Opinion
Civil Action 2:22-cv-01872-SAL-MGB
02-14-2023
King Grant-Davis, Plaintiff, v. Diana Ruhlig Hendrix, Art Milligan, Geona Shaw Johnson, Florence Peters, and Jamie Roper, Defendants.
ORDER AND REPORT AND RECOMMENDATION
MARY GORDON BAKER JUDGE.
Plaintiff, appearing pro se, filed this civil action challenging the Charleston Housing Authority's denial of his applications for public housing and Section 8 federal housing assistance. (Dkt. No. 1.) This matter is before the court upon several motions: Plaintiff's Motion for Preliminary Injunction (Dkt. No. 26); Defendants' Motion to Dismiss (Dkt. No. 33); Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 47); Plaintiff's Motion to Expedite Mediation (Dkt. No. 49); Plaintiff's Motion to Appoint a Mediator (Dkt. No. 57); and Plaintiff's Motion to Enforce the Scheduling Order (Dkt. No. 58). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters involving litigation by individuals who are proceeding pro se are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned recommends that Defendants' Motion to Dismiss (Dkt. No. 33) be granted and orders that Plaintiff's motions (Dkt. Nos. 26, 47, 49, 57) therefore be denied as moot.
BACKGROUND
Plaintiff was released to parole supervision in July 2000 after serving twenty-two years in state prison for certain sex crimes he committed in New York. Plaintiff eventually moved to Charleston, South Carolina in 2005, and was required to register as a convicted sex offender for life under the South Carolina Sex Offender Registry Act (“SORA”), SC Code §§ 23-3-400 to -555 (2007 & Supp. 2020). (Dkt. No. 1 at 6; Dkt. No. 35 at 7.)
In December 2017, Plaintiff's landlord informed him that he intended to sell the rental property where Plaintiff had lived since September 2005. (Dkt. No. 35 at 7.) Accordingly, Plaintiff sought assistance from the Charleston Department of Housing and Community Development (“CDHCD”) to secure affordable public housing. (Id.) Plaintiff was apparently assigned to several employees from the Charleston Housing Authority (the “Housing Authority”) and, with their help, submitted two applications for government-subsidized housing on or around April 12, 2022. (Id. at 7-8.) Plaintiff subsequently sent a series of letters to CDHCD and the Housing Authority seeking expedited consideration of his applications based on the purported presence of asbestos and lead-based paint at his rental unit. (Id. at 8-18.) Plaintiff claims that he was informed via telephone on May 20, 2022, that his applications had been “rejected by the system.” (Id. at 19.) During a follow-up phone call on June 3, 2022, the Housing Authority Manager explained to Plaintiff that the online system instantaneously found him ineligible for placement based on his status as a lifetime sex offender. (Id.)
Plaintiff then filed the instant civil action raising claims against those employees involved in the processing of his unsuccessful applications. Plaintiff contends that Defendants were negligent in failing to timely notify him of the denial of his applications. (Id. at 8-27.) Plaintiff also claims that Defendants violated 24 C.F.R. § 982.201(f)(1) and 42 U.S.C. § 13663(d) because Plaintiff did not receive a written notice detailing the reason for the denial and informing him of his right to challenge the determination. (Id.) Finally, Plaintiff claims that his application should have been accepted as a “special admission” under 24 C.F.R. § 982.203 because of the asbestos and lead paint in his unit. (Id.) Plaintiff “prays for an order of the Court reversing the actions and inaction of the Housing Authority” and “requiring Defendants . . . to assist [P]laintiff to obtain suitable housing in residential owned or secured by the City of Charleston. . .” (Dkt. No. 23 at 7.)
Under 24 C.F.R. § 982.201,
The [public housing agency] must give an applicant prompt written notice of a decision denying admission to the program (including a decision that the applicant is not eligible, or denying assistance for other reasons). The notice must give a brief statement of the reasons for the decision. The notice must also state that the applicant may request an informal review of the decision, and state how to arrange for the informal review.24 C.F.R. § 982.201(f)(1); see also 24 C.F.R. § 982.5 (“Where part 982 requires any notice to be given by the PHA, the family or the owner, the notice must be in writing.”).
42 U.S.C. § 13663(d) states,
Before an adverse action is taken with respect to an applicant for federally assisted housing on the basis that an individual is subject to a lifetime registration requirement under a State sex offender registration program, the public housing agency obtaining the record shall provide the tenant or applicant with a copy of the registration information and an opportunity to dispute the accuracy and relevance of that information.
