Opinion
Case No. 04-4069-JAR.
October 13, 2004
MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT'S MOTION TO DISMISS
Plaintiff Lawrence L. Kelly, proceeding pro se and in forma pauperis, seeks monetary damages from the defendant, Topeka Housing Authority. Defendant has moved to dismiss this action (Doc. 14), for failure to state a claim upon which relief can be granted. For the following reasons, the Court grants defendant's motion to dismiss.
I. Rule 12(b)(6) Standards
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true."
Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citation omitted).
Mounkes v. Conklin, 922 F.Supp. 1501, 1506 (D. Kan. 1996) (quotation omitted).
On a Rule 12(b)(6) motion, the court judges the sufficiency of the complaint, accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. The court construes the allegations in the light most favorable to the plaintiff. These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." "[I]f the facts narrated by the plaintiff `do not at least outline or adumbrate' a viable claim, his complaint cannot pass Rule 12(b)(6) muster." Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interest of justice.
Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987).
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted).
Mounkes, 922 F.Supp. at 1506 (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988) (quotation omitted)).
Id.
Pro se defendant
Because plaintiff appears pro se, the court must remain mindful of additional considerations. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers. Thus, if a pro se plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, it [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."
Hall v. Bellmon, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Id.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
In addition, 28 U.S.C. § 1915(e)(2) provides that an in forma pauperis action shall be dismissed "at any time if the court determines that":
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
"[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." However, the court may not dismiss an in forma pauperis complaint "simply because the court finds the plaintiff's allegations unlikely." Generally, "a complaint is legally frivolous if it is based on an `indisputably meritless legal theory' such as an `infringement of a legal interest which clearly does not exist.'"
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Id.
Neitzke v. Williams, 490 U.S. 319, 327 (1989).
II. Facts as Alleged in Plaintiff's Complaint
Plaintiff filed a one page complaint with exhibits. According to the complaint, plaintiff was living in the Oakwood Manor Apartments with his son, Michael, where he relied on a Section 8 (low-income housing) voucher for his monthly rental payment. On April 21, 2004, Michael was arrested and charged with drug possession, failure to pay a drug tax, possession of drug paraphernalia and obstruction of justice. Because of this arrest, defendant terminated plaintiff's Section 8 benefits. Plaintiff's rent payments to Oakwood Manor lapsed; and plaintiff was evicted.
At plaintiff's request, on May 28, 2004, defendant conducted an informal grievance hearing on the termination of plaintiff's Section 8 benefits. The grievance officer upheld defendant's decision to terminate the benefits. The Complaint alleges that the termination was improper because plaintiff's son Michael was never "convicted" of any drug charges. Rather, Michael pleaded not guilty and was placed on diversion for the drug charges. The Complaint further alleges that defendant terminated plaintiff's Section 8 benefits in retaliation for plaintiff having previously filed housing discrimination complaints.
III. Analysis
The federal Section 8 Existing Housing Program makes assistance payments to private landlords in order to help low-income persons obtain housing. Generally a Public Housing Agency (PHA), such as the defendant, pays a portion of a tenant's rent directly to the landlord, and the tenant pays the rest. When a PHA enters into a contract to make rent payments on behalf of a tenant, the landlord is required to agree that "during the term of the lease, . . . any drug-related criminal activity on or near such premises, engaged in by a tenant of any unit, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." The PHA also has the right to terminate a tenant's assistance payments "if the PHA determines that any family member has violated the family's obligation under § 982.551 not to engage in any drug-related criminal activity."
42 U.S.C. § 1437f.
Id. at § 1434f (b), (c), (o).
Id. at § 1434f (d)(1).
Liberally construed in plaintiff's favor, the Complaint claims that: defendant terminated plaintiff's benefits without procedural due process, in violation of 42 U.S.C. 1983; defendant improperly terminated plaintiff's Section 8 benefits; the termination violated plaintiff's civil rights pursuant to 42 U.S.C. 1983; and defendant violated both 42 U.S.C. 1983 and the Fair Housing Act (FHA), because defendant terminated the benefits in retaliation for plaintiff's previously filed complaints of housing discrimination. The Court addresses each of these arguments in turn, and concludes that the Complaint fails to state a claim for relief on any of these grounds.
Codified as amended by the Fair Housing Act Amendments of 1988 at 42 U.S.C. § 3601 et seq.
Procedural Due Process
Plaintiff's property interest in continued Section 8 benefits is the type of interest given the constitutional protection of procedural due process. Once a constitutionally protected interest is established, the process for depriving plaintiff of that interest must be evaluated to determine whether it is constitutionally adequate. Here, it is undisputed that defendant terminated plaintiff's Section 8 benefits after conducting a grievance hearing in which plaintiff participated. It is undisputed that plaintiff received notice of the termination and an opportunity to respond, in a hearing. In fact, the hearing was granted at plaintiff's request. While the Complaint challenges the defendant's decision, it does not claim that the hearing and process was deficient. Thus, plaintiff's Section 1983 claim for denial of procedural due process fails to state a claim for relief.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
Zinermon v. Burch, 494 U.S. 113, 126 (1990).
Keys Youth Servs. Inc. v. City of Olathe, Kansas, 52 F. Supp. 2d 1284, 1308 (D. Kan. 1999) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)), rev'd in part, 248 F.3d 1267 (10th Cir. 2001).
