Opinion
C. A. 3:23-6948-CMC-PJG
03-11-2024
Lakenyata Maxwell, Plaintiff, v. Housing Authority, also known as Columbia Housing Authority; Candice Tollison; Laquile Bracey; Deana Mills, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Lakenyata Maxwell, a self-represented litigant, filed this civil action pursuant to 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915. This matter is back before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Plaintiff's motion for a temporary restraining order. (ECF No. 3.) The court previously recommended the motion be denied for Plaintiff's failure to comply with the procedural requirements of Federal Rule of Civil Procedure 65(b)(1). (ECF No. 9.) Plaintiff then filed an affidavit in support of the motion (ECF No. 14-1), and the Honorable Cameron McGowan Currie, Senior United States District Judge, re-referred this matter for an analysis of the affidavit. (ECF No. 18.) Plaintiff has also now filed an Amended Complaint. Having reviewed the motion, the affidavit, the Amended Complaint, and the applicable standards, the court again concludes the motion for a temporary restraining order should be denied.
In a contemporaneous order, the court authorized the issuance and service of process on the defendants.
BACKGROUND
Plaintiff brings this action claiming that the defendants violated her right to due process when they revoked her federal housing assistance without providing her an informal hearing in front of a neutral factfinder at which she could cross-examine witnesses. Plaintiff alleges she was previously the recipient of a federal housing voucher through a housing program administered by Defendant Columbia Housing Authority. Plaintiff alleges that on November 2, 2023, she received notice of the Housing Authority's intent to terminate her voucher due to Plaintiff's alleged fraud. Plaintiff alleges that on November 13, 2023, she received a notice of eviction from the property manager, Defendant Deana Mills of the Southern Development Management Company. Plaintiff alleges Mills issued the eviction notice in retaliation for Plaintiff complaining to Mills's manager about the behavior of Mills's family on the same property.
Plaintiff alleges she did not receive notice of when a hearing would be held on the termination of her housing benefits until November 15, 2023, when Plaintiff had to call the hearing officer herself. Plaintiff alleges that on December 1, 2023, the Housing Authority held an informal hearing with Plaintiff and Defendants Candice Tollison and Laquile Bracey, employees of the Housing Authority. Plaintiff alleges that the only evidence the defendants used against her at the hearing were documents that included hearsay from Mills stating that a neighbor resided in Plaintiff's unit. Plaintiff alleges the neighbor was not present for the meeting, so Plaintiff was not afforded the opportunity to cross-examine the neighbor. Plaintiff also alleges Tollison produced documents allegedly showing that Plaintiff ran a business (and thus that Plaintiff improperly received unreported income), but Tollison did not produce evidence to prove that Plaintiff received unreported income, and Plaintiff produced documents showing that the business records were fraudulent and that Plaintiff was not the owner of the business. Plaintiff further alleges that Tollison produced records showing that Plaintiff improperly included her deceased son on paperwork submitted to the Housing Authority, but Plaintiff disputed the validity of the records, claiming her handwriting was not on the documents. Plaintiff also stated she did not intentionally add her deceased son to the paperwork.
Plaintiff further alleges that a second and third hearing were held by the defendants on December 14 and 15, but Plaintiff was not present for either meeting. Plaintiff also alleges that in light of the termination of her housing assistance, she received an eviction notice from the local sheriff on December 18, 2023 and a show cause hearing for the eviction was scheduled for January 4, 2024 in a county magistrate's court.
Plaintiff filed this action on December 28, 2023. Plaintiff indicates she brings this action pursuant to 42 U.S.C. § 1983, claiming the defendants violated her right to due process because the informal hearings conducted in December did not provide Plaintiff with adequate procedural safeguards before revoking her federal housing voucher. Specifically, Plaintiff claims she was not afforded a hearing before a neutral factfinder in which she could present evidence. Plaintiff also claims her benefits were terminated before a final determination was made. Plaintiff seeks damages and injunctive relief in this case, including a temporary restraining order that enjoins the defendants from denying Plaintiff a federal housing voucher and directing the defendants to pay Plaintiff's landlord with the federal housing assistance. Plaintiff further seeks to be moved into a different unit in light of the living conditions in her current housing unit.