24 C.F.R. § 982.203 provides that “[i]f HUD awards a PHA program funding that is targeted for families living in specified units: . . . [t]he PHA may admit a family that is not on the PHA waiting list, or without considering the family's waiting list position.”
On October 4, 2022, Plaintiff filed a Motion for Preliminary Injunction requesting that the court “prevent[] Defendant Boneworks/Hamilton Morrison from mooting this case by going to filing for eviction of plaintiff in Landlord/Tenant State court, so as to stop this Court from ruling on the merits of this case.” (Dkt. No. 26 at 1.) On October 14, 2022, Defendants filed a Motion to Dismiss. (Dkt. No. 33.) Defendants then filed a response in opposition to Plaintiff's Motion for Preliminary Injunction on October 18, 2022. (Dkt. No. 36.) On November 7, 2022, Plaintiff filed a response in opposition to Defendants' Motion to Dismiss. (Dkt. No. 43.) The next day, Plaintiff filed a reply to Defendants' response to his Motion for Preliminary Injunction. (Dkt. No. 44.) Defendants declined to file a reply to Plaintiff's response to their Motion to Dismiss by the November 14 deadline.
Defendants' motion claims to be filed on behalf of all Defendants, whereas the memorandum in support of the motion references only Defendants Hendrix and Milligan. (See Dkt. Nos. 33, 33-1.) Because Plaintiff's Amended Complaint is unclear as to which claims are brought against which Defendants and because Defendants' memorandum covers all potentially cognizable claims brought by Plaintiff, the undersigned construes the Motion to Dismiss (Dkt. No. 33) as a request to dismiss the case filed on behalf of all Defendants.
On December 5, 2022, Plaintiff filed a Motion for Judgment on the Pleadings. (Dkt. No. 47.) On December 12, 2022, Plaintiff also filed a Motion to Expedite Mediation. (Dkt. No. 49.) Defendants responded to Plaintiff's motions on December 16, 2022 and December 19, 2022. (Dkt. Nos. 50, 51, 52.) Plaintiff replied to Defendants' responses on December 19, 2022 and December 27, 2022. (Dkt. Nos. 53, 55.) On January 13, 2023, Plaintiff field a Motion to Appoint a Mediator. (Dkt. No. 57.) Defendants declined to respond to Plaintiff's Motion to Appoint a Mediator by the January 27, 2023 deadline. On February 7, 2023, Plaintiff filed a Motion to Enforce the Scheduling Order. (Dkt. No. 58.) Defendants have not yet responded.
LEGAL STANDARD
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Smallv. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The undersigned has considered the motions pending before the Court with these standards in mind.
DISCUSSION
I. Motion to Dismiss
Defendants seek dismissal under 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 33.) On a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are ‘enough to raise a right to relief above the speculative level.'” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). “A plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must “take all of the factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party.” Stansbury v. McDonald's Corp., 36 Fed.Appx. 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, while the court must draw all reasonable inferences in favor of the plaintiff, it need not accept the “legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
Here, Plaintiff alleges that Defendants violated his right to due process and equal protection under the Fourteenth Amendment. (See generally Dkt. Nos. 23, 35.) The Fourteenth Amendment states that: “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law” and that a state may not “deny any person within its jurisdiction to the equal protection of the laws.” U.S. Const. amend. XIV.
Within the Due Process Clause are two distinct forms of protection: (1) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (2) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See City of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). To establish a violation of either, a plaintiff must first show that he has a constitutionally protected interest in life, liberty, or property. See Bauer v. Summey, 568 F.Supp.3d 573, 586 (D.S.C. 2021) (referencing Chavez-Rodriguez v. City of Santa Fe, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008)).
It is well-established that the prospect of receiving federal housing assistance is “merely an expectation, not an entitlement arising to the level of a constitutionally-protected interest.” Phelps v. Hous. Auth. of Woodruff, 742 F.2d 816, 822 (4th Cir. 1984); Perry v. Hous. Auth. of City of Charleston, 486 F.Supp. 498, 503 (D.S.C. 1980), aff'd, 664 F.2d 1210 (4th Cir. 1981) (noting that “the right to adequate housing is not constitutionally guaranteed”). Though Courts have recognized protected property interests for those receiving or accepted for public housing benefits, the Fourth Circuit has determined that public housing applicants do not have a protected property interest. See Phelps, 742 F.2d at 822-23 (“Although the argument that public housing applicants have limited due process rights in the determination of their applications has some support in the case law . . . [w]e are of the opinion that no such property interest exists.”). As noted, Plaintiff in this case opposes the denial of his application for public housing or housing assistance. (See generally Dkt. Nos. 23, 35.) Accordingly, he cannot establish that Defendants deprived him of a constitutionally protected property interest, and his due process claims therefore fail.
