Williams v. Perez et al

MOTION to Dismiss for Lack of Jurisdiction

N.D. Cal.July 5, 2017

MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIAN J. STRETCH (CABN 163973) United States Attorney SARA WINSLOW (DCBN 457643) Chief, Civil Division DAVID A. PEREDA (CABN 237982) Assistant United States Attorney 1301 Clay Street Oakland, CA 94612 Telephone: (510) 637-3701 FAX: (510) 637-3724 David.Pereda@usdoj.gov Attorneys for Defendant Theresa Muley and Linda Uribe UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION BRANDON TYANN WILLIAMS, Plaintiff, v. RICHMOND HOUSING AUTHORITY, et al., Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-04143 KAW MOTION TO DISMISS SECOND AMENDED COMPLAINT Date: August 17, 2017 Time: 11:00 a.m. Location: 1301 Clay Street, Oakland, California Judge: Hon. Kandis A. Westmore Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 1 of 9 1 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on August 17, 2017, at 11:00 a.m., or as soon after as the Court may hear the matter, Theresa Muley and Linda Uribe will move the Court for an order dismissing the complaint against them under Rules 12(b)(1) and 12(b)(6). The motion will be heard in the United States District Court for the Northern District of California, 1301 Clay Street, Oakland, California, before the Honorable Kandis A. Westmore. This motion is based on the Memorandum of Points and Authorities that begins on the next page, the pleadings in this case, and any argument or additional evidence the Court allows. Here is what Civil Local Rule 7-3 says about responding to a motion like this one: (a) Opposition. Any opposition to a motion may include a proposed order, affidavits or declarations, as well as a brief or memorandum under Civil L.R. 7-4. Any evidentiary and procedural objections to the motion must be contained within the brief or memorandum. Pursuant to Civil L.R. 7-4(b), such brief or memorandum may not exceed 25 pages of text. The opposition must be filed and served not more than 14 days after the motion was filed. Fed. R. Civ. P. 6(d), which extends deadlines that are tied to service (as opposed to filing), does not apply and thus does not extend this deadline. (b) Statement of Nonopposition. If the party against whom the motion is directed does not oppose the motion, that party must file with the Court a Statement of Nonopposition within the time for filing and serving any opposition. YOUR RESPONSE TO THIS MOTION IS DUE ON JULY 19, 2017. IF YOU FAIL TO RESPOND, YOUR LAWSUIT AGAINST THERESA MULEY AND LINDA URIBE MAY BE DISMISSED. Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 2 of 9 2 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This suit stems from the City of Richmond Housing Authority’s (“RHA”) termination of Brandon Williams’ housing voucher. After the RHA denied her voucher, Williams made a fair housing complaint to the U.S. Department of Housing and Urban Development (“HUD”). When HUD investigated the complaint, it found no violation on the RHA’s part. Williams’ suit names the RHA, two RHA employees, and two HUD employees, Theresa Muley and Linda Uribe. There are two main reasons why the complaint cannot stand as to Muley or Uribe. First, as far as Williams means to challenge HUD’s decision on her housing complaint, a suit against HUD employees is not a way to do so. The United States has not waived its sovereign immunity as to that type of suit. Second, the complaint alleges nothing as to Muley and few facts as to Uribe. And the little that is said sets forth no legal claim. ISSUES TO BE DECIDED (1) In this suit that seems to name HUD employees based on the way HUD decided a housing complaint, has the United States waived its sovereign immunity under any statute listed in the current complaint? (2) Does the complaint set forth any viable claim against Muley or Uribe? BACKGROUND This is Williams’ Second Amended Complaint (“SAC”). ECF No. 37. The Court dismissed the original complaint, finding that it was “impossible to discern the essential details of the events that triggered plaintiff’s lawsuit, or the legal theories under which she seeks relief.” ECF No. 7, at 1. Williams amended the complaint. ECF No. 8. The new version said nothing about the federal defendants. Id. While motions to dismiss that complaint were pending, Williams filed the SAC. ECF No. 37. The SAC is on a template form. Id. Besides the RHA and its staff, the SAC lists “Linda Uribe, Intake Specialist/HUD” and “Theresa Muley, Investigator/HUD” as defendants. Id. at ¶ 1. Under the Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 3 of 9 3 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 section about jurisdiction, the SAC says that three federal laws are at issue: the Fair Housing Act (“FHA”), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (“ADA”). Id. at ¶ 2. The SAC nowhere links any law to any defendant. ECF No. 37. The facts and theories that Williams means to allege against the Muley and Uribe are still not clear. In the facts section, the SAC begins by discussing some of Williams housing history and unfortunate personal history. Id. at ¶¶ 5-19. The SAC also alleges facts about the termination of her housing voucher and help she sought from Legal Aid. Id. at ¶¶ 20-22. The SAC then alleges that Williams filed a housing complaint with HUD. Id. at ¶ 23. It alleges that Uribe “held the complaint for a calendar year and did not do anything with the complaint.” Id. at ¶ 24. Before Williams filed her housing complaint, the SAC alleges, Uribe