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Swift v. McKeesport Housing Authority

June 22, 2010

JAMES SWIFT, PLAINTIFF,
v.
MCKEESPORT HOUSING AUTHORITY; JAMES BREWSTER, INDIVIDUALLY AND AS CHAIRMAN, BOARD OF DIRECTORS, MCKEESPORT HOUSING AUTHORITY; GEORGEANNE CHUCHLA, INDIVIDUALLY AND AS MANAGER, MCKEESPORT HOUSING AUTHORITY; DIANE RAIBLE, INDIVIDUALLY AND AS ADMINISTRATIVE OFFICER, MCKEESPORT HOUSING AUTHORITY; SHARON SANETSKY-KISH, INDIVIDUALLY AND AS SECTION 8 COORDINATOR, MCKEESPORT HOUSING AUTHORITY; SHARIL TOMOVCSIK, INDIVIDUALLY AND AS SECTION 8 COORDINATOR, MCKEESPORT HOUSING AUTHORITY; REGIS MCLAUGHLIN, INDIVIDUALLY AND AS INSPECTOR, MCKEESPORT HOUSING AUTHORITY, DEFENDANTS.



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

MEMORANDUM OPINION

I. Introduction

Pending before the court is the motion to dismiss plaintiff's amended complaint (the ―Motion‖) (Docket No. 24) filed on February 10, 2010, by defendants McKeesport Housing Authority (―MHA‖); James Brewster, individually and as Chairman of the Board of Directors of MHA (―Brewster‖); Georgeanne Chuchla, individually and as a manager for MHA (―Chuchla‖); Diane Raible, individually and as an administrative officer for MHA (―Raible‖); Sharon Sanetsky-Kish, individually and as Section 8 coordinator for MHA (―Sanetsky-Kish‖); Sharil Tomovcsik, individually and as a Section 8 coordinator for MHA (―Tomovcsik‖); and Regis McLaughlin, individually and as an inspector for MHA (―McLaughlin‖, and collectively with Chuchla, Raible, Sanetsky-Kish, and Tomovcsik, the ―individual defendants,‖ and together with MHA, the ―defendants‖). In the Motion defendants seek to dismiss all the claims set forth in the amended complaint (Docket No. 20) filed by James Swift (―plaintiff‖), including claims filed pursuant to 42 U.S.C. § 1983 (―§ 1983‖), asserting violations of the Due Process Clause of the Fourteenth Amendment and the First Amendment, as well as claims under Article 1, § 10, Clause 1 of the United States Constitution. On March 9, 2010, plaintiff filed a response and brief in opposition to the Motion. (Docket Nos. 26 and 27.) On March 26, 2010, defendants filed a reply brief. (Docket No. 30.) After considering the parties' submissions, and for the reasons set forth below, the court will grant the Motion with prejudice in part and without prejudice in part.

II. Factual 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 MHA, pursuant to Section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f, as amended (―Section 8‖). (Am. Compl. ¶ 14.) Plaintiff is a ―Born Again Christian‖ and is legally declared disabled by the United States Social Security Administration. (Id.)

MHA is a public housing authority and a public corporation. (Id. ¶ 15.) 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.) Brewster is the Chairman of the Board of Directors of MHA; Chuchla is a manager for MHA; Raible is an administrative officer for MHA; Sanetsky-Kish is a Section 8 coordinator for MHA; Tomovcsik is a Section 8 coordinator for MHA; and McLaughlin is an inspector for MHA and a Chairman of the Board of Directors for the Municipal Authority of the City of McKeesport. (Id. ¶¶ 16-21.)

During the approximately ten years that plaintiff received Section 8 benefits MHA required plaintiff to participate in an annual recertification procedure to ascertain plaintiff's continuing eligibility for those benefits. (Id. ¶¶ 25, 26.) Plaintiff alleges that prior to the anniversary of his 2006 recertification for his Section 8 voucher, Chuchla harassed plaintiff, made derogatory remarks about his faith and health disabilities, lodged false complaints to authorities about him, and threatened to move him from his current residence. (Id. ¶ 28.)