Even if Plaintiff could establish a constitutionally protected property interest to substantiate his due process claims, his claims would still fail. As explained in further detail below, Defendants were statutorily required to deny Plaintiff's applications, Plaintiff knew that before he submitted them, and Defendants kept Plaintiff informed throughout the application process. (See infra at 10-11.) These facts do not give rise to a valid due process claim.
Plaintiff's equal protection claim fails for similar reasons. As Defendants correctly note, the Amended Complaint does not allege that Plaintiff was treated differently on account of his race or sex, and does not articulate the specific basis for Plaintiff's equal protection claim. (Dkt. No. 33-1 at 22; see also Dkt. Nos. 23, 35.) Rather, the Amended Complaint generally opposes Defendants' decision to deny Plaintiff's housing application because he is a registered sex offender. (See generally Dkt. Nos. 23, 35.)
In his response to Defendants' Motion to Dismiss, Plaintiff clarifies that 42 U.S.C § 13663 is the “Discriminatory Statute” at issue. (Dkt. No. 43 at 3.) Thus, the undersigned construes Plaintiff's equal protection claim to be based upon this statute and his status as a sex offender. Section 13663 provides that “an owner of federally assisted housing shall prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.” 42 U.S.C. § 13663. To the extent Plaintiff asserts that his exclusion from public housing and housing assistance due to this provision is an equal protection violation, this Court considered the same argument in an earlier case filed by Plaintiff. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (explaining that a federal court may take judicial notice of the contents of its own records, as well as those records of other courts); see also Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites). In that case, the District Judge adopted the Magistrate Judge's Report and Recommendation which stated:
Plaintiff asserts that his exclusion from federally assisted housing benefits due to his lifetime registration requirement is an equal protection violation and is, thus, unconstitutional....Equal Protection principles apply to the federal government through the Due Process Clause of the Fifth Amendment to the Constitution. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Legislation is subject to rational basis scrutiny unless it discriminates against members of a suspect class or implicates a fundamental right. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Heller v. Doe, 509 U.S. 312, 319-320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).
“To the extent that the Complaint asserts that sex offenders are a suspect or quasisuspect class, neither the United States Supreme Court, nor the Fourth Circuit, has directly addressed this specific issue. However, all other federal Circuit Courts that have addressed this issue have found that they are not.” Wiley v. WV House of Delegates, No. 2:14-CV-10974, 2017 WL 663671, at *7 (S.D. W.Va. Jan. 30, 2017), report and recommendation adopted sub nom., 2017 WL 663350 (S.D. W.Va. Feb. 17, 2017) (citing Roe v. Marcotte, 193 F.3d 72 (2d. Cir. 1999); Artway v. Atty. Gen., 81 F.3d 1235 (3d. Cir. 1996); Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 2014); Cutshall v. Sundquist, 193 F.3d 466, 482 (6th Cir. 1999); United States v. Lemay, 260 F.3d 1018, 1030-31 (9th Cir. 2001); Riddle v. Mundragon, 83 F.3d 1197, 1207 (10th Cir. 1996); Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005); Windwalker v. Gov. of Alabama, 579 Fed.Appx. 769 (11th Cir. 2014)). Further, “the possibility of receiving federal housing assistance under 42 U.S.C. § 1437f does not rise to the level of a constitutionally-protected property interest.” Cunningham v. Parkersburg Hous. Auth., No. CIV A 605-CV-00940, 2007 WL 712392, at *7 (S.D. W.Va. Mar. 6, 2007) (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Phelps v. Housing Auth. of Woodruff, 742 F.2d 816, 822 (4th Cir. 1984)(prospect of receiving housing assistance merely an expectation, not an entitlement arising to the level of a constitutionally-protected interest). Therefore, rational basis scrutiny applies here. Under the rational basis standard, the challenged statute is entitled to a “strong presumption of validity.” FCC v. Beach Communications, 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).
