining units. Demolition of additional units in West Dallas Housing Park can only occur upon one-for-one replacement of demolished units by Section 8 certificates or vouchers, or by replacement LRPH units.

JUVENILES

Arkansas Juvenile Justice System Held Unconstitutional

42,183. Walker v. Arkansas Dep't of Human Serv., 722 S.W.2d 558 (Ark. 1987). Appellants represented by Griffin Stockley, Central Arkansas Legal Services, 209 W. Capitol Ave., Little Rock, AR 72201, (501) 376-3423. [Here reported: (Accession No. 1009809) 42,183A Opinion (8pp.).]

Finding that jurisdiction over minors is a matter of state rather than local concern, the Arkansas Supreme Court has held that the state's Juvenile Code's placement of jurisdiction of juvenile matters in county courts is unconstitutional. In so ruling, the court noted that the Arkansas Constitution specifically provides that the judicial power of the state shall be vested in one supreme court; circuit, county, and probate courts; and in justices of the peace, and allows the state legislature to establish certain other courts such as municipal and chancery courts. However, the court found that the constitution nowhere provides for the creation of a juvenile court, nor does it permit the legislature to establish one. Although the state legislature has passed extensive enactments to attempt to ensure that the Gault requirements are met in juvenile courts, the court found that county courts do not possess the same judicial safeguards as other state courts and have therefore been unable to ensure the proper disposition of juvenile delinquency cases. This finding, coupled with the fact that funding for juvenile problems stems from a statewide and nationwide network of agencies, caused the court to conclude that juvenile matters cannot be considered an area of merely local concern and cannot be left in the jurisdiction of the county courts. Counsel notes that, after this decision, the state legislature vested jurisdiction over juvenile matters in the state probate and circuit courts.

LANDLORD/TENANT

Sanction Imposed on Landlord and Attorney for
Incorrect Allegation That Notice to Quit
Was Waived

42,254. Brown v. Sweeting, No. 14571-86 (D.C. Super. Ct. Jan. 7, 1987). [Here reported: (Accession No. 1009846) 42,254A Opinion (3pp.).]

The court has imposed a sanction on plaintiff landlord and his attorney for their failure to reasonably investigate the factual basis for a complaint for possession of real estate based on defendant tenant's alleged default in payment of rent. The landlord originally filed the action pro se and checked the box on the form complaint verifying that service of a notice to quit has been specifically waived in writing. A few months later, the attorney entered an appearance on behalf of plaintiff and signed the same form complaint. A guardian ad litem appointed on behalf of defendant sought dismissal, arguing that the lease specifically requires written notice. Plaintiff's counsel admitted at oral argument that he made no inquiry regarding the lease

until the guardian filed the motion to dismiss. The court found that both plaintiff and his attorney had violated the rule requiring that the signer of pleadings make a reasonable inquiry into the facts involved, and noted that neither plaintiff nor his counsel took the minimal time necessary to examine the lease to ascertain whether notice to quit was required. In so ruling, the court concluded that, as a result of plaintiff's inactions, an action was initiated in blatant contravention of the terms of the lease and in which a false factual representation was made to the court. Thus the court ruled that the guardian be compensated for his services in defending the improperly filed lawsuit and ordered plaintiff and his counsel to pay $375 each.

New Hampshire Court Finds It Has No Authority to Stop Imposition of Large Rent Increases on Low-Income Tenants

41,412. Buckman v. Schlesinger, No. 86-E-350 (N.H. Super. Ct., Rockingham County, Nov. 21, 1986). Petitioners represented by Victoria Pulos, Alice Schierberl, New Hampshire Legal Assistance, P.O. Box 778, Portsmouth, NH 03801, (603) 431-7411. [Here reported: (Accession No. 1009835) 41,412E Answer to Bill in Equity (6pp.); 41,412F Proposed Findings of Facts & Conclusions of Law (12pp.); 41,412G Petitioners' 2nd Memo (7pp.); 41,412H Def's Post-Trial Memo (4pp.); 41,412-I Order (3pp.). Previously reported at 20 CLEARINGHOUSE Rev. 856 (Nov. 1986).]

