Biggs and Kalodner, Circuit Judges, and Van Dusen*fn*, District Judge. Biggs, Circuit Judge (concurring in part and dissenting in part).
VAN DUSEN, District Judge.
This case presents the alleged denial of the constitutional rights of the appellants (and their families), who were tenants in the "low income" housing projects owned and operated by the defendant-appellees in the City of Newark, New Jersey. The appellants occupied their apartments pursuant to a standard lease which provided for automatic renewals for successive terms of one month, terminable by either party upon giving one month's written notice. In the late summer and early fall of 1966, the three families were served by the Newark Housing Authority with thirty-day notices of termination of their leases, with notice to vacate. All three families failed to vacate. Subsequently, the Newark Housing Authority brought "Summary Actions for Recovery of Premises" in the Essex County District Court pursuant to New Jersey statute, N.J.S.A.2A:18-53(a). Judgment for possession was entered in all three cases, but warrants of eviction were stayed temporarily. Appellant Randell was evicted January 20, 1967; appellants Avent and Durant are presently still in possession by virtue of our temporary restraining order issued April 21, 1967.
Subsequent to the judgments for possession and appellant Randell's eviction, the appellants brought suit in the United States District Court seeking an injunction restraining their eviction and reinstating the evicted Randell on the grounds that in the evictions, they had been denied due process of law as guaranteed to them by the Fourteenth Amendment. After first denying an ex parte restraining order and issuing an order to show cause, the District Court, following a hearing on the application for a preliminary injunction to reinstate Randell, denied any injunctive relief and dismissed the appellants' action on the grounds that there was no federal subject matter jurisdiction, particularly under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 (3) and (4),*fn1 and on the authority of the Supreme Court's decision in Monroe v. Pape, 365 U.S. 167, 187, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).*fn2
The procedures followed by appellees in eviction cases were placed in the record by appellants. When the Housing Authority receives a serious complaint about a tenant, it conducts an investigation in an effort to rehabilitate the family before recommending any eviction. As pages 13-14 of the deposition of 3/3/67, offered in evidence by appellants' counsel, reveals:
"If the facts warrant it, we will recommend eviction. If the facts warrant it after an investigation and after working with the tenant and exhausting whatever remedies we have to help the tenant.
"* * * After all the facts are in and when we feel that the tenant is imposing a threat to others, the welfare of others -- * * *. We recommend eviction."
In seventy to eighty per cent. of the cases involving complaints as to tenants, the Tenant Relations office rehabilitates the family so that no eviction is required.
At the depositions of 3/3/67, the Tenant Relations office file of Randell was marked P-2 and the similar file of Avent was marked P-3. These files were made available to appellants' counsel in March 1967. The Tenant Relations office determines "whether a tenant is undesirable or tenant should be removed because of the tremendous adverse effect it has on the neighbors and disturbing a lot of people". In their investigation of complaints, the Tenant Relations office wants "to make sure what is said about [the tenants] is plausible and it is evidential and can be proved". Discussions of a tenant's problems are conducted with him primarily by the assigned case worker. But the case is also discussed by Tenant Relations office personnel with the project manager. Finally, after discussions between the Director of Tenant Relations and the case worker, the recommendation to evict, if any, is made. "The tenant is notified of the complaint but without divulging the identity of the complainant". Such notification is oral. The tenants are given an opportunity to state their views of the various complaints to the case worker. Tenants are told of the decision to evict, and given all the reasons therefor, before any legal proceedings are instituted. The appellants in this case were told of the complaints against them. Where the eviction is for nonpayment of rent or for one other cause not applicable to this situation,*fn3 the above procedure is not necessarily followed. Written reports of the investigation by the case worker are placed in the tenant's file as part of the regular course of business. The names of the complainants do not necessarily appear in the reports. The abovedescribed procedures were followed in the case of the named appellants in this case.*fn4
Rev. Porter, who has a college degree and "very much" of a "background in social work," was the case worker assigned to investigate the Avent and Randell families. He notified them of the complaints against them. His several visits with these families beginning in May 1964 are enumerated at pages 51 and following of Deposition P-2. All the reports in the files of Randell and Avent were prepared by Rev. Porter and signed by the Director of Tenant Relations.
At the argument before this court, it was conceded that the appellants were present with counsel on October 10, 1966, when the above "Summary Action for Recovery of Premises" came before the Essex County District Court for hearing. The circular on eviction procedure issued by the Department of Housing and Urban Development on February 7, 1967, described and quoted in part in Thorpe v. Housing Authority, note 4, supra, presumably applies to the Newark Housing Authority since that date,*fn5 and, furthermore, this record indicates that appellees complied substantially with the requirements of this circular during 1966 before it was issued.*fn6
The appellants urge us to reverse the District Court on the grounds that there was subject matter jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 because their claim of denied due process was neither frivolous nor insubstantial. Baker v. Carr, 369 U.S. 186, 199, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Bell v. Hood, 327 U.S. 678, 682-683, 66 S. Ct. 773, 90 L. Ed. 939 (1946). In addition, they argue that the Housing Authority and its director were persons within the scope of § 1983. They claim that they were evicted without any "administrative type" hearing in which they were afforded notice of the reason for eviction, the chance to contest the eviction, or the chance to explain, rebut, contest, or confront witnesses and informers. Such shortcomings, they urge, constitute action under color of state law prohibited by the Fourteenth Amendment, the remedy for which was specifically granted in the above cited §§ 1343 and 1983.
The foregoing facts make clear that the appellants have failed to sustain their burden of proving their right to a preliminary injunction. See Thorpe v. Housing Authority, supra. The dismissal of the ...