On or about January 4, 2006, Sanetsky-Kish, on behalf of MHA, mailed plaintiff a notice regarding plaintiff's yearly recertification application for the Section 8 voucher program. (Id. ¶ 31.) On January 6, 2006, plaintiff received the notice, with an instruction to return all forms to MHA by mail or in person by January 17, 2006. (Id.) Plaintiff telephoned the offices of MHA and was told that he would have plenty of time to comply, since MHA is required to send out two requests every year. (Id. ¶ 32.)

Pursuant to the January 4, 2006 letter, plaintiff was told his home would have to be re-inspected. (Id. ¶ 34.) Plaintiff alleges that he objected to inspection by McLaughlin, as plaintiff believed McLaughlin, as a public official, had a conflict of interest. (Id. ¶¶ 37, 38.) Plaintiff maintains that he was retaliated against and deprived of his Section 8 benefits for making the objections. (Id.)

On or about February 10, 2006, Tomovcsik, on behalf of MHA, mailed to plaintiff a final request for the recertification information and directed plaintiff to supply the necessary paperwork within five days. (Id. ¶ 39.) On February 13, 2006, plaintiff attempted to comply with MHA's request by hand delivering and dropping off the completed application to what plaintiff believed to be the front door of MHA's offices. (Id. ¶ 40.) Plaintiff alleges this was the same door to which he dropped off his recertification materials in the prior year. (Id. ¶ 41.) MHA's surveillance video cameras recorded plaintiff's delivery on that date. (Id. ¶ 56.)

On February 16, 2006, Tomovcsik sent plaintiff a letter denying receipt of the recertification application and stating that as of February 28, 2006 plaintiff's Section 8 benefits would be terminated. (Id. ¶ 42.) Plaintiff received this letter on February 18, 2006. (Id.) He immediately telephoned MHA's offices and was told that MHA did not receive his application until one day after the February 15, 2006 deadline and that plaintiff should have called and requested more time. (Id. ¶ 44.) On or about February 18, 2006, after his phone conversation with a MHA representative, plaintiff faxed MHA completed copies of the application and requested that MHA internally investigate the whereabouts of the documents he submitted on February 13, 2006. (Id. ¶ 45.)

On February 20, 2006, MHA mailed plaintiff a letter indicating that the only avenue of remedy was for plaintiff to request a grievance hearing. (Id. ¶ 46.) On February 21, 2006, plaintiff sent MHA a letter via facsimile requesting a grievance hearing. (Id. ¶ 47.) On or about February 28, 2006, on behalf of MHA, Raible sent plaintiff a letter granting him a grievance hearing on March 9, 2006. (Id. ¶ 48.) In order to prevent eviction, plaintiff alleges he entered a loan agreement with a social acquaintance in order to pay the balance of his rent that would normally be covered by the voucher. (Id. ¶ 49.)

On March 3, 2006, plaintiff visited MHA's offices and was told by a staff member that his application was received by MHA, but not on time. (Id. ¶ 50.) Plaintiff was also told that the door to which he delivered his recertification application for the past two years was not a part of MHA's offices and that if plaintiff had called, MHA would have given him more time. (Id.)

On March 9, 2006, a grievance hearing was held by a panel made up of Raible, Tomovcsik, and Sanetsky-Kish. (Id. ¶ 52.) At the hearing plaintiff was questioned regarding the nature and extent of his physical disabilities and why he is able to receive Social Security disability payments. (Id. ¶ 53.) Plaintiff was not allowed any opportunity to present supportive documentation or witnesses in his defense to show that he had previously submitted timely and completed recertification applications, despite the fact that members of the panel accused plaintiff of being late with his recertification materials in the past. (Id. ¶¶ 54, 55.) Members of the panel asserted that the door to which plaintiff had delivered his application was not a part of MHA's offices. (Id. ¶ 56.) Plaintiff asked to use the restroom at the meeting and was told to exit the building through the back door and re-enter through the front door. The front door where plaintiff delivered his application had MHA notices in the window, a garbage can with a MHA logo on it, and was in direct view of MHA's surveillance cameras. (Id. ¶ 57.)