The court has dismissed a class action challenging large rent increases scheduled for over 300 low-income families in a privately owned, run down housing complex in Portsmouth, New Hampshire. The court had previously issued a preliminary injunction based on the claims of plaintiff tenants of unconsionability, retaliation for forming a tenants' group, and unfair trade practices. After trial on the merits, however, the same judge dismissed the case, holding that the matter at issue is not capable of resolution by the court. The court noted that the proposed rent increases pose a practical and serious problem for plaintiffs, since the complex in which they live is the last area in Portsmouth where adequate housing is available to persons with lower incomes. Although the court recognized that the tenants will have no place to go if rents are raised beyond their financial capability, it concluded that it cannot interfere with the free market regulation of rent because such action is the sole function of the legislature. Because the state supreme court has held that state law does not allow cities and towns to pass rent control ordinances without enabling legislation, the court concluded a court clearly has no authority to regulate rent increases. Counsel notes that, after the case was dismissed, the owner of the disputed housing sent a new notice of rent increase and voluntarily capped rent increases at 50 percent, instead of trying to implement the prior notice, which would have doubled most rents. The city is assisting tenants in paying the increased rent while the city, the tenants, and the owners continue to negotiate over the terms of a zoning amendment that would give the owner a density bonus in return for payments into a housing trust fund to benefit the tenants.

MENTAL HEALTH

Court Refuses to Dismiss Suit Challenging Unsanitary and Overcrowded Conditions in State Hospital's Psychiatric Unit

41,053. A. v. Robinson, No. 86-1928 (E.D. La. Mar. 5, 1987). Plaintiffs represented by Ann Maclaine, New Orleans Legal Assistance, 212 Loyola Ave., New Orleans, LA 70112-2027, (504) 529-1000; Steven Scheckman, Maureen O'Connell. [Here reported: (Accession No. 1009842) 41,053B Memo in Support of Dismissal (14pp.); 41,053C Memo in Opp'n to Dismissal (34pp.); 41,053D Order (3pp.); 41,053E Memo in Support of Motion for Class Cert. (12pp.); 41,053F Memo in Opp'n to Plfs' Motion for Class Cert. (8pp.); 41,053G Answer (13pp.); 41,053H Order (3pp.). Previously reported at 20 CLEARINGHOUSE REV. 620 (Aug./Sept. 1986).]

The court has denied a motion to dismiss this action challenging the administration of psychiatric services in a state hospital. In their action brought under 42 U.S.C. § 1983, plaintiffs contend that the conditions of the Crisis Intervention Unit of Charity Hospital of New Orleans violate their right to due process and their liberty interests, because the facilities are crowded, unsanitary, and inhumane; chemical and physical restraints are used excessively; and patients' rights to treatment are largely ignored. The district court certified plaintiff class to include all individuals who were psychiatric patients confined in the unit between July 1, 1986, and December 31, 1986. The court rejected all three arguments that defendants, state officials responsible for administering the unit, brought forth in making their motion for dismissal. The court found that defendants are not insulated from suit by the eleventh amendment, because that amendment does not bar actions against state officials if the plaintiffs seek only declaratory and injunctive relief. The court also decided that plaintiffs' complaint does state a claim upon which relief may be granted, because it alleges infringement of four, basic, constitutionally protected liberty interests under the fourteenth amendment: the right to safety; the right to freedom from undue bodily restraint; the right to adequate food, clothing, shelter, and medical care; and the right to treatment. Further, the court found that the Governor of the State of Louisiana should not be dismissed as a defendant because his direct responsibility for the control and supervision of the state agency that manages Charity Hospital satisfies the "case and controversy" requirement of Article III of the federal Constitution. The court also entered a protective order requiring that all documents, case records, or information relating to patient records be produced only to counsel for the parties and their designated expert witnesses, and only for the purpose of the preparation and prosecution of this case for trial.

