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Swift v. McKeesport Housing Authority

November 17, 2009

JAMES SWIFT, PLAINTIFF,
v.
MCKEESPORT HOUSING AUTHORITY DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

Pending before the court is the motion to dismiss (the "Motion") (Docket No. 14) filed on April 3, 2009, by defendant McKeesport Housing Authority ("MHA" or "defendant"). In the Motion defendant seeks to dismiss all the claims set forth in the complaint (Docket No. 2) filed, pro se, by James Swift ("Swift" or "plaintiff"), including the claims filed pursuant to 42 U.S.C. Section 1983 ("§ 1983"), asserting violations of, among others, the Due Process Clause of the Fourteenth Amendment and Section 8 ("Section 8") of the United States Housing Act ("USHA"), as amended, 42 U.S.C. § 4237(f). On April 10, 2009, plaintiff filed a response and new matter (Docket No. 17) to the Motion, including a request to appoint counsel. (Id.) After considering the parties' submissions, and for the reasons set forth below, the court will grant the Motion. Plaintiff is given leave to file an amended complaint within thirty days of the date of this opinion. The court, however, will deny with prejudice plaintiff's request for punitive damages.

II. Background*fn1

Plaintiff is a citizen of the United States and a resident of Allegheny County, Pennsylvania, who was eligible for and participated in the Housing Choice Voucher Program (the "voucher program") administered by defendant pursuant to Section 8 of the USHA and its implementing regulations at 24 C.F.R. pt. 982. (Compl. ¶¶ 8, 15, 17.) Defendant is a public housing authority ("PHA") and a public corporation. (Id. ¶ 16.) In Pennsylvania, the Section 8 voucher program is created and organized in accordance with the provisions of the Pennsylvania Housing Authorities Law, 35 PA. CONS. STAT. § 1541 et seq. (Id.)

Plaintiff alleges that, prior to the anniversary of plaintiff's 2006 recertification*fn2 for a Section 8 voucher, a MHA employee and the employee's relative expressed to plaintiff adverse and inflammatory remarks about plaintiff's faith and disabilities, made repeated false statements to authorities about plaintiff, and sent plaintiff a letter through an attorney expressing a desire to sue plaintiff. (Id. ¶ 18.)

On January 4, 2006, defendant mailed plaintiff a notice regarding plaintiff's yearly recertification application for the Section 8 voucher program. (Id. ¶ 19.) On January 6, 2006, plaintiff received the notice, with an instruction to return all forms to defendant by mail or in person by January 17, 2006. (Id.) Plaintiff telephoned defendant and was told that he would have plenty of time to comply, since MHA is required to send out two requests every year. (Id.)

On February 10, 2006, defendant mailed to plaintiff a final request for the reexamination information and directed plaintiff to supply his recertification application information within five days. (Id. ¶ 20.) Plaintiff claims that the five-day deadline did not afford him the minimal sixty-day compliance period. (Id.) On February 13, 2006, plaintiff delivered his recertification application to the place he believed to be MHA's front door, which was the same place he had delivered his recertification application the prior year. (Id. ¶ 21.) Defendant's surveillance video cameras recorded plaintiff's delivery on that date. (Id.) On February 16, 2006, MHA wrote plaintiff a letter denying receipt of the recertification application and terminated plaintiff from the Section 8 voucher program. (Id. ¶ 22.)

On February 18, 2006, plaintiff received defendant's notice of termination and immediately telephoned defendant. (Id. ¶ 23.) Defendant denied timely receipt of plaintiff's recertification application on February 15, 2006, but indicated receipt of plaintiff's recertification application on February 16, 2006. (Id.) Defendant told plaintiff that he should have telephoned and asked for more time. (Id.) On February 18, 2006, after communicating with defendant, plaintiff faxed MHA complete copies of the application and recertification information and requested that MHA internally investigate the whereabouts of his alleged timely delivered package. (Id. ¶ 24.)

On February 20, 2006, MHA mailed plaintiff a letter indicating that the only avenue of remedy was for plaintiff to request an informal hearing. (Id.) On February 21, 2006, plaintiff sent MHA a letter by facsimile requesting an informal hearing. Subsequently, plaintiff sent defendant several facsimiles and voice mails about his request to which MHA did not respond. (Id. ¶ 27.)

On March 3, 2006, plaintiff personally visited MHA's office and was told:

You didn't get it in, in time. You did it after Thursday. We are not a bank. The front doors have nothing to do with us. Those documents eventually got to us. They must be on time. You're lucky that we are a small and not a large PA. We deal with too many. There are too many on the waiting list. You did this before.

We have the camera tape. If you would have called, we could have extended the time. (Id. ¶ 28.) (internal quotation marks omitted). Defendant indicated that a panel of three to five people would make a decision. (Id.)