At the end of the hearing, plaintiff was told that MHA would issue a written decision within five days, but plaintiff maintains that he did not receive MHA's letter of determination until April 26, 2006. (Id. ¶¶ 58, 59.) Plaintiff alleges this letter was back-dated to March 14, 2006, and failed to provide any information with respect to appellate procedures available to plaintiff. (Id. ¶ 59.) The letter denied plaintiff's request to reinstate his Section 8 voucher. (Id.)

Plaintiff maintains that MHA routinely terminates Section 8 benefits before the initiation or conclusion of timely requested grievance hearings and he alleges that MHA asserted that it will continue to do so. (Id. ¶ 60.) As an example of such routine termination decisions, plaintiff refers to the case of Lawanna Davis, on behalf of herself and others similarly situated, versus the McKeesport Housing Authority, in the United States District Court for the Western District of Pennsylvania, Civil Action No. 07-198. (Id. ¶ 70.) That action was filed February 16, 2007, and was statistically closed on May 22, 2007. In the complaint, Lawanna Davis alleged:

Ms. Davis, who, for more than five years has been eligible for and has participated in the MHA's Section 8 Housing Choice Voucher program, is a subject of [the MHA's] unlawful and unconstitutional policy and practice. Although Ms. Davis properly and timely challenged the MHA's decision to terminate the Section 8 benefits, and although Ms. Davis properly and timely requested that the MHA schedule an informal grievance hearing to permit Ms. Davis the opportunity to challenge the legal and factual merits of the MHA's determination, MHA nonetheless summarily terminated Ms. Davis' Section 8 housing subsidy payments to Ms.

Davis' landlord for future rent, without first having conducted the informal grievance hearing and without the grievance first being decided by the duly appointed hearing officers. (Compl. (Docket No. 1, Ex. 2) ¶ 3, Davis v. McKeesport Hous. Auth., No. 07-198 (W.D. Pa. filed February 16, 2007).) Lawanna Davis alleged that she participated in MHA's Section 8 voucher program without incident until 2006. (Id. ¶¶ 3, 24.) On November 7, 2006, she received a letter from MHA indicating that she had an outstanding balance. (Id. ¶ 25.) On December 5, 2006, she received a final notice, and on January 11, 2007, she received a letter advising her that Section 8 assistance would terminate effective January 30, 2007. (Id. ¶¶ 29, 31.) After termination, MHA refused to restore Lawanna Davis's benefits, even though she had not yet been afforded a grievance hearing. (Id. ¶¶ 37, 38.)*fn2

In this case, plaintiff similarly contends that MHA's policies and practices deprived him of his right to Section 8 benefits in violation of the First and Fourteenth Amendments to the United States Constitution, Section 8, regulations implementing the United States Housing Act and MHA's administrative plan, and interfered with his private leasehold contract in violation of Article 1, § 10, Clause 1 of the United States Constitution. (Id. ¶¶ 61, 69.)

Plaintiff seeks declaratory and injunctive relief, consequential damages, costs, expenses and attorney's fees, and any additional relief that is just. (Id. ¶ 71.) Plaintiff asserts that all defendants, individually and in collusion with each other, violated his rights by engaging in the following actions: 1) unconstitutionally enforcing MHA's longstanding practice of terminating Section 8 benefits before resolution of timely requested grievance hearings; 2) MHA's failing to follow its own written grievance procedures requiring the resolution of proceedings before the termination of benefits; 3) unconstitutionally enforcing MHA's longstanding practice of failing to give Section 8 beneficiaries adequate notice of, and time to comply with, annual recertification procedures; 4) MHA's failing to appoint an impartial hearing officer over plaintiff's grievance hearing; 5) unconstitutionally enforcing MHA's longstanding practice of failing to abide by federal guidelines with respect to housing inspectors' conflicts of interest; 6) unconstitutionally denying plaintiff's recertification despite definitive evidence that plaintiff complied with application procedures in a timely manner; 7) denying plaintiff's recertification on account of his religious views; 8) denying plaintiff's recertification on account of his mental and physical disabilities; 9) MHA's failing to supervise and train its employees to ensure that Section 8 programs were administered in good faith and in accordance with the laws and Constitution of the United States; 10) Brewster exhibiting knowledge or deliberate indifference to the above constitutional violations; and 11) acting vengefully and with bias toward plaintiff in violation of his constitutional rights. (Id. ¶ 66.)