Arkansas Temporary Guardianship Statute Struck Down as Violative of Due Process Clause

42,179. Evatt, In re, 722 S. W.2d 851 (Ark. 1987). Appellant represented by Griffin Stockley, Central Arkansas Legal Services, 209 W. Capitol Ave., Little Rock, AR 72201, (501) 376-3423. [Here reported: (Accession No. 1009811) 42,179A Motion for Declaratory Judgment (3pp.); 42,179B Appellant's Brief (25pp.); 42,179C Opinion (5pp.).]

The Arkansas Supreme Court has found that the state's temporary guardianship statute is unconstitutional because it fails to provide adequate safeguards to satisfy procedural due process rights. Appellant, who is mentally handicapped, was made a ward of the state when a 90-day ex parte order of temporary guardianship was entered against him. No notice was given before the hearing, nor was an immediate hearing held after appellant was detained; neither was required by the statute at issue. After two days in jail, appellant was committed to a state hospital in an involuntary civil proceeding. Appellant unsuccessfully sought a declaratory judgment in the trial court. On appeal, appellant argued that the statute denied him procedural due process, as it authorized the granting of the guardianship without prior notice and without a review or safeguard hearing with the right to have counsel and to cross-examine witnesses. The court reversed, holding that, while advance notice is not necessary to comply with procedural due process, under the terms of the statute a person could be erroneously detained for as long as 90 days with no procedural safeguards to prevent such detention. The court noted that other comparable statutes have procedural safeguards that have proven administratively feasible, and concluded that the lack of such a comparably feasible safeguard in the guardianship statute constitutes a denial of due process. Finally, the court explained that, even if the statute provided for a safeguard hearing, it would fail because of the lack of meaningful notice of such a hearing, since the notice is given by the guardian, who may have interests adverse to the ward.

MIGRANTS

D.C. Circuit Orders Labor Secretary to Issue Field Sanitation Standard for Farmworkers Within 30 Days

42,247. Farmworker Justice Fund, Inc. v. Brock, No. 85-1824 (D.C. Cir. Feb. 6, 1987). [Here reported: (Accession No. 1009848) 42,247A Opinion (66pp.).]

In a strongly worded opinion, the D.C. Circuit has found that the Secretary of Labor acted unlawfully or unreasonably in withholding agency action and has ordered the Secretary to issue a federal field sanitation standard for agricultural workers within 30 days. This case began in 1972 when a Hispanic organization first petitioned the Secretary to promulgate a field sanitation standard requiring access to drinking water, handwashing facilities, and portable toilets. Over the next 14 years, during which time the case reached the D.C. Circuit on three separate occasions, the Secretary was repeatedly ordered to establish a federal standard and repeatedly delayed doing so. Finally, in October 1985, the Secretary announced a further delay of two years to give states an opportunity to develop their own field sanitation standards. In reviewing this decision, the court found first that, in resting his decision on a preference for state action in this area, the Secretary acted beyond the scope of his discretion. The court noted that Congress, in adopting the Occupational and Health Safety Act, decided that the federal government would take the lead in regulating occupational health, and the Secretary cannot reject that decision based on

his particular vision of federalism. Further, the court found that the Secretary used another inappropriate consideration in relying on Congress's prohibition against the Secretary's regulating farms with 10 or fewer workers as a reason to impose a moratorium on federal regulation of all farms. The court explained that it is not an adequate reason to postpone this regulation to encourage regulation of employees expressly outside the scope of the Secretary's authority. Although the appellate court found that the Secretary could properly consider the adequacy of imminent state regulation as a factor in determining the need for a federal standard, it determined that the proposed two-year delay is unreasonable in light of the fact that the Secretary officially acknowledged the need for the standard as long ago as 1976, but showed no new developments.

NATIVE AMERICANS

Indian Housing Authority's Eviction Violates Grievance Procedures and Indian Civil Rights Act

42,169. Lawrence v. Southern Puget Sound Inter-Tribal Hous. Auth., No. CV 860002 (Suquamish Tribal Ct., Port Madison, Wash., Indian Reservation, Jan. 26, 1987). AppellantDefendant represented by Bruce Neas, Puget Sound Legal Assistance Foundation, 529 W. 4th, Olympia, WA 98501, (206) 943-6260. [Here reported: (Accession No. 1009805) 42,169A Plf's Post-Trial Memo (42pp.); 42,169B Appellant/Def's Trial Brief (23pp.); 42,169C Decision & Order (13pp.).]