On January 5, 2023, the court recommended that Plaintiff's motion for a temporary restraining order be denied for Plaintiff's failure to comply with Federal Rule of Civil Procedure 65(b)(1). The court observed that Plaintiff's Complaint was not verified, nor did Plaintiff provide an affidavit as Rule 65 requires. The court also found that the substance of Plaintiff's Complaint and motion failed to address why the court should issue a temporary restraining order before the defendants could be notified of the motion and heard in opposition, as Rule 65 requires. (ECF No. 9.)
On January 12, 2024, Plaintiff filed objections to the court's Report and Recommendation, attaching an affidavit to the objections. (ECF No. 14-1.) In the affidavit, Plaintiff swears that she receives Section 8 housing assistance from the Columbia Housing Authority that covers most of her monthly rent at a property owned by the Columbia Housing Authority but managed by Southern Development Company. Plaintiff swears that Defendant Bracey scheduled a hearing for December 1, 2023 for Plaintiff to contest the termination of her benefits. Plaintiff swears she did not receive any correspondence or a copy of her file before the hearing. She also swears the hearing was held on December 1 but “resumed for another date” because Defendant Tollison made accusations that were not in the termination notice. (Maxwell Aff. ¶ 13, ECF No. 14-1 at 2.) Plaintiff also swears that Bracey ended the meeting because she was contesting the validity of the information she received from the property manager and Tollison refused to say from where she received the information. Plaintiff swears that Bracey stated she would resume the meeting when Tollison produced certain evidence. Plaintiff swears that on December 14, 2023 and December 15, 2023, “a hearing was conducted without my presence, presenting evidence I had no opportunity to contest” and that she received a letter on December 15 indicating that her benefits had been terminated. (Id. ¶¶ 15-16.)
DISCUSSION
A. Applicable Standards
A plaintiff seeking a temporary restraining order or a preliminary injunction must establish: (1) that she is likely to succeed on the merits, (2) that she is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in her favor, and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), reissued in part by 607 F.3d 355 (4th Cir. 2010), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). A plaintiff must make a clear showing that she is likely to succeed on the merits of her claim. Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46. Similarly, she must make a clear showing that she is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at 20-23; Real Truth, 575 F.3d at 347. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. See Real Truth, 575 F.3d at 346-47. Further,
The portions of Real Truth that were reissued by the Fourth Circuit are Parts I and II found at 575 F.3d at 345-47, which are the sections addressing injunctions that are relied upon in the court's Report and Recommendation.
Based on Winter, the Real Truth Court expressly rejected and overruled Blackwelder's sliding scale approach, which allowed a plaintiff to obtain an injunction with a strong showing of a probability of success even if he demonstrated only a possibility of irreparable harm. Real Truth, 575 F.3d at 347; Winter, 555 U.S. at 21-23.
[a] preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.Winter, 555 U.S. at 24 (internal quotation marks and citations omitted).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, 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 Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Plaintiff's Motion
The court concludes that Plaintiff's motion should be denied because Plaintiff fails to provide the court with a sufficient reason to enjoin the defendants before they can be served with notice of the motion and heard in opposition to the motion. Also, considering the Winter factors, the court concludes that Plaintiff fails to establish on this record that a temporary restraining order should be issued.
Rule 65 Defects. A temporary restraining order should be restricted to serving the underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer. Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). Federal Rule of Civil Procedure 65 provides that a court may issue a temporary restraining order without notice to the adverse party only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.Fed. R. Civ. P. 65(b)(1). “The order is designed to preserve the status quo until there is an opportunity to hold a hearing on the application for a preliminary injunction and may be issued with or without notice to the adverse party. Any temporary restraining order granted without notice must comply with the provisions of Rule 65(b) in order to assure the restrained party some measure of protection in lieu of receiving formal notice and the opportunity to participate in a hearing.” 11A Charles Allen Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 2951 (3d ed. Apr. 2023).
