Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
BACKGROUND
Plaintiff, proceeding in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. section 1983 on June 19, 2015. The action was reassigned under General Order 05-07 on July 6, 2015.
In the Complaint, Plaintiff alleged that the Housing Authority of the City of Los Angeles ("Housing Authority") and Housing Authority employees unlawfully terminated Plaintiff's "Section 8" housing subsidy. Plaintiff asserted violations of Plaintiff's constitutional due process right and violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), Pub. L. 93-112, Title V, § 504 (Sept. 26, 1973). Plaintiff named as Defendants: (1) the Housing Authority; (2) Housing Authority senior investigator Pedro Vargas; (3) Housing Authority President and CEO Douglas Guthrie; and (4) Housing Authority Administrative Hearing Officer Dale Nowicki.
On July 15, 2015, the Court issued an Order Dismissing Complaint with Leave to Amend. On August 13, 2015, Plaintiff filed a First Amended Complaint, the operative pleading. The First Amended Complaint names as Defendants only the Housing Authority and Pedro Vargas.
On October 14, 2015, Defendants filed a "Motion to Dismiss Plaintiff's First Amended Complaint" ("Motion to Dismiss"), accompanied by a Request for Judicial Notice and exhibits. On November 5, 2015, Defendants filed an additional exhibit. On November 16, 2015, Plaintiff filed an Opposition to the Motion to Dismiss. The Court has taken the Motion to Dismiss under submission without oral argument.
STANDARDS GOVERNING MOTION TO DISMISS
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
The Court must accept as true all non-conclusory factual allegations in the complaint and must construe the complaint in the light most favorable to the plaintiff. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). "Generally, a court may not consider material beyond the complaint in ruling on a Fed.R.Civ.P. 12(b)(6) motion." Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). The Court may consider "only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted). The Court need not accept as true "allegations that contradict matters properly subject to judicial notice or by exhibit." See Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1115 (9th Cir. 2014), cert. denied, 135 S.Ct. 2313 (2015); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) ("[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.").
The Court may not dismiss a pro se complaint without leave to amend unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citations and quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend "unless it determines that the pleading could not possibly be cured by the allegation of other facts") (citation and internal quotations omitted).
OVERVIEW OF SECTION 8 HOUSING CHOICE VOUCHER PROGRAM
As the Ninth Circuit has explained:
The federal government provides rental assistance for low and moderate income families, the elderly, and the disabled through what is known as "the section 8 program." Congress added the section 8 program to the United States Housing Act of 1937 in 1974 by enacting the Housing and Community Development Act of 1974, Pub.L. No. 93-383, § 201(a), 88 Stat. 633, 662-66 (1974) (codified as amended at 42 U.S.C. § 1437f). The express congressional "purpose" of the section 8 program is "aiding low-income families in obtaining a decent place to live and... promoting economically mixed housing." 42 U.S.C. § 1437f(a). The program is managed federally by HUD, and administered locally by public housing authorities ("PHA"). Section 8 tenants must sign a lease and pay a portion of their income toward rent. The remainder of the rent charge is paid by PHA pursuant to a housing assistance payment ("HAP") contract between PHA and the owner....
Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1202 (9th Cir. 2009).
A PHA such as the Defendant Housing Authority may terminate assistance to a family for a number of reasons, including the family's violation of any obligation under the program, fraud, or criminal activity as described in 24 C.F.R. section 982.553. 24 C.F.R. §§ 982.552(c)(1)(i), (iv), (xi). The family's obligations include: (1) the obligation to provide true and complete information to the PHA; and (2) the obligation not to commit fraud or engage in drug-related criminal activity or violent criminal activity. 24 C.F.R. §§ 982.551(b)(4), (k), (l). A PHA may terminate assistance if it determines that any member of the family has violated the obligation not to engage in any drug-related criminal activity. 24 C.F.R. § 982.553(b)(1)(iii). A PHA may terminate assistance because of criminal activity by a household member if the PHA determines, based on a preponderance of the evidence, that the household member has engaged in the activity, regardless of whether the household member has been arrested or convicted for such activity. 24 C.F.R. § 982.553(c). If the family includes a person with a disability, the PHA decision is subject to a consideration of reasonable accommodation. 24 C.F.R. § 982.552(c)(2)(iv).