The statute need only be “‘rationally related to a legitimate state interest.'” Pulte Home Corp. v. Montgomery Cty., 909 F.3d 685, 693 (4th Cir. 2018). The Fourth Circuit has instructed that, to withstand a motion to dismiss, a plaintiff “‘must plead sufficient facts to overcome the presumption of rationality that applies to government classifications.'” Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008) (quoting Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992)). Aiding low-income families in obtaining safe and secure public housing is a legitimate governmental interest. Cunningham, 2007 WL 712392, at *8. Plaintiff has failed to plead facts sufficient to overcome the presumption of rationality and, therefore, dismissal of this cause of action is appropriate.Grant-Davis v. Wilson, No. 2:19-cv-0392-DCN-TER, 2021 WL 4596614, at *8 (D.S.C. July 15, 2021), adopted, 2021 WL 4260779 (D.S.C. Sept. 20, 2021). Plaintiff has provided no new or supplementary facts that would lead the Court to a different conclusion here. (See generally Dkt. Nos. 23, 35.) Indeed, Plaintiff makes the same claims relating to equal protection that he made in his previous case, just based on housing applications filed at a later date. (See generally Dkt. Nos. 23, 35.)
To the extent that Plaintiff attempts to distinguish his claims by arguing that Defendants violated 42 U.S.C. § 13663(d) because they did not provide him “with a copy of the registration information and an opportunity to dispute the accuracy and relevance of the information,” this argument lacks merit. (Dkt. No. 43 at 6.) Section 13663(d) provides that:
Before an adverse action is taken with respect to an applicant for federally assisted housing on the basis that an individual is subject to a lifetime registration requirement under a State sex offender registration program, the public housing agency obtaining the record shall provide the tenant or applicant with a copy of the registration information and an opportunity to dispute the accuracy and relevance of that information.42 U.S.C. § 13663.
Here, Plaintiff does not contest the accuracy of his status as a sex offender, and the Amended Complaint shows that he was afforded an opportunity to dispute the relevance of such status. (See generally Dkt. Nos. 23, 35.) More specifically, Plaintiff states that he had several phone calls with Defendants after his applications for public housing and housing assistance were denied. (See generally Dkt. Nos. 23, 35.) During one of those phone calls, Defendant Hendrix explained to him that his application was denied because he was registered as a sex offender. (Dkt. No. 35 at 21.)
Plaintiff claims that he then informed her of an “April 12, 2022 Memorandum of HUD Secretary Marcia L. Fudge . . . to end discrimination against [sex offenders].” (Id.) Plaintiff has provided a copy of this memorandum to the Court. (Dkt. No. 1-1.) It summarizes various disparities that can result from enforcement of certain policies and provisions enforced by Federal Housing Assistance Programs, and encourages readers “to ensure that, to the full extent permitted by law . . . [they] administer[] HUD programs in an inclusive way and . . . encourag[e] [] program partners to be similarly inclusive.” (Id. at 3.) Plaintiff claims that Defendant Hendrix told him that “she asked Housing Authority Chief Executive Officer Art Milligan to give his opinion of the Secretary Fudge Memorandum,” and that they nonetheless “agreed to the denial of the application.” (Id.) In other words, Plaintiff opposed the relevance of his status as a sex offender and Defendants considered his arguments before concluding that they disagreed.
The undersigned notes that this memorandum does not discuss people convicted of sex crimes. (See generally Dkt. No. 1-1.) In his response to Defendants' Motion to Dismiss, Plaintiff claims that this memorandum (along with a follow-up memorandum that he also submits to the Court) changes the law and makes his claims in this case distinguishable from his previous. (Dkt. No. 43 at 5.) However, Plaintiff overlooks the fact that the memoranda do not reference sex offenders, their registry, or 42 U.S.C. § 13663. (See generally Dkt. No. 1-1, 44-1.)
