Opinion
No. 15–P–1556.
12-13-2016
Mary Ann BROWN v. BOSTON HOUSING AUTHORITY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mary Ann Brown, appeals from the dismissal of her 42 U.S.C. § 1983 claim alleging that the defendant Boston Housing Authority (BHA) violated her due process rights in terminating her Section 8 benefits. We affirm.
The BHA administers Section 8 benefits. See 24 C.F.R. § 982.1(a)(1) (1995).
Background. The plaintiff received Section 8 housing subsidies, which supported her rental of an apartment at 135 Hutchins Street in the Dorchester section of Boston, where she resided with her three children. This apartment was the target of a search warrant executed by Federal and local law enforcement personnel, who recovered "drugs, guns and illegal paraphernalia belonging to Plaintiff's 22 year old son, ... who was arrested on the spot."
Following this incident, the BHA notified the plaintiff that it planned to terminate her Section 8 benefits. The plaintiff requested and was given a pretermination hearing. The hearing officer found that termination was justified, but that sufficient mitigating circumstances existed to allow the plaintiff to retain her benefits, provided she entered into "a No Visit No Reside Agreement [agreement] removing [her son] and excluding him from visiting and residing at any Section 8 subsidized unit."
The plaintiff executed the agreement, but the BHA did not follow the hearing officer's decision and refused to "exercis[e] its discretion to enter into [the agreement]." Instead, the BHA terminated the plaintiff's participation in the Section 8 program. To challenge the BHA's decision, the plaintiff filed this lawsuit seeking two remedies: reinstatement of her Section 8 benefits by an action in the nature of certiorari under G.L. c. 249, § 4, and damages under 42 U.S.C. § 1983 on the ground that the BHA's decision not to follow the hearing officer's order was "unsupported by evidence, justification or reasoning, and it is an abuse of discretion and a violation of the Due Process Clause of [the] United States Constitution." Based on these allegations, the plaintiff and the BHA both moved for judgment on the pleadings. See Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974).
On July 7, 2015, judgment entered in the Housing Court ordering that the plaintiff's benefits be reinstated, but also dismissing the plaintiff's § 1983 claim. The BHA filed its notice of appeal on August 3, 2015. The plaintiff filed her notice of cross appeal on September 1, 2015 (approximately fifteen days late) along with a "motion to extend time for filing notice of appeal." The judge, finding excusable neglect, allowed the plaintiff's motion. This appeal followed.
Just before oral argument, the BHA moved for voluntary dismissal of its appeal, see Mass.R.A.P. 29(b), as amended, 378 Mass. 943 (1979), in which it challenged the reinstatement of the plaintiff's Section 8 benefits. We allowed the motion. Accordingly, only the plaintiff's appeal of the dismissal of her § 1983 claim is before us.
Discussion. "Akin" to a motion under rule 12(b)(6), 365 Mass. 754 (1974), Jarosz v. Palmer, 436 Mass. 526, 530 (2002), "[a] motion for judgment on the pleadings, under rule 12(c), is a challenge to the legal sufficiency of a complaint," Flomenbaum v. Commonwealth, 451 Mass. 740, 742 (2008). "What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). In considering the motion, "all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false." Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 905 (1984). We review the dismissal of the plaintiff's § 1983 claim de novo. Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600 (2010).
To state a cause of action under § 1983, "the plaintiff must allege that some person has deprived [her] of a federal right." Gomez v. Toledo, 446 U.S. 635, 640 (1980). To determine whether the plaintiff sufficiently alleged a deprivation of a Federal right, we review not only the plaintiff's complaint, but also any documents or exhibits referenced by the complaint. See Mass.R.Civ.P. 10(c), as amended, 456 Mass. 1401 (2010) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes").
The plaintiff alleged that the BHA's decision to terminate her participation in the Section 8 voucher program, and not to follow the hearing officer's order, was "unsupported by evidence, justification or reasoning, and it is an abuse of discretion and a violation of the Due Process Clause of [the] United States Constitution." These allegations are insufficient.
"The fundamental requirement of due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner." Duarte v. Commissioner of Rev., 451 Mass. 399, 412 (2008), quoting from Matter of Angela, 445 Mass. 55, 62 (2005). To disregard the hearing officer's decision, the BHA was required to follow the procedures set out in the Federal Housing and Urban Development (HUD) regulations, namely, to "promptly notify the family of the determination, and of the reasons for the determination." 24 C.F.R. § 982.555(f)(3) (1995). The BHA followed the procedures by providing the plaintiff with a letter that constituted its response to the hearing decision, which was attached to the plaintiff's complaint as exhibit D. The BHA stated in this letter that the hearing officer's decision both exceeded his authority and was also "contrary to HUD regulations or requirements, or otherwise contrary to federal, state or local law," both lawful justifications for disregarding the decision. The BHA "does not act at its peril and put the plaintiff's due process rights in jeopardy" just by exercising—even erroneously—its own authority under the same regulations that give the plaintiff her due process rights. Wojcik v. Lynn Hous. Authy., 66 Mass.App.Ct. 103, 116 (2006). See 24 C.F.R. § 982.555 (1995).
Furthermore, "the existence of adequate State remedies for the possible wrongful deprivation of property becomes ‘highly relevant’ to the issue of whether a violation of procedural due process has occurred." Baker v. Gray, 57 Mass.App.Ct. 618, 625 (2003), quoting from Amsden v. Moran, 904 F.2d 748, 755 (1st Cir.1990), cert. denied, 498 U.S. 1041 (1991). Here the plaintiff successfully challenged the BHA's decision using the State remedy provided by G.L. c. 249, § 4. Accordingly, the plaintiff has failed to allege a due process violation, and the judge properly dismissed her § 1983 claim under Mass.R.Civ.P. 12(c). ,
In its brief responding to the plaintiff's cross appeal, the BHA argued that the judge erred in finding that her failure to file a timely cross appeal constituted excusable neglect. We agree. Rather than excusable neglect, the record reveals "a failure of the most elementary principles of intramural communication." Shaev v. Alvord, 66 Mass.App.Ct. 910, 912 (2006). Nonetheless, because the BHA did not file a notice of appeal from the order allowing the plaintiff's motion to file a late appeal, this issue is not properly before us.
We deny the plaintiff's request for double costs.
Judgment affirmed.