If a PHA proposes to deny admission for criminal activity shown by a criminal record, the PHA must provide to the subject of the record and to the applicant copies of the criminal record. 24 C.F.R. § 982.553(d)(1). The PHA must give the family an opportunity to dispute the accuracy and relevance of that record in the informal review process. Id . If a PHA proposes to terminate assistance because of criminal activity shown by a criminal record, the PHA must notify the household of the proposed terminating action, and must provide to the subject of the record and to the tenant copies of the criminal record and must also give the family an opportunity to dispute the accuracy and relevance of that record. 24 C.F.R. § 982.553(d)(2).
A PHA must give a Section 8 participant family the opportunity for an informal hearing before it terminates the family's benefits under an outstanding HAP contract. 24 C.F.R. § 982.555(a)(2). The family must be given the opportunity prior to the hearing, to examine any PHA documents that are directly relevant to the hearing. 24 C.F.R. § 982.555(e)(2)(i). If the PHA does not make a document available for examination on request of the family, the PHA may not rely on the document at the hearing. Id . The family has the right to present evidence and to question any witnesses at the hearing. See 24 C.F.R. §§ 982.555(e)(5). The hearing officer may consider evidence regardless of the standards of admissibility applicable in judicial proceedings. 24 C.F.R. § 555(e)(5).
Each PHA must "administer the program in conformity with the Fair Housing Act, Title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act." 24 C.F.R. § 982.53(b)(1).
SUMMARY OF ALLEGATIONS OF FIRST AMENDED COMPLAINT
Although the First Amended Complaint ("FAC") is somewhat unclear, it does appear that Plaintiff's claims all arise from the termination of a housing subsidy and related administrative proceedings.
Plaintiff allegedly entered the "Section 8" federal housing subsidy program on October 8, 2007, assertedly after a criminal background check which allegedly included Plaintiff's "drug related history" (FAC, p. 8). Plaintiff alleges that, on or about July 12, 2013, Defendant Vargas violated federal regulations and the Housing Authority's administrative plan by assertedly failing to provide to Plaintiff a copy of Plaintiff's criminal history information and to afford Plaintiff an opportunity to dispute the accuracy and relevancy of his criminal record prior to sending Plaintiff a Notice of Termination of his housing subsidy (id., p. 2).
Plaintiff allegedly received a "Notice of Intended Action" from Defendant Vargas, dated July 29, 2013, notifying Plaintiff that the Housing Authority intended to terminate Plaintiff's housing subsidy on the grounds of drug-related activity and fraud (id.). Plaintiff allegedly requested a review of the evidence, reasonable accommodation and "consideration of mitigating factors" (id., pp. 6-7). On or about August 7, 2013, Plaintiff requested an administrative hearing (id.).
Plaintiff allegedly met with Vargas during the first week of August 2013 (id., p. 7). Vargas allegedly referred to a pending drug case against Plaintiff, assertedly stating that the evidence in that case "was compelling and upon conviction would terminate" Plaintiff's housing subsidy (id.). Vargas allegedly did not present Plaintiff with any police reports, criminal history reports, court documents, Housing Authority eligibility questionnaires or investigative reports, or with copies of federal regulations and the administrative plan (id.). As a result, Plaintiff allegedly was surprised at the hearing by assertedly false allegations of his purported arrests and convictions (id., p. 4). A hearing officer assertedly terminated Plaintiff's housing subsidy because of a finding of fraud that was based on the allegedly false allegations of arrest and convictions (id., pp. 7-8).
Allegedly, Plaintiff previously had authorized the Housing Authority to obtain Plaintiff's criminal record information (id., pp 2-3).
Defendants also allegedly failed to respond to Plaintiff's purported request for reasonable accommodation of Plaintiff's "drug addiction disability" prior to an administrative hearing and allegedly failed to forward the purported request "to the appropriate staff for full review and process according to the agency's administrative plan prior, and during[, ] the administrative hearing" (id., pp. 3-4).