III. Procedural Background

Plaintiff filed his original complaint pro se on February 25, 2008, naming only MHA as a defendant. (Docket No. 2.) MHA filed a motion to dismiss with this court on April 3, 2009. (Docket No. 14.) This court granted defendant's motion to dismiss in a memorandum opinion on November 17, 2009, dismissing plaintiff's claims without prejudice and giving leave to plaintiff to file an amended complaint. (Docket No. 18.) Plaintiff, by and through counsel, filed an amended complaint on December 16, 2009, which, in addition to naming MHA as a defendant, sued the individual defendants. (Docket No. 20.) Defendants filed a motion to dismiss the amended complaint on February 17, 2010, and plaintiff responded on March 9, 2010. (Docket Nos. 24, 26.) Defendants and plaintiff filed briefs in support of and in opposition to the Motion, and defendants filed a reply brief to plaintiff's brief in opposition. (Docket Nos. 25, 27, 30.) The Motion is the subject of this opinion.

IV. Legal Standards

In deciding a motion to dismiss the court is to view the facts alleged in the complaint as true and to draw reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). The court does not base its decision on whether it appears likely that the plaintiff will prevail on the merits. Id. The factual allegations pleaded by a plaintiff need only be a short and plain statement of the claim showing that the pleader is entitled to relief and giving fair notice to the defendant of what the claim is and the grounds upon which it rests. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Though detailed factual allegations are not required 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‖ and a ―formulaic recitation of the elements of a cause of action will not do.‖ Twombly, 550 U.S. at 555. ―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).

This ―plausibility standard‖ does not, however, heighten the pleading requirements of Federal Rule of Civil Procedure 8(a)(2). Twombly, 550 U.S. at 569 n.14. But it does ask ―for more than a sheer possibility that a defendant has acted unlawfully.‖ Iqbal, 129 S.Ct. at 1949. In order to cross over the ―line between possibility and plausibility‖ the complaint must plead facts that are more than ―merely consistent with‖ a defendant's liability. Twombly, 550 U.S. at 557. ―[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‗show[n]'-‗that the pleader is entitled to relief.'‖ Iqbal, 129 S.Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)).

Two principles underlie Twombly, and this court's assessment of a motion to dismiss. First, a court need not accept as true allegations that amount to legal conclusions. Iqbal, 129 S.Ct. at 1949. ―Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.‖ Id. (citing Twombly, 550 U.S. at 555). Second, a complaint must state a plausible claim for relief in order to survive a Rule 12(b)(6) motion. Id. at 1950. Ascertaining whether a plausible claim for relief has been pled is a context-specific task that requires the court to draw on its judicial experience and common sense. Id.

Generally, courts are to notify plaintiffs that they have leave to amend their complaints unless the amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (reversing district court for failing to grant plaintiff right to amend when the district court did not specifically find that granting leave to amend would be inequitable or futile). Allowing for amendment is consistent with Rule 15(a) of the Federal Rules of Civil Procedure, which provides ―leave [to amend] shall be freely given when justice so requires.‖ A court, however, may decide to deny leave to amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and futility. In re Burlington Coat Factory Litig., 114 F.3d 1410, 1434 (3d Cir.1997). The standard of legal sufficiency set forth in Federal Rule of Civil Procedure 12(b)(6) determines whether a proposed amendment would be futile. In re Burlington Coat Factory Litig., 114 F.3d at 1434. An amendment is futile where the ...


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