Opinion
Civil Action No. 3:18-0057-RMG-BM
10-17-2018
Eugene P. Harrison, a/k/a Eugene Paul Harrison, Sr., Plaintiff, v. Jennifer C. Kennedy, HCV Senior Specialist Individually and/or in her Official Capacity as an Employee of the Sumter Housing Authority, Defendant.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, asserting a claim relating to the Housing Choice Voucher Program, also or formerly known as the Section 8 Housing Program - a federal program created to help low income families obtain affordable housing. See 42 U.S.C. § 1437f. The named Defendant is a case worker with the Sumter Housing Authority (SHA), a public housing agency that administers the Section 8 Housing Choice Voucher Program in Sumter County, South Carolina.
The pro se Plaintiff is a frequent filer of civil litigation in this Court, having filed at least twenty cases over the last seventeen years. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)[a federal court may take judicial notice of the contents of its own records].
The Defendant filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on August 10, 2018. As the Plaintiff is proceeding pro se, a Roseboro Order was entered by Court on August 14, 2018 advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to adequately respond, the Defendant's motion may be granted, thereby ending his case. Plaintiff thereafter filed a response in opposition to the Defendant's motion on August 17, 2018, which was then supplemented by an additional filing on August 20, 2018. The Defendant filed a reply on August 24, 2018, to which Plaintiff filed two sur replies on September 5, 2018 and September 10, 2018.
The Defendant's motion is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e) and (g), D.S.C. The Defendant has filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff alleges in his Complaint that on October 18, 2017 he was issued a Section 8 Choice Voucher and given sixty days to find housing for him and his family. Plaintiff alleges that he thereafter found housing on December 16, 2017, signed a tenancy agreement with the homeowner, and paid a deposit. Plaintiff alleges that he thereafter returned the signed tenancy form on December 16, 2017, but that the Defendant Kennedy refused to approve his voucher, "leaving me and my family homeless". Plaintiff further alleges that he is a diabetic and that his wife had to do all the paperwork and find the home since his "diabties (sic) got bad", and that he is on disability (apparently Social Security disability). Plaintiff seeks 4.75 million dollars in damages, to include punitive damages, due to the Defendant's refusal "to rent the home we found before the expiration of the Section 8 Choice Voucher 1 that Plaintiff had received in October 2017 this year". See generally, Plaintiff's Complaint.
In support of summary judgment in the case the Defendant has submitted an affidavit attesting that she is a Senior Case Worker with the SHA, where she was assigned to work on the Plaintiff's application to receive Section 8 housing. Kennedy attests that the SHA is a public housing agency that administers the Section 8 Housing Choice Voucher Program, which is funded through the United States Department of Housing and Urban Development (HUD). Kennedy attests that Plaintiff initially applied for and received a voucher from the South Carolina State Housing Authority, and thereafter asked for his voucher to be transferred to the SHA so that he could attempt to use the voucher in Sumter County. See also Kennedy Affidavit, attached Exhibit B [Voucher]. Kennedy attests that vouchers allow individuals to look for qualified housing, but that Sec. 8 is a first come first serve assistance program, and that there is no right to any type of due process hearing if the individual is denied housing. Kennedy further attests that Plaintiff's voucher was issued on October 18, 2017.
Kennedy attests that as part of the application process all adult residents listed on the application are required to attend an orientation session that explains in detail the rules of the Housing Choice Program, and that Plaintiff and his wife both attended the program. See also Kennedy Affidavit, attached Exhibit A [Orientation Notification Letter]. Kennedy further attests, and Defendant's attached Exhibit B [Plaintiff's Voucher] confirms, that Plaintiff's family had been determined to be eligible to participate in the House Choice Voucher Program. If an owner agreed to lease a housing unit to the Plaintiff, the SHA would then enter into a Housing Assistance Payments [HAP] contract with the owner to make monthly payments to the owner to help the family pay the rent, if the SHA approved the housing unit. Defendant's Affidavit, ¶ 7; attached Exhibit B [Voucher], Sec. 1, ¶ A, p. 1. However, the voucher issued to the Plaintiff further specifically provided that, while the SHA expects to have money available to enter into a HAP contract with the owner if the family finds an approvable unit, the SHA is "under no obligation to the family, to the owner, or to any other person to approve a tenancy. The [SHA] does not have any liability to any party by issuance of this voucher". See Attached Exhibit B [Voucher], Sec. 2, ¶ A, p. 1. The voucher further specifically advised that it "does not give the family any right to participate in the [SHA's] Housing Choice Voucher Program. The family becomes a participant in the [SHA's] Housing Program when the HAP contract between the [SHA] and the owner takes effect". Id.
