                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 05a0342p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


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                                   Plaintiff-Appellant, -
 OLIVER CASWELL,
                                                          -
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                                                          -
                                                              No. 04-1540
           v.
                                                          ,
                                                           >
 CITY OF DETROIT HOUSING COMMISSION; TAYLOR               -
                                                          -
                                Defendants-Appellees. -
 C. SEGUE III, Interim Executive Director,

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                                                         N
                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                      No. 03-71289—Lawrence P. Zatkoff, District Judge.
                                     Argued: June 10, 2005
                             Decided and Filed: August 15, 2005
                 Before: KEITH, BATCHELDER, and COLE, Circuit Judges.
                                      _________________
                                          COUNSEL
ARGUED: Daniel P. Feinberg, LEGAL AID & DEFENDER ASSOCIATION, Detroit, Michigan,
for Appellant. Angela R.C. Williams, DETROIT HOUSING COMMISSION, Detroit, Michigan,
for Appellees. ON BRIEF: Daniel P. Feinberg, LEGAL AID & DEFENDER ASSOCIATION,
Detroit, Michigan, for Appellant. Angela R.C. Williams, Julius A. Ray II, DETROIT HOUSING
COMMISSION, Detroit, Michigan, for Appellees.
                                      _________________
                                          OPINION
                                      _________________
         R. GUY COLE, JR., Circuit Judge. Oliver Caswell was a recipient of housing subsidies from
the City of Detroit Housing Commission (“DHC”). When Caswell’s landlord initiated eviction
proceedings against him, DHC terminated Caswell’s subsidies. Caswell filed an action under 42
U.S.C. § 1983 against the Housing Commission and its director, alleging an improper denial of
subsidies. The district court denied Caswell’s motion for summary judgment and sua sponte granted
summary judgment to the defendants. For the following reasons, we AFFIRM the judgment of the
district court.




                                                1
No. 04-1540           Caswell v. City of Detroit Housing Comm’n, et al.                         Page 2


                                                   I.
       Section 8 of the United States Housing Act of 1937 created the Tenant Based Assistance
Housing Choice Voucher Program (“Voucher Program”) in which the United States Department of
Housing and Urban Development (“HUD”) partially subsidizes the rent of qualifying low-income
individuals. See 42 U.S.C. § 1437f(a). HUD authorizes local public housing authorities (“PHAs”)
to administer the Voucher Program. Id. at § 1437f(b)(1). Oliver Caswell participated in the
Voucher Program, which was administered by DHC. Caswell was a beneficiary of the Voucher
Program from November 1986 until November 2000.
        On September 16, 2000, Caswell’s landlord initiated eviction proceedings against him in
state court for violating their lease agreement by failing to keep the premises clean. As is required
by federal regulation, see 24 C.F.R. § 982.310(e)(2)(ii), the landlord sent a copy of the eviction
notice to DHC. Caswell continued to reside in the apartment. On September 25, 2000, DHC sent
Caswell a “Termination of Assistance Notice,” specifying that all rental payments made by DHC
on Caswell’s behalf would be terminated by November 1, 2000. The notice gave Caswell ten days
in which to request a hearing to appeal this decision. Caswell timely appealed, and DHC held a
hearing on November 1. Caswell represented himself at this hearing and failed to dispute the
landlord’s claims that he violated the lease agreement. The next day, DHC terminated Caswell’s
benefits.
         The eviction action was tried in state court and, on November 27, Caswell was granted the
right to possess the apartment. The order granting Caswell continued possession became finalized
in January of 2001. Caswell claims that during the month of November, however, he continued to
live in the apartment without the assistance of the Voucher Program. At some point, Caswell was
unable to pay the full rent and was evicted. As a result, Caswell claims that he became homeless
for a short period of time. It appears that DHC has not reinstated Caswell’s subsidy.
        Caswell filed a § 1983 claim against DHC and its director, alleging that DHC:
(1) improperly deprived Caswell benefits under the Voucher Program while the eviction proceeding
was pending in state court; and (2) denied Caswell adequate due process at the hearing. Caswell
filed a motion for summary judgment on these claims. The district court denied Caswell’s motion
and sua sponte granted summary judgment in favor of the defendants. The court dismissed, with
prejudice, Caswell’s claims. This timely appeal followed.
                                                  II.
         We review the district court’s grant of summary judgment de novo. Thomas v. City of
Chattanooga, 398 F.3d 426, 428 (2005). Summary judgment is proper where the movant shows
through “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits . . . 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). “The nonmovant must rebut such
a showing by presenting sufficient evidence on which the jury could reasonably find for him; a mere
scintilla of evidence is insufficient to meet this burden.” Thomas, 398 F.3d at 429 (internal
quotation marks omitted).
        When the district court not only denies summary judgment to the movant but sua sponte
grants summary judgment to the nonmovant, we must conduct two levels of review. “The substance
of the district court’s decision must of course meet the normal standards for summary judgement
[sic]. However, the procedural decision to enter summary judgment sua sponte must also be
reviewed to determine if the court abused its discretion by entering the judgment on its own motion.”
Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 105 (6th Cir. 1995).
No. 04-1540              Caswell v. City of Detroit Housing Comm’n, et al.                                   Page 3