On March 9, 2006, an informal hearing was held and tape recorded at the office of MHA. (Id.) At the hearing plaintiff was questioned. He was not allowed, however, any opportunity to cross-examine or present supportive documentation. The same MHA personnel who accused plaintiff of untimely submitting his recertification application were in control of the hearing. (Id.) A review of MHA's time-stamped video tape affirmed plaintiff's delivery of the application on February 13, 2006. MHA asserted that plaintiff had been late in submitting documentation in the past and that it did not like the way plaintiff signed documents. (Id.) Defendant denied that the front door to the building had anything to do with MHA. (Id.)

At the end of the informal hearing, plaintiff asked to use the rest room and was instructed to leave the building by going out the back door and reentering the building through the front door. (Id. ¶ 29.) The front door of the building was in direct view of a MHA surveillance camera and had MHA notices in the window. There was a garbage can by the front door which had a MHA logo on it. There was nothing to indicate that the door did not belong to MHA. (Id.)

MHA indicated that a written determination would be mailed out within five days of the date of the informal hearing and claimed to have timely mailed its decision to two addresses. (Id. ¶¶ 31, 33.) Plaintiff maintains, however, that he did not receive MHA's letter of determination until April 26, 2006. (Id. ¶ 33, 35.) In the interim, plaintiff contacted the United States Postal Service to initiate a trace on the two missing letters from MHA. (Id. ¶ 34.) Plaintiff alleges that the letter he received from defendant on April 26, 2009 was back dated to March 14, 2006. (Id. ¶ 35.)

The letter of determination sent by MHA indicated that MHA terminated plaintiff from the Section 8 voucher program based, in part, on MHA's requirement to mail out two requests notices for information each year, and that the front door to the MHA building was not MHA's front door, but rather that of "Family Service Center." (Id.) Defendant did not notify plaintiff of any appellate procedure. (Id.) On April 27, 2006, plaintiff faxed and e-mailed to MHA a three-page letter asking twelve questions. (Id. at 37.) As of the date of the filing of the instant complaint, defendant had not responded. (Id. ¶ 38.)

Plaintiff argues that because MHA's regulations require MHA to initiate the process of reexamination ninety to one hundred twenty days before the anniversary date of March, he was not permitted the proper or the same amount of time allowed to other Section 8 voucher participants of different religions or who lack a disability and that his Section 8 benefits were terminated without providing him a fair and proper informal hearing. (Id. ¶ 8.) Plaintiff contends that defendant's actions demonstrate policies and practices that violate the USHA and its implementing regulations, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the Civil Rights Act of 1871, § 1983 and defendant's administrative plan. (Id. ¶¶ 2-9, 41.)

Plaintiff seeks declaratory and injunctive relief, restitution, compensatory and punitive damages, and recovery of attorney's fees arising from defendant's alleged policies and practices that plaintiff claims deprived him of property rights available to him under the Section 8 voucher program. (Id.¶ 10.) MHA's alleged policies and practices include: 1) not allowing plaintiff enough time to collect information and submit his recertification application by delaying required notices and shortening time allowances in violation of MHA's written regulations, 2) denying that MHS's front door has anything to do with MHA, 3) denying receipt of plaintiff's correspondence by MHA that was delivered to MHA's front door, 4) creating an unlawful architectural barrier by failing to have a mailbox, drop box, letter slot or other device to accept correspondence, 5) thwarting or ignoring telephone calls and facsimile transmissions, 6) ignoring plaintiff's request for impartial grievance procedures, including a proper grievance tribunal, 7) fabricating allegations against plaintiff at the grievance hearing subsequent to the single previous issue of the untimely delivery of the MHA application, 8) acting with bias, intimidation and discrimination against plaintiff at the grievance hearing, including use of a tribunal of people partial to MHA to hold the grievance hearing, 9) denying a timely written determination at the time of the hearing, 10) omitting notice of plaintiff's appellate rights, 11) hiring a local official to inspect plaintiff's home, 12) sharing plaintiff's protected personal and private information related to his health disabilities and religion with individuals, including employees of MHA and others, 13) fabricating and enforcing regulations outside the regulatory requirements of the Section 8 voucher program, and 14) terminating plaintiff's Section 8 voucher benefits before defendant resolved plaintiff's objections to the termination of his benefits as expressed in plaintiff's grievance proceedings. (Id. ¶¶ 2-7, 10, 43.)

Defendant filed a motion to dismiss all plaintiff's claims, which is the subject of this opinion.

III. Legal Standards

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits. When considering a motion to dismiss, the court accepts as true all factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") motion to dismiss, a complaint must provide "more than labels and conclusions." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level" and sufficient to state a claim for relief that is plausible on its face. Id. at 555-56. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a "probability requirement" but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the ...


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