Finally, the voucher also sets forth that if Plaintiff found a suitable unit where an owner was willing to participate in the program, he was required to give the SHA the Request for Tenancy Approval signed by the owner and the family, along with a copy of the Lease including the HUD prescribed Tenancy Addendum. The voucher further states, in bold writing, "Note: Both documents must be given to the [SHA] no later than the expiration date stated in Item 3 or 4 on top of Page One of this voucher" (bold in original), with the expiration date shown on the voucher being "12/17/2017" (bold in original). See attached Exhibit B [Voucher], Sec. 3, ¶ A, p. 2; see also Id., p 1. The voucher also specifically provided that it would expire on December 17, 2017 "unless the family requests an extension in writing and the [SHA] grants a written extension of the voucher in which case the voucher will expire on the date stated in Item 4. At its discretion, the [SHA] may grant a family's request for one or more extensions of the initial term". Attached Exhibit B [Voucher], Sec. 6, p. 3. However, Kennedy attests that Plaintiff did not return his Request for Tenancy Approval to SHA until December 18, 2017 at 12:23 p.m., which was after his voucher had expired. See Defendant's Affidavit, attached Exhibit D [Envelope], p. 1 (showing stamped date and receipt time of "DEC 18 pm 12:29"). Kennedy attests that under the terms of the voucher and HUD rules, Plaintiff was only an applicant for housing assistance, and that when an applicant does not timely complete and submit their application for housing assistance, the available funds go to other applicants who did properly and timely submit an application, on a first come, first serve basis.
With respect to Plaintiff possibly receiving an extension on his voucher, Kennedy attests that SHA policy provides that applicants may request up to two, thirty day, extensions of the original voucher expiration date, if any of the following circumstances exist: 1) you are hospitalized or under a doctor's written order to limit activity; 2) you are full time employed, full time student or engaged in a combination of employment and education that exceeds thirty hours per week and would be prohibited from looking for housing during normal business hours; 3) you require a reasonable accommodation in the housing opportunity, such as ramps, rails, special features for the physically challenged, etc.; or 4) you are considered hard to house because of family size. Kennedy attests that SHA's policy further provides that a person with disabilities requiring special accommodations may request the maximum 120 day term at the date of issue of the voucher. However, the SHA is not obligated to grant any requests for extensions that is received less than ten days prior to the expiration date of the voucher, or is not accompanied by documentation in support of the request for extension. See also Defendant's Affidavit, attached Exhibit C [SHA Extension Policy].
The SHA policy states: "If the family includes a person with disabilities and the family requires an extension due to the disability, the Housing Authority will grant an extension allowing the family the full 120 calendar days search time. If the Housing Authority determines that the additional search time would be a reasonable accommodation, it will grant the additional search time." See Administrative Plan, Sec. 6.4, p. 45. Defendant's Affidavit, ¶ 10.
Kennedy attests that Plaintiff was informed that any request for an extension of his voucher had to be submitted to the initial issuing authority (the South Carolina State Housing Authority), and that if he did so he should notify the SHA of the request. Moreover, Kennedy attests that if Plaintiff had requested an extension from the South Carolina State Housing Authority, the Authority would have notified SHA of the request. However, neither Plaintiff nor the South Carolina State Housing Authority ever notified the SHA that Plaintiff had ever requested an extension to his voucher. Kennedy further attests that Plaintiff never notified the SHA of any claimed disability, nor did Plaintiff ever request an accommodation (or extension of time) for any claimed disability or otherwise submit the necessary documentation in support of such an accommodation based upon a disability. Even so, Kennedy attests that Plaintiff is free to submit new applications for Housing assistance with any state housing authority, including the SHA. See generally, Defendant's Affidavit, with attached exhibits. Kennedy has also submitted copies of the SHA Administrative Plan, setting forth the Housing Choice Voucher rules and requirements. See Defendant's Exhibit [attached to motion for summary judgment].
Kennedy has attached as Exhibit E to her affidavit copies of the forms Plaintiff signed acknowledging receipt of his notice of right to reasonable accommodation, which reflect that no accommodations were being requested. See also Defendant's Affidavit, attached Exhibit E [Notice Forms dated and signed September 29, 2017].
As an attachment to his response in opposition to the Defendant's motion, Plaintiff has submitted an affidavit in which he attests that the Sec. 8 Choice Voucher Program provides a "right to look" for qualified housing, and that (consistent with Defendant's Affidavit) he was issued a voucher on October 18, 2017 that had an expiration date of December 17, 2017. Plaintiff does not appear to deny that he failed to provide his Request for Tenancy Approval to the SHA by the December 17, 2017 deadline, instead arguing in his affidavit that finding a residence within the allowed time "should be honored" (even if the Request for Tenancy Approval is submitted late), and that the Defendant's failure to do so should be deemed a violation of the Fair Housing Act. Plaintiff also argues in his affidavit that he is a "disabled" person protected by the "Social Security Protection Act Law", and that the Defendant therefore willingly refused to accept a voucher not only from someone qualified for Section 8 Housing under the applicable HUD policy, but also a person protected by Social Security disability law. See generally, Plaintiff's Affidavit.