Claim for Improper Termination of Benefits
Because plaintiff challenges the defendant's administrative decision to terminate benefits, pursuant to the Fair Housing Act and its regulations, this Court reviews the propriety of that administrative decision. As defendant argues, this Court is only required to apply de novo review if the defendant's challenged action is inconsistent with federal housing regulations. This Court finds that the termination was consistent with the federal housing regulations. While plaintiff argues that the termination was improper because his son was not convicted of drug related criminal activity, the regulations do not require a conviction. The regulations state that evidence of criminal activity must be based only on a preponderance of the evidence "regardless of whether the household member has been arrested or convicted for such activity." The Complaint states that plaintiff's son was arrested and placed on diversion for drug charges; and it does not deny that plaintiff's son was engaged in drug related criminal activity. Thus, the Complaint demonstrates that plaintiff's son was engaged in drug-related criminal activity justifying termination of Section 8 benefits.
Baldwin v. Housing Authority of Camden, 278 F. Supp. 2d 365, 374 (D.N.J. 2003) (citing Ritter v. Cecil County, 33 F.3d 323, 327-28 (4th Cir. 1994)).
Id. at § 982.553 (2004).
Moreover, because the termination was consistent with the federal housing regulations, this Court must give reasonable deference to the defendant's termination. A state agency's action "should be upheld unless it is found to be arbitrary or capricious." Nothing in the Complaint demonstrates any arbitrary or capricious action by the defendant.
Id. (citing Clark v. Alexander, 85 F.3d 146, 152 (4th Cir. 1996)).
Retaliation in violation of Fair Housing Act or Section 1983
The Complaint also states that defendant terminated plaintiff's Section 8 benefits in retaliation for plaintiff having previously filed housing discrimination complaints. This claim is actionable under 42 U.S.C. § 1983. While Section 1983 does not itself create any substantive rights, it grants an avenue of relief to a plaintiff who has been deprived of an existing constitutional or federal statutory right by a person acting under color of state law. A Section 1983 claim may be based on a deprivation of the federal right to fair housing under the FHA.
Gallegos v. City and County of Denver, 984 F.2d 358, 362 (10th Cir. 1993).
Id.
This claim is also actionable as an independent claim under the FHA. For the FHA makes it unlawful to "otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." It also prohibits discrimination "against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." The FHA states that "[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice . . . to obtain appropriate relief with respect to such discriminatory housing practice or breach." Discriminatory housing practice is defined as "an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title."
Id.
Id. at § 3604(b).
Id. at § 3613.
Id. at § 3602(f).
Plaintiff's claim is most consistent with one under 42 U.S.C. § 3617, which states that "[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person . . . on account of his having exercised or enjoyed . . . any right granted or protected by section 3603, 3604, 3605, or 3606 of this title." In order to prove a prima facie case under § 3617, plaintiff must show that "(1) [he] is a member of a protected class under the Fair Housing Act; (2) [he] exercised or enjoyed a right protected by Sections 3603 through 3606 . . .; (3) intentional discrimination motivated defendant['s] conduct, at least in part; and (4) defendant['s] conduct constituted coercion, intimidation, a threat, or interference on account of plaintiff having exercised . . . a right protected under Sections 3603 through 3606."
Id. at § 3617.
Zhu v. Countrywide Realty Co. et. al, 165 F. Supp. 2d 1181, 1196 (D. Kan. 2001).
Construing the Complaint liberally in plaintiff's favor, it states that he previously had filed complaints of housing discrimination. The filing of such complaints constitutes the exercise of a right protected by Sections 3603 through 3606. While the Complaint does not state that these complaints were against the defendant or known to the defendant, the Complaint states that the defendant terminated plaintiff's Section 8 benefits on account of his prior exercise of the right to file housing discrimination complaints. The Complaint further states that the defendant interfered with, as well as possibly deterred plaintiff from the future exercise of such rights. For purposes of this motion, the Court construes the Complaint to state that the defendant had knowledge of plaintiff's prior protected activity. The Complaint clearly fails, however, to state that plaintiff is a member of any protected class mentioned in the FHA. In the exhibits attached to the Complaint plaintiff suggests that the arrest of his son was based on racial profiling, yet the Complaint does not state that plaintiff is a member of any protected class. Nor does the Complaint state that the defendant terminated plaintiff's Section 8 benefits because of plaintiff's race, color, religion, sex, familial status, or national origin. In short, the Complaint fails to assert any facts supporting a claim that defendant terminated benefits because of plaintiff's status, or retaliated against plaintiff for his exercise of rights as a member of a protected class. "Without more specific allegations regarding . . . how the defendant discriminated against him by taking action they apparently were allowed to take under federal regulations, plaintiff has failed to state a claim that [the defendant] violated his constitutional rights." IT IS THEREFORE ORDERED BY THE COURT that defendant's motion to dismiss (Doc. 14) is GRANTED and the action is DISMISSED WITHOUT PREJUDICE.
Pl.'s Compl. at 1.
See Allmond v. Section 8 Dep't., et al, No. 03-894-A, 2003 WL 23784041, *2 (E.D. Va. Sept. 25, 2003).
Id.
IT IS SO ORDERED.