Further, Plaintiff was already well-aware of his placement on the sex offender registry- and the fact that his applications would be declined because of such placement-before he submitted them. (Dkt. No. 33-1 at 9.) As noted, Plaintiff previously filed a lawsuit in this Court contesting the denial of his applications for public housing and housing assistance on the same basis that he does here. (See supra at 7-9.) This Court dismissed his prior case on September 20, 2021, and he filed an appeal with the United States Court of Appeals for the Fourth Circuit shortly thereafter. (App. Case No. 21-2157.) On February 25, 2022, the Fourth Circuit held Plaintiff's case in abeyance “until the effective date of Powell v. Keel, 860 S.E.2d 344 (S.C. 2021),” in which the South Carolina Supreme Court concluded that the sex offender lifetime registration requirement violated offenders' due process rights, or “until the South Carolina General Assembly amend[ed] [SORA] . . . in accordance with Powell.” (App. Case No. 21-2157, Dkt. No. 22.) On May 23, 2022, the Governor signed into law South Carolina Act 221, which amended the registry to account for those due process concerns. Thus, Plaintiff's appeal is once again pending before the Fourth Circuit, and the Government has filed a brief explaining that under the new provisions, Plaintiff now has several mechanisms to seek removal from South Carolina's Sex Offender Registry. (See App. Case No. 21-2157, Dkt. No. 23, explaining that Plaintiff may petition the South Carolina Law Enforcement Division for removal pursuant to S.C. Code § 23-3-462(A)(1)(c), or alternatively, he may file a petition for removal in South Carolina General Sessions court pursuant to § 463(A)(3).) There is no indication that Plaintiff has any such petition or been removed from the registry.
In other words, Plaintiff has been aware that he is ineligible for public housing and housing assistance since his previous applications (the applications on which his prior lawsuit is based) were denied in 2018. (Dkt. No. 35 at 11.) He admits as much in his Amended Complaint. (Id.) Plaintiff's contentions that he was not notified of and afforded an opportunity to dispute his placement on the sex offender registry are therefore unconvincing.
Similarly, Plaintiff's contentions that Defendants failed to provide him written notice of his denial and the reasoning behind it are insufficient to sustain a valid cause of action. Indeed, the pleadings support Defendants' contention that “assistance was denied to an ineligible applicant who knew the reasons for his denial and received notice thereof.” (Dkt. No. 33-1 at 14.) Plaintiff's own Amended Complaint notes that he frequently communicated with Defendants and was aware that his applications had been denied just a few weeks after they were submitted. (See generally Dkt. Nos. 23, 35.)
What is more, Courts have determined that “the exclusion of lifetime registered sex offenders from receiving federal housing assistance is a valid condition placed on federal funding eligibility....” See Cunningham v. Parkersburg Hous. Auth., No. 6:05-cv-00940, 2007 WL 712392, at *6 (S.D. W.Va. Mar. 6, 2007). Accordingly, to be deemed eligible for housing assistance, Plaintiff must successfully petition the State to remove him from the sex offender registry. Because Plaintiff has not been removed from the registry, Plaintiff's requested relief (public housing eligibility) is unavailable to him at this point.
Importantly, Plaintiff does not seek an administrative hearing with the Housing Authority to challenge the denial of his application-a remedy that could resolve many of the issues about which he complains. (See generally Dkt. Nos. 23, 35.) Instead, Plaintiff asks that the Court overturn the Housing Authority's eligibility determination and order that Plaintiff be provided housing. (Dkt. No. 23 at 5.) This Court is disinclined to interfere with the deference afforded to local housing authorities to administer their programs, especially on the facts set forth here-where the Court has already considered many of Plaintiff's arguments, and Plaintiff has failed to set forth a valid and distinguishable constitutional claim. See Richmond Tenants Org., Inc. v. Richmond Redevelopment & Hous. Auth., 751 F.Supp. 1204, 1205 (E.D. Va. 1990) (noting that the court should give local housing authorities “maximum authority”); Jones v. Graziano, No. 1:12-cv-3314-JKB, 2013 WL 1459188, at *2 (D. Md. Apr. 10, 2013), aff'd, 541 Fed.Appx. 325 (4th Cir. 2013) (noting that a public housing agency “is vested with guided discretion to execute this nation's housing policies through various programs,” and “it is beyond the purview of this Court to mandate that [a public housing agency] exercise that discretion in a particular fashion to suit one individual”).
As for Plaintiff's claim that he should have been given “Special Admission” into the public housing or housing assistance program, he fails to state a cognizable claim here, as well. In support of this claim, Plaintiff points the Court to 24 C.F.R. § 982.203, which states, in relevant part: “[t]he PHA may admit a family that is not on the PHA waiting list, or without considering the family's waiting list position.” 24 C.F.R. § 982.203(a)(2). Plaintiff argues that Defendants were required to provide him with public housing assistance based on this regulation. (See generally Dkt. No. 23, 35.) However, the regulation's plain language shows that Defendants were not so required. Indeed, the ability to admit a “family” that is not on the waiting list is clearly discretionary. See 24 C.F.R. § 982.203(a)(2) (“The PHA may admit a family that is not on the PHA waiting list, or without considering the family's waiting list position.” (emphasis added)).