The Housing Authority allegedly violated federal regulations and its administrative plan by failing to "exclude" evidence which the Los Angeles County Superior Court assertedly found to have been withheld improperly from Plaintiff in the administrative proceedings (id., p. 4). Plaintiff allegedly filed a petition for mandamus which resulted in a remand for a new administrative hearing (id., p. 14). Plaintiff allegedly filed a "Motion to Exclude Evidence" prior to the new administrative hearing on February 5, 2015, but the hearing officer at the second hearing assertedly denied the motion (id., p. 14).
The First Amended Complaint alleges four claims for relief. Claims I and II allege that Defendants violated due process by assertedly failing to notify Plaintiff concerning the criminal history information Defendants had obtained and by allegedly failing to afford Plaintiff and his family the opportunity to dispute the accuracy of Plaintiff's criminal history record (id., pp. 5-8). These actions assertedly resulted in the loss of Plaintiff's housing subsidy after an allegedly unfair hearing (id.).
Claim III purports to allege a Rehabilitation Act violation. Plaintiff alleges that, on July 25, 2013, Plaintiff provided Defendant Vargas with a request for reasonable accommodation and for consideration of mitigating circumstances related to Plaintiff's purported "drug addiction disability" (id., p. 8). Defendant Vargas allegedly failed to forward the request to the "appropriate coordinator for process, " purportedly in violation of the Housing Authority's administrative plan (id., p. 9). Vargas allegedly discriminated against Plaintiff, who supposedly had a "disability drug addiction with a history of addiction" (id., p. 10). The Housing Authority allegedly failed to acknowledge Plaintiff's purported reasonable accommodation request after Plaintiff assertedly submitted the request to the hearing officer on March 26, 2015 (id.)
In Claim IV, Plaintiff alleges that the Housing Authority violated due process, federal regulations and the administrative plan by failing to "exclude" evidence at the second administrative hearing (id., p. 11-14).
Claim IV also contains allegations which are redundant to those made in Claims I and II.
Plaintiff seeks compensatory damages and damages for emotional distress and "Loss of Profits" (id., pp. 14-15). Plaintiff also seeks punitive damages in the sum of $14 million and an injunction "to exclude evidence when the law provides its exclusion and the agency is found to have breach[ed] its duty to provide such discovery related evidence" (id.).
STATE ADMINISTRATIVE AND JUDICIAL PROCEEDINGS
The Court grants Defendants' unopposed Request for Judicial Notice ("RJN") of records of the administrative proceedings and court records. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds, Astoria Federal Savings & Loan Ass'n v. Solimino, 501 U.S. 104 (1991) (public records of administrative proceedings are properly the subject of judicial notice); Quintanilla v. Gates, 2004 WL 1661540 at *2 n.1 (C.D. Cal. 2004) (taking judicial notice of court docket). These records show the following:
Background
Plaintiff began receiving Section 8 benefits in 2002 (RJN 173, 175). On June 26, 2011, Plaintiff executed and verified an eligibility questionnaire in which Plaintiff answered "no" to the question whether he or anyone in his household had ever been convicted of a crime other than a traffic violation (RJN 110-18).
On July 19, 2012, Plaintiff executed and verified an eligibility questionnaire in which Plaintiff answered "yes" in response to the question whether he or anyone in his household had ever been convicted of any crime other than a traffic violation, and indicated he had suffered a 1998 conviction for "automotive driving without permission" (RJN 100-08).
On November 28, 2012, the State charged Plaintiff with a felony violation of California Health and Safety Code section 11352(a) (transportation, sale and furnishing of a controlled substance) (RJN 9).
On July 11, 2013, Defendant Vargas signed an "Investigative Report" alleging that Plaintiff had committed fraud by failing to disclose, on two eligibility questionnaires, Plaintiff's three prior felony convictions and three prior misdemeanor convictions (RJN 69-70). The Investigative Report also alleged that a criminal complaint had been filed charging Plaintiff with possession of a controlled substance for sale (RJN 69-70). Also on July 11, 2013, the Housing Authority issued a "Notice of Intended Action, " signed by Defendant Vargas, indicating the Housing Authority had discovered evidence that Plaintiff or members of Plaintiff's family had participated in drug-related criminal activity and had committed fraud in connection with a federal housing program (RJN 141). The "Notice of Intended Action" stated that if Plaintiff did not provide adequate proof that this information was incorrect, the Housing Authority would take action to terminate Plaintiff's participation in the Section 8 program (id.).