A. Section 1983 liability for violations of 24 C.F.R. § 982.311(b)
        Caswell argues that DHC violated 24 C.F.R. § 982.311(b) by terminating Caswell’s housing
subsidies before his eviction proceeding was finalized in state court and while he continued residing
in the apartment. Under that regulation, the PHA “must continue to make housing assistance
payments to the owner in accordance with the [ ] contract until the owner has obtained a court
judgment or other process allowing the owner to evict the tenant. The PHA may continue such
payments until the family moves from or is evicted from the unit.” 24 C.F.R. § 982.311(b). Here,
DHC conceded that, had it known that Caswell intended to reside in his apartment until the state
court ordered him evicted, it would have been obligated to restore his rental subsidy or at least given
him a “moving” package. The DHC argues, however, that it was unaware that Caswell was residing
in the apartment, and that Caswell had an obligation to inform DHC of this fact if he wanted to
continue to receive any subsidies after the landlord had initiated eviction proceedings.
Consequently, both parties have framed this appeal as a dispute over whether the tenant bears the
burden of notifying the PHA that he intends on residing in the apartment during eviction proceedings
in order to continue receiving housing subsidies. Before we can consider what obligations DHC and
Caswell may have each had under the regulations, we must first determine whether a § 1983 claim
can lie against DHC for a violation of a federal regulation.
        Section 1983 creates a federal cause of action against state and local officials who, while
acting under the color of state law, deprive an individual of a right secured to him by the
Constitution or federal law. 42 U.S.C. § 1983. Both the district court and Caswell relied upon this
Court’s decision in Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994), for the proposition
that § 1983 creates a federal cause of action for the violation of a federal regulation, unless the
statute enabling said regulation forecloses enforcement. Id. at 551. However, the Supreme Court’s
decisions in Alexander v. Sandoval, 532 U.S. 275   (2001), and Gonzaga University v. Doe, 536 U.S.
273 (2002), have cabined Loschiavo’s holding.1 In Sandoval, the Supreme Court held that there was
no private cause of action to enforce Title VI regulations. 532 U.S. at 293. The Court stated that
“[l]anguage in a regulation may invoke a private right of action that Congress through statutory text
created, but it may not create a right that Congress has not. . . . Agencies may play the sorcerer’s
apprentice but not the sorcerer himself.” Id. at 291 (internal citation omitted). It is important to
note, however, that the plaintiffs in Sandoval had not pursued a cause of action under § 1983; rather,
the plaintiffs argued that an implied cause of action existed directly under Title VI and its
accompanying regulations. See id. at 299-300 (Stevens, J., dissenting) (“[T]o the extent that the
majority denies relief to the respondents merely because they neglected to mention 42 U.S.C. § 1983
in framing their Title VI claim, this case is something of a sport.”). Nevertheless, the Court in
Gonzaga shed further light on this issue by applying Sandoval’s logic to § 1983 cases:
         [W]e further reject the notion that our implied right of action cases are separate and
         distinct from our § 1983 cases. To the contrary, our implied right of action cases
         should guide the determination of whether a statute confers rights enforceable under
         § 1983. We have recognized that whether a statutory violation may be enforced
         through § 1983 is a different inquiry than that involved in determining whether a
         private right of action can be implied from a particular statute. But the inquiries
         overlap in one meaningful respect—in either case we must first determine whether
         Congress intended to create a federal right. Thus we have held that the question
         whether Congress . . . intended to create a private right of action is definitively
         answered in the negative where a statute by its terms grants no private rights to any


         1
          Although a panel of this Court cannot overrule the decision of another panel, we may modify our prior
holdings when an intervening opinion of the United States Supreme Court requires us to do so. Salmi v. Sec’y of Health
and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
No. 04-1540           Caswell v. City of Detroit Housing Comm’n, et al.                             Page 4