Ultimately, Plaintiff's Amended Complaint takes issue with the fact that he was denied public housing and housing assistance because of his placement on the lifetime sex offender registry. (See generally Dkt. Nos. 23, 35.) However, 42 U.S.C. § 13663 mandates that lifetime registered sex offenders be denied admission to public housing and housing assistance programs. Plaintiff was well-aware of this requirement before he filed this lawsuit, given that he filed a separate lawsuit in this Court contesting his same in 2019. Further, his Amended Complaint makes clear that he was kept informed about the status of his applications and the reasons for their denial through various phone calls and communications with Defendants. These are simply not facts on which it is necessary for this Court to interfere with the deference afforded to local housing authorities. See Richmond Tenants Org., Inc., 751 F.Supp. at 1205 (noting that the court should give local housing authorities “maximum authority”); Jones, 2013 WL 1459188, at *2 (noting that a public housing agency “is vested with guided discretion to execute this nation's housing policies through various programs,” and “it is beyond the purview of this Court to mandate that [a public housing agency] exercise that discretion in a particular fashion to suit one individual”). The undersigned therefore recommends that Defendants' Motion to Dismiss be granted and that Plaintiff's case be dismissed in full.
Given this recommendation, Plaintiff's Motion for Preliminary Injunction (Dkt. No. 26), Motion for Judgment on the Pleadings (Dkt. No. 47), Motion to Expedite Mediation (Dkt. No. 49), Motion to Appoint a Mediator (Dkt. No. 57), and Motion to Enforce the Scheduling Order (Dkt. No. 58) are denied as moot.
Plaintiff's Amended Complaint also mentions negligence claims against Defendants. (See generally Dkt. Nos. 23, 35.) However, Plaintiff's states in his response to Defendants' Motion to Dismiss that he abandons these claims (Dkt. No. 43 at 11, stating that Plaintiff “submits now that absolutely no negligence claim against Hendrix or Milligan is brought in this case.”). To the extent Plaintiff attempts to bring negligence claims against the other Defendants and/or did not intend to abandon his negligence claims in his response, such claims should be dismissed because Plaintiff fails to show that Defendants had a legal duty to him as an applicant for housing assistance as opposed to a recipient. See Grier v. United States Dep't of Hous. & Urb. Dev., No. 21-cv-2165, 2022 WL 16575705, at *5 (D. Md. Nov. 1, 2022) (dismissing plaintiff's negligence claims because she “failed to plausibly allege the first element [of her state law negligence claims]- that Dallas Housing Authority and Elkton Housing Authority employees owed her a legal duty as a housing subsidy program applicant”); see also Doe v. Porter-Gaud Sch., No. 2:22-cv-02093-DCN, 2023 WL 122028, at *5 (D.S.C. Jan. 6, 2023) (“An essential element in a cause of action based upon negligence is the existence of a legal duty of care owed by the defendant to the plaintiff.”). Similarly, the Amended Complaint brings claims against “Hamilton Morris” and/or “Boneworks.” (See generally Dkt. Nos. 23, 35.) On October 12, 2022, this Court explained that Plaintiff had not provided a proposed summons for such parties and instructed Plaintiff to “file a separate motion on this issue and provide a proposed summons” if he wished for Morrison or Boneworks to be joined as Defendants. (Dkt. No. 28.) Plaintiff did not file any such motion, nor did he provide a proposed summons. As such, the undersigned declines to consider any claims against Hamilton Morrison or Boneworks, as they are not parties to this civil action.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the court GRANT Defendants' Motion to Dismiss (Dkt. No. 33) and dismiss Plaintiff's case in full. In light of this recommendation, Plaintiff's Motion for Preliminary Injunction (Dkt. No. 26), Motion for Judgment on the Pleadings (Dkt. No. 47), Motion to Expedite Mediation (Dkt. No. 49), Motion to Appoint a Mediator (Dkt. No. 57), and Motion to Enforce the Scheduling Order (Dkt. No. 58) are DENIED AS MOOT.
Because Plaintiff is unlikely to cure the Amended Complaint's deficiencies by including additional factual information, the undersigned recommends that Plaintiff not be given further opportunity to amend his complaint. See Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630 (4th Cir. 2008)) (noting that a district court may dismiss a complaint with prejudice when “it is clear that amendment would be futile in light of the fundamental deficiencies in plaintiff[']s[ ] theory of liability”).
IT IS SO RECOMMENDED.
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 L. 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).