Opinion
C. A. 4:23-1223-RBH-TER
04-11-2023
Eshawn Jessica Scipio, Plaintiff, v. Housing Authority of Hartsville a/k/a Hartsville Housing Authority, Executive Director Kim Funderburk, in her individual and official capacities, Public Housing Director Tomika Berry, in her individual and official capacities, and Section 8 Clerk Tiffany Bishop, in her individual and official capacities, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pro se litigant. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
This complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon, 574 F.2d at1151. Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a [court] should view such pro se complaints does not transform the court into an advocate.”).
DISCUSSION
Plaintiff's Complaint and attachments include over one hundred pages. (ECF No. 1, 1-1, 1-2). Plaintiff's allegations are in regard to several situations involving the housing authority where she resided and received government assistance.
Plaintiff alleges Defendants committed numerous violations of 42 U.S.C. § 1982. Section 1982 is “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” Plaintiff makes no allegations as to race in her voluminous complaint. Plaintiff has failed to state a claim under § 1982.
Plaintiff alleges Defendants have committed violations of 18 U.S.C. § 1708 and § 1725. These are criminal mail statutes under which Plaintiff cannot pursue a civil action. Long ago, it was established that criminal statutes cannot be enforced by civil actions. United States v. Claflin, 97 U.S. 546 (1878); Dennison v. Delany, No. 2:21-CV-03717-RMG-MHC, 2022 WL 379935, at *3 (D.S.C. Jan. 7, 2022), report and recommendation adopted, 2022 WL 263325 (D.S.C. Jan. 28, 2022). Plaintiff has failed to state a claim under these criminal statutes.
Plaintiff's factual allegations include: misapplication of a money order in the amount of $300/increasing the security deposit (ECF No. 1 at 4-8); housing condition issues with tub, tiles, and bugs, which resulted in her child's hospitalization with asthmatic reaction (ECF No. 1 at 8-10); issues involving a report of unreported income (ECF No. 1 at 14); issues involving denial of a records request by Plaintiff regarding tenant and income reports (ECF No. 1 at 15); and rent adjustment increase from $396 to $912.
Plaintiff has pleaded jurisdiction under the Fair Housing Act. Plaintiff pleads 42 U.S.C. § 3617 regarding interference and intimidation, which covers rights under § § 2603, 3604, 3605, 3606; § 3604 covers rentals. Section 3604 is in part in regard to race, gender, familial status, and handicaps. Plaintiff has not pleaded her race. Liberally construed, Plaintiff has pleaded that a resident of the rental has a handicap in her son's asthma to surpass summary dismissal at this procedural stage. Section 3613 provides a private right of action for alleged discriminatory housing practices.
Plaintiff also alleges her claims are under the Fourteenth Amendment, that Defendants have violated her due process rights. (ECF No. 1 at 24). Such an action would be under § 1983 liberally construing Plaintiff's allegations as to due process. Grier v. United States Dep't of Hous. & Urb. Dev., No. 21-CV-2165, 2022 WL 16575705, at *5 (D. Md. Nov. 1, 2022). In Wright v. Roanoke Redev. and Hous. Auth., 479 U.S. 418, 427-429 (1987), the United States Supreme Court specifically held that tenants in public housing could bring suit under § 1983 in order to challenge the Housing Authority's rent calculations.
Further, there are specific procedures a Public Housing Authority (PHA) such as defendant must follow when reexamining the income of a dwelling unit. 24 C.F.R. § 886.124. Some of Plaintiff's allegations involve the voucher program, which is under 42 U.S.C. § 1437f(o) and includes provisions about payment standards, amount calculations for monthly assistance, reviews of income, inspections of units/conditions, and rent reasonableness. Liberally construed, Plaintiff's allegations appear in part to involve the following. A PHA cannot take any adverse action against a participant until the PHA has taken appropriate steps to independently verify information relating to: (a) the amount of the wages or income; (ii) whether such participant actually had access to such wages or income; and (iii) the period when the participant actually received such wages or income. 42 U.S.C. § 1437f(o)(5)(A); 42 U.S.C. § 3544(c)(2)(B). A PHA is required to inform the participant of the findings made and the basis of such verified information and shall give the participant an opportunity to contest such findings, in the same manner as applies to other information and findings relating to eligibility factors under the voucher program. 42 U.S.C. § 1437f(o)(5)(A) (2012); 42 U.S.C. § 3544(c)(2)(C) (2012); 24 C.F.R. § 5.236(c)
(2013). If the PHA seeks to terminate or reduce the family's assistance, i.e. increase the rent payment Plaintiff owes because of additional income, they must do so in accordance with HUD regulations and only after the expiration of the notice period. 42 U.S.C. § 3544(b) (2012); 24 C.F.R. § 5.236(c). Prior to a hearing involving the PHA, the family must be given the opportunity to examine and copy documents directly related to the hearing. 24 C.F.R. § 982.555(e)(2).
At this procedural stage, Plaintiff appears to state a plausible claims involving the Fair Housing Act and the Fourteenth Amendment under § 1983, sufficient to surpass summary dismissal on these particular claims.
RECOMMENDATION
Accordingly, it is recommended that the district court partially summarily dismiss the complaint in this case with prejudice. Plaintiff's claims involving allegations as discussed above as to the Fair Housing Act and the Fourteenth Amendment should proceed and the court has authorized the issuance and service of process on the Defendants solely on those claims. As noted above, it is recommended that the alleged claims under 42 U.S.C. § 1982 and 18 U.S.C. § § 1708, 1725 be summarily dismissed for failure to state a claim upon which relief may be granted.
Plaintiff's 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
Post Office Box 2317
Florence, South Carolina 29503
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).