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JOHNSON v. DIXON

September 5, 1991

EARL JOHNSON, et al., Plaintiffs,
v.
SHARON PRATT DIXON, et al., Defendants



The opinion of the court was delivered by: JACKSON

 Plaintiffs Johnson, et al., four homeless men living in the District of Columbia, on behalf of themselves and others similarly situated, and the Community for Creative Non-Violence, a non-profit corporation advocating the causes of the homeless, bring this action against the District of Columbia, its Mayor, and the Director of its Department of Human Services (collectively, "the District"), to enjoin the closure of two of the public shelters the District of Columbia has heretofore maintained at its expense for people without a regular place of abode. On August 9, 1991, the Court denied plaintiffs' application for a temporary restraining order, and the shelters closed on schedule on the morning of August 11th. The matter is now before the Court on plaintiffs' motion for a preliminary injunction.

 The ultimate relief sought by both the original and the first amended complaints is for a judicial declaration that the closing of the "Pierce" shelter and the "Trust Clinic" shelter at 13th and G Streets, N.E., and 14th and Q Streets, N.W., respectively, is unlawful, and for a permanent injunction ordering that they be reopened. *fn1" The interim relief sought by the motion for a preliminary injunction, now that the shelters have actually closed, is superficially less ambitious. If the shelters are not to be reopened pendente lite, plaintiffs ask that the District be ordered to provide the individual plaintiffs and their fellows with shelter amenities fully equivalent to those they enjoyed while abiding at the Pierce and Trust Clinic shelters, and to make certain they all know how to avail themselves of them.

 I.

 The record before the Court shows that, at all times relevant to this case, the District has maintained the Pierce and Trust Clinic shelters pursuant to the District of Columbia Right to Overnight Shelter Act of 1984, D.C. Code ยงยง 3-601 et seq. *fn2" Until their closure, Pierce and Trust Clinic provided 150 and 125 beds, respectively, for adult single males, open each night from 7:00 p.m. to 7:00 a.m. to offer accommodations to those men who presented at the door while space remained available. As a practical matter, however, many -- perhaps, most -- of the inhabitants were "regulars" who sheltered in the same place every night for periods of weeks or months; Pierce or Trust Clinic was regarded as their "neighborhood" shelter, at which they believed themselves to be most welcome, their individual needs were known to shelter staff, and their connections with ancillary social support services, e.g., health care, public assistance, and substance-abuse programs, were maintained. The shelters were operated by private non-profit concerns under contract with the District: Trust Clinic by Associated Catholic Charities of the Archdiocese of Washington, and Pierce by the Coalition for the Homeless, Inc.

 The District's budget for fiscal 1992, commencing October 1st, drastically reduces the allocation of funds to operate its public shelter system: from $ 21 million in 1991 to $ 11.7 million the following year. Confronted thus with the economic necessity of closing some shelters, Earnest C. Taylor, the Chief of the District's Office of Emergency Shelter and Support Services, D.C. Department of Human Services, settled upon Pierce and Trust Clinic shelters as the first to go. They were, he concluded, in the poorest state of repair, and they were located in the City's wards (Wards 6 and 2, respectively) having the highest concentrations of homeless shelters generally, both public and private. Taylor's decision was approved by his superiors.

 In mid-June, 1991, Taylor notified the private contractors operating Pierce and Trust Clinic that their shelters would be closed by the end of September, directed that they begin preparation to close at once, and promised 30 days' notice in advance of the actual shutdown date. The inhabitants of Pierce and Trust Clinic were likewise informed by written notices, some delivered personally, and posted at the shelters. On July 8, 1991, both contractors were advised in writing that their contracts would terminate, and the shelters close, as of August 10, 1991, as they eventually did. This action, together with its prayer for emergency pendente lite relief, was filed August 7th.

 II.

 The availability of the preliminary injunctive relief the plaintiffs seek is governed by the familiar four factors: the irreparability of the harm to befall them if an injunction does not issue; the degree of likelihood that they will eventually prevail on the merits; the extent to which an injunction would impose an inequitable hardship on the District; and the direction in which the public interest points. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 182 App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 104 App. D.C. 106, 259 F.2d 921, 925-26 (D.C. Cir. 1958).

 The Court credits the plaintiffs' evidence as showing that numerous former denizens of Pierce and Trust Clinic shelters are now (or believe themselves to be) without a place of abode, at least one with comparable amenities, and that they are currently living and sleeping, literally, out-of-doors in the District of Columbia. The Court also accepts, for purposes of the current motion, plaintiffs' evidence to the effect that a substantial (although undetermined) proportion of the former populations of the two shelters are mentally ill, *fn3" and are thus "handicapped" as that term is used in various statutes prohibiting discrimination against such persons. Many also have other chronic illnesses or infirmities that would similarly be regarded as handicapping.

 The principal issue upon which this motion turns, even at this early juncture, however, is whether the complaint states any claim under federal law upon which relief could be granted. The issue bears directly on whether plaintiffs will succeed on the merits. *fn4"

 III.

 Count Four of the complaint alleges that the District's decision to close the two shelters violates plaintiffs' rights under the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In essence, they claim that the homeless men who were the regular inhabitants of the Trust Clinic and Pierce shelters had acquired a property right in the nature of an "entitlement" to continue to reside there until accorded "due process of law" which, in these circumstances, would have required individual notices of an intent to evict them and a hearing as to the validity of the District's reasons for doing so.

 In support of such a right plaintiffs cite the case of Williams v. Barry, 490 F. Supp. 941 (D.D.C. 1980), in which, over a decade ago, another judge of this district court preliminarily enjoined the total shutdown of what was then a largely ad hoc shelter system for homeless males in the District of Columbia. The district court held that the District's maintenance of shelters, upon which the homeless men had over time come to rely, had resulted in the formation of a de facto entitlement of sorts, see Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972), requiring that notice of the ...


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