A Suquamish tribal court has held that the eviction decision and procedure followed by the Southern Puget Sound Inter-Tribal Housing Authority (IHA) and its board of directors so violated appellant tribe member's rights that she or her sublessee is entitled to immediate possession of a new unit. Appellant had been living in a house pursuant to a Mutual Help and Occupancy Agreement with the IHA since 1980. In 1986, appellant and the IHA agreed to allow her to move to one of the newly built IHA units, but when appellant's unit was "inspected" by the IHA a notice of termination was issued and appellant was informed that she could not move into the new unit. Both of these decisions were upheld at a hearing before the IHA's board of commissioners. The IHA then filed suit against appellant in tribal court for unlawful detainer and breach of contract, and appellant was granted appeal of the IHA's action. The court ruled that the move-out inspection of appellant's old unit was done in violation of the applicable regulations and that appellant's due process rights were violated when the IHA terminated her right to Indian housing without basic procedural safeguards. According to 24 C.FR. § 905.202, each IHA is required to adopt and promulgate a grievance procedure to afford all tenants and homebuyers a fair and reasonable opportunity to have their grievances heard and considered by IHA officials. Additionally, the regulation requires that a copy of this grievance procedure be provided upon request. The court declared that the IHA violated the due process guarantees of the Indian Civil Rights Act, as well as federal regulations and its own policies, by its failure to advise appellant of the existence

of the grievance procedure, and in having the eviction decision reviewed by the IHA's own board of commissioners, which had already approved the termination action. On the question of damages, the court determined that the IHA used an improper standard in evaluating the damages to appellant's unit and that the IHA, be failing to give appellant the opportunity to remedy the defective conditions, was precluded from charging appellant for labor and overhead.

PRISONS

Pretrial Detainee Who Was Put in Solitary Confinement After Complaining About Jail Conditions Awarded Money Damages

42,184. Moffett v. Kirk, No. CIV-4-85-29 (E.D. Tenn. Feb. 3, 1987). Plaintiff represented by Norman Feaster, David Kozlowski, Legal Services of South Central Tennessee, P.O. Box 1293, Tullahoma, TN 37388, (615) 455-7000. [Here reported: (Accession No. 1009812) 42,184A Plf's Post-Trial Brief (27pp.); 42,184B Def's Post-Trial Brief (27pp.); 42,184C Plf's Reply Brief (9pp.); 42,184D Opinion (9pp.).]

The court has awarded damages to a pretrial detainee who brought this action to challenge his solitary confinement in a maximum security cell because it occurred after he had filed a complaint concerning conditions at the county jail. Plaintiff had been arrested for aggravated sexual battery of a child and placed for 30 days in the general population at the county jail. While he was in the general population, plaintiff persuaded 12 other prisoners to sign a petition protesting jail conditions and threatening a lawsuit in federal court. Within a day or two of delivery of the petition to the sheriff, plaintiff was placed in one of the maximum security cells at the jail. Subsequently, he filed a pro se complaint challenging the conditions of confinement and seeking damages individually for violations of his first and fourteenth amendment rights. The court certified a class on the conditions aspect of the case, and the parties eventually reached a settlement that resulted in substantial changes in the conditions and operation of the jail. In plaintiff's individual action against the sheriff, he alleged that his isolation violated his first amendment rights and that he was denied due process because he was not given a hearing before being put in maximum security. Defendant argued that plaintiff was isolated because of the nature of his crime and because he was an escape risk. The court found that defendant's reasons for segregating plaintiff were pretextual and that plaintiff had been put in virtual isolation under harsh conditions that amounted to punishment because he chose to petition defendant about conditions at the jail. In so ruling, the court stated that plaintiff suffered depression, mental anguish, and discomfort above and beyond what would be expected had he not been punished for exercising his first amendment rights. For these reasons, the court awarded plaintiff $3,000 damages.