Natasha THOMAS; Susan Gibbs; Edwina Lewis, Plaintiffs-Appellants, v. Ann COHEN; Glenn Craig; James Embry; Susan Harbour, in their individual capacities, Defendants-Appellees, 453 F.3d 657

RYAN, J., delivered the opinion of the court, in which GILMAN, J., joined. CLAY, J. (pp. 663 - 668), delivered a separate dissenting opinion. RYAN, Circuit Judge. The district court granted

summary judgment in favor of the defendant police officers in this 42 U.S.C. § 1983 civil rights action in which the plaintiffs allege that their constitutional rights were violated when the officers evicted them from a transitional homeless shelter. We AFFIRM because the court properly concluded that, under Kentucky law, the plaintiffs lacked a protected property interest in the premises. I.

On December 8, 1998, the defendants, all officers of the Louisville, Kentucky, police department, removed the plaintiffs, Natasha Thomas, Susan Gibbs, and Edwina Lewis, from Augusta House, a transitional shelter in which the women were residing. They did so at the request of the director of the shelter and without affording the plaintiffs legal process of any kind. The director had earlier asked the plaintiffs to leave the shelter for various violations of house rules, but they refused to leave. At the time of the eviction, Augusta House was owned and operated by Mission House, Inc.

The residence was the least restrictive stage of a three-stage transitional shelter program operated to help homeless women become financially independent members of mainstream society. There is no evidence in the record to support the dissent’s characterization of Augusta House as low-income housing rather than a transitional homeless shelter, and the plaintiffs themselves presented no proof that Augusta House was not a shelter. All Augusta House residents were homeless women with financial difficulties who had progressed through the first two stages of the Mission House program.

Emmaus House was the first stage of the program. Participants resided there for approximately two months until Mission House staff determined they were ready to advance to the next stage, the Annex. Emmaus House residents were subject to a curfew and rules governing a wide range of conduct, and Mission House staff provided constant supervision. The staff requested that each participant pay a $140 monthly shelter fee and assigned each participant a sleeping area and chores.

In addition to providing shelter in a structured environment, Mission House offered Bible study opportunities and assisted program participants in obtaining social security benefits, food stamps, and employment. As the women progressed through the program, Mission House gave them greater responsibility in order to ease their transition into mainstream society. The staff continued to assign each participant a sleeping area and chores, but the women were subject to fewer rules and received less supervision. When the women reached Augusta House, they were no longer subject to a curfew or live-in supervision.

They were expected to have employment or income of some kind prior to moving into Augusta House, but the shelter fee arrangement remained unchanged. The women resided at Augusta house until “they g[o]t on their feet,” which could take up to a couple of years, and, with the help of the Mission House staff, they found permanent housing. Augusta House was located in a house in a residential neighborhood in order to provide the residents with the responsibility of maintaining a house before their transition into mainstream society.

At the time of the eviction, each plaintiff was the sole occupant of her bedroom, and the plaintiffs shared the common living areas, bathroom, and kitchen with other occupants of the house. The residents were given keys to the house, and they were able to come and go freely, subject to the house rules. There was no lease between the plaintiffs and Mission House or Augusta House, and staff members were authorized to enter the bedrooms in Augusta House, move the residents to different bedrooms, and place two residents in a bedroom if they wished to do so.

In the fall of 1998, a dispute arose between the plaintiffs and the director of Augusta House, Laura Zinious, over the plaintiffs’ alleged violation of house rules. After allegedly asking the residents to leave, as was standard practice when residents violated house rules, Zinious called the police to have the plaintiffs evicted. The responding officers evicted the plaintiffs over their protests that they were tenants who paid rent and despite their attempts to show the officers documents from their legal aid attorney expressing an opinion as to their tenancy.

The plaintiffs filed a complaint under 42 U.S.C. § 1983 alleging that the eviction violated their civil rights protected by the Fourth and Fourteenth Amendments to the United States Constitution. The officers moved for

summary judgment, stipulating, for purposes of the motion, that the plaintiffs were tenants of Augusta House at the time of the eviction, but claiming the officers’ actions were protected from suit based on qualified immunity. The court denied the motion, and the officers appealed. A divided panel of this court concluded that the officers were entitled to qualified immunity with respect to the Fourth Amendment claim, but that the officers were not entitled to qualified immunity with respect to the Fourteenth Amendment claim. See Thomas v. Cohen, 304 F.3d 563, 565-66 (6th Cir.2002). On remand, the defendants again moved for

summary judgment, this time arguing that the plaintiffs’ living arrangements were not governed by the Kentucky Uniform Residential Landlord and Tenant Act (KURLTA) and that the plaintiffs, therefore, did not have a recognized property interest under Kentucky state law. The district court granted the defendants’ motion and the plaintiffs now appeal. II. “We review a grant or denial of

summary judgment de novo, using the same Rule 56(

c) standard as the district court.” Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999).

Summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In deciding upon a motion for

summary judgment, we must view the factual evidence and draw all reasonable inferences in favor of the non-moving party.” Nat’l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir.1997). III. The district court found that no material facts were in dispute and that the plaintiffs did not have a protected property interest under Kentucky law because the KURLTA expressly provides that it does not apply to “[rjesidence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational counseling, religious, or similar service.” Ky.Rev.Stat. Ann. § 383.535(1).

The KURLTA does not define the term “institution,” and we find no Kentucky authority applying the KURLTA’s “institution exception.” The plaintiffs argue that Augusta House is not an institution because it is located in a residential building and neighborhood, but we reject that argument, and, as we will explain, we agree with the district court that, as a matter of law, the plaintiffs’ residence at Augusta House was incidental to the provision of “educational counseling, religious, or similar serviee[s].” Although Kentucky courts have not interpreted the “institution exception” to the KURLTA, Kentucky’s general rule of statutory

interpretation is that, in the absence of ambiguity, the words in a statute are given their plain and ordinarily understood meaning, unless such an application would lead to an absurd result. See Autozone, Inc. v. Brewer, 127 S.W.3d 653, 655 (Ky.2004). As the dissent notes, courts have interpreted identical provisions of the Oregon and Washington versions of the KURLTA. See Burke v. Oxford House of Oregon

Chapter V, 196 Or.App. 726, 103 P.3d 1184 (2004); Sunrise Group Homes, Inc. v. Ferguson, 55 Wash.App. 285, 777 P.2d 553 (1989). Using a dictionary definition, these courts explained that “incidental ‘does not mean that room and board must be trivial or unimportant in comparison with the overall institutional purpose; it means that living there is subordinate or attendant to the institutional purpose.’ ” Burke, 103 P.3d at 1193 (quoting Sunrise, 111 P.2d at 555).

The courts in Burke and Sunrise also rejected the dissent’s argument that housing cannot be subordinate or attendant to an institution’s provision of services when one of the institution’s primary services is the provision of housing. See id. & n. 9; Sunrise, 111 P.2d at 555. The court in Sunrise affirmed the trial court’s finding that a group home for the developmentally disabled was an institution, explaining: [T]he room and board provided by the Olivia Park facility is incidental to the receipt of services the facility was created to provide.

Congregate care homes provide those who are unable to “maintain a safe environment in an independent living arrangement” with supervision and “assistance with activities of daily living and/or health-related services[.]” While congregate care facilities exist to keep developmentally disabled persons mainstreamed, and to that extent are an attempt at “deinstitutionalization,” that is not to say they lack an institutional purpose above and beyond the provision of fundamental room and board services. The RLTA specifically excludes such institutional living arrangements from the scope of its provisions.

Sunrise, 777 P.2d at 555 (citation omitted). Similarly, the court in Burke held that Oxford House, an unsupervised halfway house, is an institution under the Oregon Residential Landlord and Tenant Act. Burke, 103 P.3d at 1194. Oxford House was established to help “recovering drug and alcohol addicts make the transition to independent lives in an environment that allows them to continue their recovery process without professional supervision.” Id. at 1185.

The court explained: [T]he environment of self-policing and mutual support at Oxford House combines with the zero-tolerance principles to amount to services similar to counseling; that is, Oxford House provides peer supervision, support, and counseling.... ... People seeking membership at Oxford House are looking to maintain their sobriety, establish themselves financially, and govern their own lives without the “overseer” that typically accompanies residence at a halfway house. The fact of residence is subordinate or attendant to those purposes. Id. at 1191,1193.

As in Burke and Sunrise, the provision of housing here was an integral part of the Mission House program, but it was incidental to Mission House’s purpose of helping homeless women become financially independent members of mainstream society. The plaintiffs resided at Augusta House only as a result of their participation in the Mission House program. As the plaintiffs progressed through the program, Mission House provided them with various services to help them integrate themselves into mainstream society.