told the RHA about it. Id. at ¶ 28. The SAC nowhere mentions Muley, but it attaches a letter which the SAC labels as “Muley’s ‘Determination Letter’.” ECF No. 37 at 31-38. The letter sets forth HUD’s findings as to Williams’ housing complaint. Id. LEGAL STANDARD I. RULE 12(b)(1). “If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). Rule 12(b)(1) allows a defendant to test that jurisdiction. A plaintiff has the burden of showing that it exists over her claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Rule 12(b)(1) challenges “can be either facial or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The former tests whether the allegations at face value invoke jurisdiction. Courthouse News Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014). A factual challenge looks beyond the allegations to see whether they are untrue. Id. Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 4 of 9 4 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. RULE 12(b)(6). Rule 12(b)(6) allows a defendant to test whether a complaint asserts claims that are legally sufficient. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint must contain “a short and plain statement of the claim showing that [the plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To stand, the complaint must plead facts that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It hits that mark when it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must “accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). But a court need not do the same for conclusory statements or unreasonable inferences. Taylor v. FDIC, 132 F.3d 762 (D.C. Cir. 1997). Nor should a court assume that the plaintiff can prove facts that are different than those she alleges. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). DISCUSSION Given that the suit-as to Muley and Uribe-seems to center on HUD’s decision on Williams’ housing complaint, the first thing to look at is whether the United States has waived its sovereign immunity under any theory that is potentially at issue. For the most part, that has not happened, courts have found. Further, the SAC sets forth few facts and no claims against Muley and Uribe in the first place. I. SOVEREIGN IMMUNITY. The SAC says little about the federal defendants. In short, it alleges that Williams took steps to file a housing complaint with HUD, Uribe notified the RHA that Williams might file a complaint, Williams filed the complaint, and the RHA denied her voucher. ECF No. 37 at ¶¶ 23-24, 28, and 30. The SAC also attaches HUD’s determination letter. ECF No. 37 at 31-38. As far as Williams means to sue HUD for the way it handled that complaint, or to sue Uribe and Muluy for the way they carried out their Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 5 of 9 5 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 official duties, the sovereign immunity rule is front and center. “As a sovereign, the United States is immune from suit unless it waives such immunity.” Chadd v. United States, 794 F.3d 1104, 1108 (9th Cir. 2015). “Similarly, suits against officials of the United States . . . in their official capacity are barred if there has been no waiver.” Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001). “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). This is the sovereign immunity rule. Id. “[W]aivers must be ‘unequivocally expressed in the statutory text’ and ‘are to be strictly construed, in terms of its scope, in favor of the sovereign.” Jordan v. The Presidio Trust, 16-cv-02122 KAW, 2017 WL 396169, at *3 (N.D. Cal. Jan. 30, 2017)(quoting Dep’t of the Army v. Blue Fox, 525 U.S. 255, 261 (1999). It is up to the party seeking the waiver to meet this “high standard.” Id. (quoting Hajro v. U.S. Citizenship and Immigration Servs., 811 F.3d 1086, 1101 (9th Cir. 2016). As explained in the next section, for the most part the United States has not consented to be sued under the laws that the complaint lists. II. LIMITS ON THE RIGHT TO SUE UNDER THE LAWS LISTED IN THE COMPLAINT. The complaint mentions three laws: the FHA, Section 504 of the Rehabilitation Act, and the ADA. There is no right to sue HUD under the FHA for the way HUD investigated or decided a housing complaint. Likewise, there are limits on a plaintiff’s ability to sue the federal government or its employees under the Rehabilitation Act and under the ADA. A. The FHA. To start with, Congress has not waived the government’s sovereign immunity under the FHA. Gaxiola v. City of Los Angeles, 10-cv-6632 AHM, 2011 WL 13152821, at *6 (C.D. Cal. Sept. 1, 2011)(citing cases). And a plaintiff cannot sue HUD to challenge its decision on a housing complaint. Turner v. Sec’y of U.S. Dep’t of Hous. & Urban Dev., 449 F.3d 536, 540 (3d Cir. 2006)(holding that Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 6 of 9 6 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Section 813 [of the FHA] provides an ‘other adequate remedy in court,’ barring judicial review” of HUD’s decision as to a housing discrimination complaint.); Phifer v. Sec’y of U.S. Dep’t of Hous. & Urban Dev., 08-cv-08-299 LKK, 2009 WL 8706810, at *4, (E.D. Cal. Feb. 2, 2009)(holding that the FHA “does not provide a private right of action for judicial review of a determination by HUD to dismiss an administrative complaint.”). Instead, the FHA “authorizes private suits directly against perpetrators of allegedly discriminatory practices, even if . . . HUD renders a determination that there was no reasonable cause to believe that there had been discrimination.” Turner, 449 F.3d at 540 (citing 42 U.S.C. § 3613(a)(2)). B. Section 504 Of The Rehabilitation Act. Under Section 504 of the Rehabilitation Act, there is no waiver of sovereign immunity as to suits for damages. American Council of Blind v. Astrue, 05-cv-4696 WHA, 2008 WL 1858928, at *7 (N.D. Cal. April 23, 2008)(citing Lane v. Pena, 518 U.S. 187, 197 (1996)). The Northern District has held that a plaintiff may sue the federal government for equitable relief under Section 504. Id. But individual capacity suits against a public officials under Section 504 are not allowed. Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). C. The ADA. As for the ADA, the statute does not “provide for relief against the United States, its agencies, and its employees.” Smith v. U.S. Court of Appeals, 08-cv-08160 EMC, 2008 WL 2079189, at *3 (N.D. Cal. May 15, 2008)(citing Cellular Phone Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir.2000)). The same is true of an individual capacity suit against a public official. Garcia, 280 F.3d at 107. III. THE SAC SETS FORTH NO CLAIM AGAINST THE FEDERAL DEFENDANTS. For all that, the SAC alleges few facts against Muley and Uribe in the first place. It is still not possible to “discern the essential details of the events that triggered plaintiff’s lawsuit, or the legal theories under which she seeks relief.” ECF No. 7, at 1. And there is no way “to draw the reasonable inference Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 7 of 9 7 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that [either] defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Bell Atlantic Corp., 550 U.S. at 555). As explained above, except for equitable relief under Section 504 of the Rehabilitation Act, the sovereign immunity rules bar suits against HUD or its employees under the laws cited in the complaint. But even if Williams means to sue HUD-and not Muley or Uribe-under Section 504, the SAC does not actually do so or seek equitable relief. More importantly, the SAC alleges no facts as to how HUD allegedly denied Williams a benefit because of some disability. 29 U.S.C. § 794. Lastly, the SAC nowhere points to the Privacy Act. But Williams mentioned it in a prior filing. ECF No. 33 at 3. For one thing, neither Muley nor Uribe may be sued under that law. Instead, “[t]he proper defendant in a Privacy Act action is an agency, not individual employees.” Singh v. U.S. Dep’t of Homeland Sec., 12-cv-00498 AWI, 2014 WL 67254, at *3 (E.D. Cal. Jan. 8, 2014) (citing Armstrong v. U.S. Bureau of Prisons, 976 F.Supp. 17, 23 (D.D.C. 1997); Wheeler v. Gilmore, 998 F.Supp. 666, 668 (E.D. Va. 1998)). For another thing, the SAC is missing key elements of a Privacy Act claim. For instance, the SAC must set forth facts explaining how an allegedly improper disclosure had an adverse effect on Williams and how it led to actual damages. Stafford v. Soc. Sec. Admin., 437 F.Supp.2d 1113, 1117-1118. The SAC alleges facts setting forth neither thing. Rather, the SAC alleges that Uribe “notified Tim Jones . . . that [Williams] was trying to file a complaint before the complaint was even filed.” ECF No. 37, at ¶ 28. After this, the SAC alleges, Jones told Williams, “I tried to help you, and you went behind my back and tried to file a complaint with HUD? I’m not going to reinstate your voucher now.” Id. at ¶ 29. The SAC alleges that before this call, Jones told Williams “to provide [Jones] with a letter from a therapist to get my voucher reinstated. I did. Then he told me to have the therapist call him. I did. Then he told me to arrange a visit with the therapist with him in his office. I did. Tim Jones told the therapist Charese Allen that if I completed visits with her for 3 months and attended classes 3 times a week, that he would reinstate my voucher. See Exhibit (S) declaration from therapist.” Id. at ¶¶ 25-26 (emphasis added). Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 8 of 9 8 MOTION TO DISMISS 16-CV-04143 KAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In that declaration, Allen says this: “Jones stated that due to previous issues, he wanted Ms. Williams to receive regular mental health care. He stated that although she had lost her voucher he would be willing to reinstate it if Ms. Williams attended therapy with this clinician and group at Kaiser Permanente. . . . Ms. Jones only came to therapy and/or group a few times after this meeting.” ECF No. 37, at 39-40. (emphasis added). In other words, the SAC alleges that Jones would have reinstated her voucher if she attended therapy three days per week for three months, but she only went to “therapy and/or group a few times.” Id. Given those allegations-and the other attachments to the SAC, such as HUD’s determination letter (ECF No. 37 at 31-38)-it is not clear how Uribe’s alleged disclosure adversely impacted Williams or led to any damages. At bottom, the SAC asserts no claim under the Privacy Act. But even if Williams meant to do so, Muley and Uribe are not proper defendants. And as it stands, the SAC does not plead all the elements of a claim. CONCLUSION For the foregoing reasons, the government respectfully request that this Court dismiss the Second Amended Complaint as to Muley and Uribe. DATED: July 5, 2017 Respectfully submitted, BRIAN J. STRETCH United States Attorney /s/ David Pereda DAVID PEREDA Assistant United States Attorney Attorneys for Defendants Case 4:16-cv-04143-KAW Document 45 Filed 07/05/17 Page 9 of 9