Atlanta Progressive News

(APN) ATLANTA — US District Judge Thomas Thrash ruled against the Metro Atlanta Task Force for the Homeless in a Motion for Summary Judgement in its claims against the City of Atlanta, and ruled in favor of the City in its counterclaim for unpaid water bills, according to a copy of Thrash’s ruling, dated Friday, September 21, 2011, posted on the Saporta Report blog.

Atlanta Progressive News can clarify that the Task Force has another case in which individual Defendants including Emmanuel Fialkow, the Benevolent Community Investment Company, Inc., Central Atlanta Progress, and the Atlanta Downtown Improvement Districts, among others are named. That case, 2010-CV-187740, is before Fulton County Superior Court Judge Craig Schwall.

The Task Force also has a pending US Department of Housing and Urban Development complaint against the City.

In any event, the ruling could pose a problem for the Task Force, which does not have the money to pay the water bill. Judge Thrash granted the City a ruling for $147,288.73.

Previously, APN reported that the Task Force was in negotiations with several parties.

Reached by phone Monday, September 26, Anita Beaty, Executive Director of the Task Force, said that the Task Force had broken off negotiations with all parties because “they were going nowhere.” However, she said the actions in Fulton County Superior Court and the HUD complaint would still be going forward.

Beaty said she was returning from an out-of-town trip from this weekend and had not yet read the ruling.

Just because the City was cleared does not necessarily mean the same will occur for the other Defendants. Although to the extent that Judge Thrash cleared the City on the Task Force’s allegations, it was largely due to sovereign immunity. Sovereign immunity cannot be claimed by private companies, organizations, or individuals, such as those named in the Fulton County case.

Steve Hall, an attorney for the Task Force, clarified to APN in 2010 that the separate legal action against the City had been filed federal court because federal civil rights laws were being invoked.

The Task Force sued the City for its participation in a conspiracy to sabotage the shelter. APN has previously reported extensively on this conspiracy.

Specifically, the Task Force sued “under state law for damages for breach of contract, intentional interference with business and contractual relations, defamation, and violation of Georgia constitutional due process; it also seeks to compel the Defendant to provide water and sewer services and issue Certificates of Compliance to the Plaintiff so that the Plaintiff may seek State Department of Community Affairs (“DCA”) funding and federal funding,” Thrash wrote.

“The Plaintiff also asserts a violation of the First Amendment, the Fourteenth Amendment’s Equal Protection Clause and the Fifth and Fourteenth Amendment’s guarantees of substantive and procedural due process, and correspondingly seeks relief under 42 U.S.C. § 1983. The Defendant counterclaims for damages for breach of contract,” Thrash wrote.

Judge Thrash mainly threw out the Task Force’s tort claims because he said the City was entitled to sovereign immunity.

“Sovereign immunity applies if the City of Atlanta and its employees acted pursuant to their governmental capacity, and does not apply if they acted pursuant to their proprietary, revenue-generating capacity,” Thrash wrote, adding that the Task Force had not provided evidence that the City or its employees acted in a proprietary capacity.

It is not clear why the Task Force was not able to demonstrate that, at least in the case of Debi Starnes, former Mayor Shirley Franklin’s homelessness liaison, who steered funds away from the Task Force and to the United Way while working also for the United Way, and who owned a consulting firm that worked with groups
which also benefitted from the Task Force’s loss of funds.

Thrash wrote the Task Force did not state a First Amendment claim. He stated that the water service issue had been disposed of already in Fulton County Superior Court. And he stated that he could not enjoin the City to issue Certificates of Compliance to the Task Force because the Task Force had not applied for such certificates for the current year.

Thrash also did not seem convinced that the City of Atlanta had violated federal civil rights laws.

“To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a violation of a constitutional right, and (2) that the alleged violation was committed by a person acting under color of state law,” Thrash wrote.

“The Fourteenth Amendment guarantees to every citizen that no State shall ‘deprive any person of life, liberty, or property, without due process of law…’ U.S. Const. amend. XIV, § 1,” Thrash wrote.

“Under Georgia law, if a property interest exists, federal law governs what minimal due process is required,” Thrash wrote.

“The Task Force waives the opportunity to challenge a violation of the Equal Protection Clause on behalf of the homeless people it serves,” Thrash wrote.

“The Task Force alleges that the City took from it the following interests: (1) the building at Peachtree and Pine; (2) eligibility for state and federal grants; (3) the ability to pursue its profession; and (4) its reputation and business relations,” Thrash wrote.

“As previously mentioned, the Task Force’s grievance regarding harm to its reputation and business relations are state law tort claims barred by sovereign immunity under the Georgia Constitution. As for the building at Peachtree and Pine and the ability to pursue its profession, the Task Force has not introduced evidence demonstrating that there was an actual deprivation of these interests that was caused by the City,” Thrash wrote.

“The plaintiff has ‘to prove an actual deprivation of a constitutional right; a conspiracy to deprive is insufficient,'” Thrash wrote.

“The remaining interest is eligibility for state and federal grants… The Task Force does not have a constitutionally protected property interest in either the Certificate of Consistency or in eligibility for state grants,” Thrash wrote.

“The Equal Protection Clause of the Fourteenth Amendment states that ‘[n]o State shall… deny to any person within its jurisdiction the equal protection of the laws.’ U.S. Const. amend. XIV, § 1,” Thrash wrote.

“Since the Task Force does not assert that it is a member of a protected class, its claim must be brought upon a ‘class of one’ legal theory… In order to succeed on a claim for an Equal Protection violation for a class-of-one, the Task Force must show that it ‘has been intentionally treated differently from others similarly situated’ and that ‘there is no rational basis for the difference in treatment,'” Thrash wrote.

“The Task Force has not introduced facts demonstrating that it was treated differently from others similarly situated. It does not provide evidence regarding the treatment of other homeless shelters by the City, or even whether the other homeless shelters were similarly situated. The claim is dismissed,” Thrash wrote.

The Task Force can still file a Motion for Reconsideration, as well as appeals; this may buy the shelter some more time on its water bill.

(END / 2011)