        identifiable class. For a statute to create such private rights, its text must be phrased
        in terms of the persons benefited.
536 U.S. at 283-284 (emphasis in original) (internal quotation marks and citations omitted). The
Court did distinguish cases brought under § 1983 from cases brought directly under the right-
conferring statute by stating:
        Plaintiffs suing under § 1983 do not have the burden of showing an intent to create
        a private remedy because § 1983 generally supplies a remedy for the vindication of
        rights secured by federal statutes. Once a plaintiff demonstrates that a statute confers
        an individual right, the right is presumptively enforceable by § 1983.
Id. at 284 (internal citation omitted).
         Accordingly, when Sandoval and Gonzaga are read together, it becomes clear that in order
for Caswell to bring a viable claim under § 1983, he must show that the right, of which he seeks
vindication, is conferred by Congress in “clear and unambiguous terms.” Gonzaga, 536 U.S. at 290;
id. at 286 (“[W]here the text and structure of a statute provide no indication that Congress intends
to create new individual rights, there is no basis for a private suit, whether under § 1983 or under
an implied right of action.”). Furthermore, the right conferred must be “phrased in terms of the
persons benefited.” Id. at 284 (internal quotation marks omitted). “Statutes that focus on the person
regulated rather than the individuals protected create no implication of an intent to confer rights on
a particular class of persons.” Sandoval, 532 U.S. at 289 (internal quotation marks omitted). The
Court made clear in Gonzaga that where a statute simply prohibits certain conduct, or sets forth a
policy, that statute does not create a cause of action or other rights for the individual protected by
the statute. See 536 U.S. at 287-288.
         Here, Caswell claims that DHC violated 24 C.F.R. § 982.311(b) when it improperly
terminated him from the Voucher Program. In supplemental briefing to this Court, Caswell argued
that his right to be free from termination in this manner stems from 42 U.S.C. § 1437f(o)(2). Section
1437f(o) of the Housing Act establishes the Voucher Program. Subsection 2 of § 1437f(o) is entitled
“Amount of monthly assistance payment,” and begins: “Subject to the requirement under section
1437a(a)(3) of this title (relating to minimum rental amount), the monthly assistance payment for
a family receiving assistance under this subsection shall be determined as follows . . . .” The
provision then sets forth the varying amounts of tenant-based assistance that participants of the
Voucher Program should receive. Caswell contends that this provision confers a right to tenants
because it is analogous to the rent-ceiling provision of the Housing Act, 42 U.S.C. § 1437a, which
the Supreme Court previously recognized as conferring upon tenants the right not to be overbilled.
See Wright v. City of Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 423-430 (1987). In
Wright, the PHA overbilled tenants for their utilities, thereby directly violating the statutory rent
ceiling provision of the Housing Act. Accordingly, the Court found that the tenants could sue the
PHA via § 1983 for this federal rights violation. Id.
        Even if § 1437f(o)(2) could be viewed as being phrased in terms of the persons “benefited,”
that is beside the point in our case. Section 1437f(o)(2) establishes the amount of monthly
assistance that a tenant should receive if he is a participant of the program. Here, Caswell claims
that DHC improperly terminated his participation in the Voucher Program altogether, not that DHC
violated the monthly assistance amounts set forth in the statute. Therefore, even if § 1437f(o)(2)
conferred a right to a fixed amount of subsidies, the right Caswell claims to have been
violated—under 24 C.F.R. § 982.311(b)—has nothing to do with the amount of his subsidy.
Moreover, we can find no provision under 42 U.S.C. § 1437 et. seq. which, in clear and
unambiguous terms, confers a particular right upon the tenant to subsidies after the landlord initiates
eviction proceedings. For example, 42 U.S.C. § 1437f(o)(7) establishes certain obligations of the
No. 04-1540           Caswell v. City of Detroit Housing Comm’n, et al.                       Page 5


landlords of participants. However, nothing in this provision confers a right upon the tenant to
continued housing subsidies during a court eviction proceeding. Another provision, 42 U.S.C.
§ 1437n, discusses the eligibility requirements for assisted housing. However, this section suffers
the same fate as the aforementioned provision.
       Because neither we nor Caswell can point to a specific statutory provision in the Housing
Act that confers a right relevant to DHC’s alleged violation of 24 C.F.R. § 982.311(b), Caswell
cannot pursue his claim under § 1983. For this reason, we AFFIRM the district court’s grant of
summary judgment to DHC on Caswell’s regulatory violation claim.
B. Due Process Violation
       Caswell also argues that DHC violated his right to procedural due process. Caswell’s
argument is two-fold: first, he argues that the hearing was unfair because DHC sent him a notice
of termination before having the hearing. Second, he argues that the hearing was inappropriate
because his subsidies could not have legally been terminated while he remained in the apartment.
        As to his first argument, Caswell correctly notes that 24 C.F.R. § 982.555(a)(2) requires that
“the PHA must give the opportunity for an informal hearing before the PHA terminates housing
assistance payments . . . .” However, here, DHC did not actually terminate Caswell’s benefits until
the day after the hearing. Therefore, the timing of the hearing with respect to the actual termination
of benefits was proper.
        Caswell’s second claim is not a procedural due process argument. Caswell is not claiming
that he was denied adequate process. To be sure, he is unable to point to what additional procedural
safeguards should have been provided to better protect his property interest. See Mathews v.
Eldridge, 424 U.S. 319, 335 (1976) (setting forth a three-part test for determining whether particular
procedures comport with due process). Caswell was permitted to conduct discovery, present
evidence, cross-examine witnesses, and be represented by counsel, at his own expense. 24 C.F.R.
§ 982.555(e). Instead of pointing to a procedural flaw in his hearing, Caswell claims that he was
improperly denied his property interest, despite the fact that he received process. This claim is
inconsistent with a procedural due process claim. The “Due Process Clause has never been
construed to require that the procedures used to guard against an erroneous deprivation of a
protectible ‘property’ or ‘liberty’ interest be so comprehensive as to preclude any possibility of
error.” Higgs v. Bland, 888 F.2d 443, 449 (6th Cir. 1989) (quoting Mackey v. Montrym, 443 U.S.
1, 13 (1979)). Accordingly, we AFFIRM the district court’s grant of summary judgment on this
claim.
                                                 III.
       For the foregoing reasons, we hereby AFFIRM the judgment of the district court.