Plaintiff has also attached copies of his voucher (showing an issuance date of October 18, 2017), a copy of the Tenant Lease Agreement he signed with the owner of a housing unit located on Mooneyham Road in Sumter on December 16, 2017, a copy of the same receipt document submitted as an exhibit by the Defendant showing that the Request for Tenancy Approval was received by the SHA on December 18, 2017 at 12:29 p.m., a copy of what appears to be a letter (presumably to the SHA) from the Plaintiff thanking the SHA for helping him (which was apparently received by the SHA on January 9 or 10, 2018), a copy of a response to a Freedom of Information Act Request dated March 22, 2018, a copy of a Social Security supplemental income payment notification letter addressed to the Plaintiff dated May 7, 2018 showing that Plaintiff received supplemental security income, and a copy of a front sheet from a funeral service program (presumably for Plaintiff's father) showing a funeral held on December 2, 2017.
Discussion
Summary judgment shall be rendered forthwith if 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 judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while the Federal Court is charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the arguments and evidence presented, the undersigned finds and concludes for the reasons set forth hereinbelow that the Defendant is entitled to summary judgment in this case.
First, the housing voucher that had been provided to the Plaintiff only allowed Plaintiff to look for potential qualifying housing under the Section 8 program. It did not entitled him to housing funding, nor did it even make him a participant in the Housing Choice Voucher Program (also known as the Section 8 Program). See 24 C.F.R. § 982.4(b) [Noting that a family becomes a participant in the Housing Program on the effective date of the first housing assistance payments contract executed by the Housing Authority for the family (the first day of the initial lease term) and that a family that has merely applied for admission to a program is not yet a "participant" in the program]; cf. Jones v. Grassiano, No. 12-3314, 2013 WL 1459188, * 2 (D.Md. Apr. 10, 2013) [Granting defendant's motion to dismiss, finding that there was no entitlement of an individual to receive a Section 8 voucher as opposed to other forms of public housing assistance because the statutory scheme (see Section 1437f (o)(13)) clearly contemplates the likelihood of waiting lists for Section 8 housing], aff'd, 541 F. Appx. 325 (4th Cir. 2013). Moreover, Plaintiff does not even dispute that the SHA did not receive his Request for Tenancy Approval until after his voucher had expired (albeit by only one day). Therefore, this claim is without merit.
Further, while Kennedy may be subject to suit for damages under 42 U.S.C. § 1983; see Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 430-432 (1987) [Finding that nothing in the Housing Act evidences that Congress intended to preclude § 1983 claims]; Plaintiff has failed to establish a genuine issue of fact that Kennedy is subject to any liability for her actions. As previously noted, it is clear in the evidence before this Court that Plaintiff's voucher had expired before his Request for Tenancy Approval was received by the SHA. Additionally, even if Plaintiff had properly requested an extension (of which there is no evidence), Plaintiff had no recognizable property interest in Section 8 housing money under the due process clause, as he was not even a "participant" in the program at that time. See 24 C.F.R. § 982.4(b); cf. Board of Regents v. Roth, 408 U.S. 564, 577 (1972) [An interest is protected under the due process clause only if a person has a "legitimate claim of entitlement" to it, not just a "unilateral expectation of it"]; see also Ely v. Mobile Housing Board, 13 F. Supp. 3d 1216, 1225 (S.D.Al. 2014) [Finding that the Plaintiff had no property interest in a discretionary extension of her voucher, and that she "was not denied due process because she was not deprived of any property interest"]; Burgess v. Alameda Housing Authority, 98 F. Appx. 603, 605 (9th Cir. 2004) [as an extension of the initial voucher term is discretionary under federal regulations, it does not create a constitutionally protected property interest].
42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Finally, to the extent Plaintiff is attempting to assert some type of disability claim in this lawsuit, even if the Court is to assume for purposes of summary judgment that Plaintiff has a otherwise qualifying disability, he has presented no evidence whatsoever (and indeed the evidence shows otherwise) that he ever requested an accommodation or extension of time due to his claimed disability, nor did he ever submit the necessary documentation in support of such an accommodation. See Payton v. Nantucket Partners, LP, No. 10-143, 2011 WL 4431865, at * 4 (E.D. Tx. 2011) ["The court agrees with the [d]efendants that they cannot be held liable for a refusal to grant an accommodation when they never knew that an accommodation was necessary"].
Conclusion
Based on the foregoing, it is recommended that the Defendant's motion for summary judgment be granted, and that this case be dismissed.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge October 17, 2018
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).