In the early stages of the program, Mission House staff provided the plaintiffs assistance in obtaining social security benefits, food stamps, and employment, as well as a rigidly structured environment and constant supervision to help them get their lives back on track. As they progressed through the program to Augusta House, Mission House provided the plaintiffs with more responsibility and less structure in a home-like environment to help them learn how to achieve lasting financial independence upon leaving the program.

The “deinstitutionalized” home-like environment at Augusta House and its location in a residential neighborhood did not vitiate or in any way diminish the primary social services character of the Mission House program; rather they provided a relatively comfortable and “realistic setting” in which Mission House could more effectively achieve its purpose of helping-homeless women in the program learn how to achieve lasting financial independence.

Mission House provided housing in Augusta House only to facilitate the provision of this counseling-like service; it did not provide housing to the general public who would not participate in, or benefit from, its primary social service program. We conclude that the plaintiffs’ residence at Augusta House was incidental to the “educational counseling, religious, or similar service[s]” Mission House provided in fulfilling its mission of helping homeless women become financially independent members of mainstream society. Therefore, the plaintiffs’ residence at Augusta House was not governed by the KURLTA. IV.

In the alternative, we conclude that, even if the plaintiffs’ residence at Augusta House did not fall under the KURLTA’s “institution exception,” the plaintiffs failed to qualify as tenants under the KURLTA because they have presented no evidence that they had a right to exclusive possession of Augusta House or their individual bedrooms. The district court also concluded that the plaintiffs did not qualify as “tenants” under Kentucky common law, but the plaintiffs do not address this issue on appeal and have therefore waived it. See Ewolski v. City of Brunswick, 287 F.3d 492, 516-17 (6th Cir. 2002).

The plaintiffs argue only that they were tenants under the KURLTA. The KURLTA defines a tenant as “a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.” Ky.Rev.Stat.

Ann. § 383.545(15). “ ‘Rental agreement’ means all agreements, written or oral, and valid rules and regulations adopted under KRS 383.610 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises,” id. § 383.545(11), and a “dwelling unit” is “a structure or the part of a structure that is used as a home, residence, or sleeping place by one (1) person who maintains a household or by two (2) or more persons who maintain a common household,” id. § 383.545(3).

Contrary to the plaintiffs’ claim, it is not clear whether each plaintiffs “dwelling unit” was Augusta House as a whole or her individual bedroom, but we need not answer that question because the plaintiffs have presented no evidence that they were “entitled under a rental agreement” to occupy Augusta House or their individual bedrooms “to the exclusion of others.” They merely argue that each plaintiff had a key to Augusta House and sole possession of her bedroom at the time of eviction.

In contrast, the defendants have provided evidence that Mission House had an unrestricted right to house others in Augusta House as well as a right to assign Augusta House residents to different bedrooms and place more than one resident in a bedroom. We agree with our dissenting colleague and with the court in Torbeck v. Chamberlain, 138 Or.App. 446, 910 P.2d 389, 392-93 (1996), that the phrase “to the exclusion of others,” does not require that a party be entitled to exclude all others, including cotenants, to be protected by the KURLTA.

But the dissent, like the plaintiffs, confuses the plaintiffs’ good fortune of exclusive possession with a right to exclusive possession. The fact that the plaintiffs had keys to Augusta House does not imply a right to exclusive possession when the landlord had a right to provide keys to whomever else it chose. Along similar lines, the fact that each plaintiff had her own bedroom, which, although its doors could not be locked, the other residents of Augusta House had no right to enter, provides no evidence of a right to exclusive possession.

Here, the plaintiffs have presented evidence only that they had the good fortune of exclusive possession of their bedrooms during their approximate two-month stay at Augusta House. The defendants presented evidence that Mission House could permit others to reside in Augusta House and could move the plaintiffs to different bedrooms or place other residents in their bedrooms at any time, and the plaintiffs present no evidence to dispute that. And, contrary to the dissent’s assertion, the record does not reflect that the Mission House staff had only a limited right to enter Augusta House.

It merely reflects that the staff did not reside there in furtherance of Mission House’s goal of helping the plaintiffs become financially independent members of mainstream society. Therefore, there is no factual dispute that the plaintiffs were not entitled to possess Augusta House or their individual bedrooms “to the exclusion of others,” and they failed to qualify as tenants under the KURLTA as a matter of law. y.

We conclude that the plaintiffs lacked a protected property interest under Kentucky law because their residence at Augusta House constituted residence at an institution, which is not governed by the KURLTA, and, in the alternative, they failed to qualify as tenants under the KURLTA. We AFFIRM the district court’s order granting

summary judgment in favor of the defendants.