Here, the substance of Plaintiff's Amended Complaint, motion, and affidavit fails to address why the court should issue a temporary restraining order before the defendants can be notified of the motion and heard in opposition. See Fed.R.Civ.P. 65(b)(1). Initially, it is unclear if the facts asserted by Plaintiff are still the case and whether enjoining the denial of her Section 8 benefits would provide her any relief at this point. Plaintiff indicated in the original Complaint that her benefits would be terminated on December 31, 2023; yet, in her affidavit that was notarized and filed on January 12, 2024, and in her Amended Complaint filed on February 16, 2024, Plaintiff does not explain whether the benefits were in fact terminated as initially scheduled. Nor does the affidavit or Amended Complaint address what happened at the eviction proceeding that Plaintiff indicated was scheduled for January 4, 2024. Therefore, Plaintiff's various filings in this case create uncertainty as to the current state of affairs and what effect an injunction from the court could have, which prevents the court from assessing whether a temporary restraining order will maintain the status quo such that irreparable harm to Plaintiff would be averted. See Fed.R.Civ.P. 65(b)(1)(A). Further, Plaintiff has provided no explanation as to why the defendants could not be notified about her motion and heard in opposition before any irreparable harm occurs. Therefore, Plaintiff fails to “clearly show” with “specific facts” that irreparable harm will result before the defendants can be heard in opposition to the motion. Fed.R.Civ.P. 65(b)(1).
Winter Factors. Additionally, Plaintiff fails to make a clear showing of a likelihood of success on the merits. See Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46. The proper remedy for a due process violation in this situation is generally an order enjoining the denial of benefits until the defendant provides the proper pre-deprivation procedures. See, e.g., Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 731 (5th Cir. 2008); Clark v. Alexander, 894 F.Supp. 261, 262 (E.D. Va. 1995), affd, 85 F.3d 146 (4th Cir. 1996).
Here, Plaintiff does not explain how the decisionmaker was not impartial or how Plaintiff was prevented from presenting evidence or cross-examining witnesses such that it did not comport with due process. See Clark v. Alexander, 85 F.3d 146, 150 (4th Cir. 1996) (explaining the due process protections required before the termination of public housing benefits). The Amended Complaint and Plaintiff's affidavit confusingly assert that a hearing was held on December 1, 2023 with Plaintiff present but then again on December 14 and 15 without her. Plaintiff admits she was able to present evidence, and though she indicates she could not cross-examine a neighbor, the neighbor was not present as a witness. It is also unclear whether she received notice of the December 14 and 15 hearing or why she was prevented from attending. Plaintiff also does not explain what reasons the defendants ultimately gave for terminating her benefits, nor does she explain how or why those reasons were deficient or failed to comport with due process. Plaintiff's assertion that the defendants presented evidence on December 14 and 15 outside of her presence is conclusory-she fails to explain what evidence was presented, by whom, or what effect it had on the decision.
Finally, even assuming Plaintiff has demonstrated the likelihood of irreparable injury, she has failed to show on this record that the balance of equities and public interest factors weigh in her favor. A temporary restraining order based on this uncertain record would be an extraordinary intrusion on the operation of a public agency and could interfere with its orderly management. See Taylor v. Freeman, 34 F.3d 266, 270 (4th Cir. 1994) (“Mandatory preliminary injunctive relief in any circumstance is disfavored, and warranted only in the most extraordinary circumstances.”) Plaintiff asks the court to order the disbursement of funds that may already be allocated to other recipients and to be provided housing that may or may not be in use by another tenant. The court concludes that the extraordinary nature of this remedy is not justified on such an uncertain record.
RECOMMENDATION
Based on the foregoing, the court recommends the motion for a temporary restraining order be denied without prejudice to Plaintiff's right to seek a preliminary injunction after proper notice and an opportunity to be heard is provided to the defendants.
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).