On July 22, 2013, Plaintiff responded, denying that he had engaged in drug trafficking at his residence, stating that he had a drug problem and was in drug counseling, and enclosing documents (RJN 142-62; FAC, Ex. F).
On July 29, 2013, the Housing Authority served Plaintiff a "Notice of Intended Action and Right to Hearing" (FAC, Ex. C). The Notice informed Plaintiff that the Housing Authority had determined that Plaintiff had participated in drug-related activity within the meaning of 24 C.F.R. section 982.553 and had committed fraud in connection with a federal housing program in violation of 24 C.F.R. section 982.551 (id.)
On October 28, 2013, Plaintiff pled nolo contendere to a violation of California Health and Safety Code section 11352(a) (RJN 16-17).
The First Administrative Hearing and Decision
On November 21, 2013, a hearing was held before Hearing Officer Andre Brown (RJN 164-93). The Housing Authority investigator submitted, among other things, a copy of: (1) a 2013 criminal complaint filed in the Los Angeles County Superior Court charging Plaintiff with felony possession of a controlled substance for sale; and (2) Plaintiff's criminal history report allegedly showing Plaintiff had suffered three felony convictions and three misdemeanor convictions which Plaintiff assertedly had not disclosed to the Housing Authority (RJN 167-72).
At the hearing, Plaintiff acknowledged that he had been convicted in the 2013 drug case and said he had received "a drug program" sentence (RJN 184). Plaintiff argued that he thought the question on the eligibility questionnaire concerning his criminal history sought information only for convictions suffered during the current year (RJN 176, 185). Plaintiff acknowledged, however, that in the 2012 questionnaire Plaintiff had disclosed a conviction for driving without the owner's consent in 1998 or 1999, but still insisted he had not read the eligibility questionnaire "thoroughly" and had assumed it required disclosure only of "current activities" (RJN 183, 186-87). When the investigator pointed out that the eligibility form asked if Plaintiff "ever" had been convicted of a crime, Plaintiff said "it must have been a little vague to me and I just misunderstood it" (RJN 193).
Plaintiff also said some of the arrest information arose out of a domestic situation in 2011 and 2012 as to which Plaintiff assertedly had obtained a restraining order (RJN 176). Plaintiff said that the "last incident" (i.e. the 2013 drug charge) was "something that happened" and was a "mistake" (RJN 176). Plaintiff admitted he had given drugs to an undercover agent and that this was something in which Plaintiff should not have gotten involved, but claimed that the drug transaction had not occurred at Plaintiff's residence (id.). Plaintiff disclosed that he had been undergoing drug counseling and treatment and Plaintiff submitted related documentation (RJN 177-78, 188-89). Plaintiff acknowledged that he had "made some bad choices" and apologized for his past drug use (RJN 191). Plaintiff asked the hearing officer to take into consideration Plaintiff's alleged attempts to take care of his family and to "move forward" (RJN 190).
On January 3, 2014, the Hearing Officer issued a decision upholding the termination of Plaintiff's Section 8 benefits, ruling that the evidence was sufficient to support the allegations that Plaintiff had failed to disclose his criminal arrests and convictions and had engaged in drug-related criminal activity (see RJN 255).
The First Administrative Mandamus Proceeding
On April 30, 2014, Plaintiff filed a petition for administrative mandamus in the Los Angeles County Superior Court, in case number BS147769 (see Docket in Moore v. Housing Authority of the City of Los Angeles, Los Angeles Superior Court case number BS147769).
The Court takes judicial notice of the dockets of Plaintiff's two administrative mandamus actions in the Los Angeles County Superior Court, available on the Los Angeles County Superior Court's website at http://www.lacourt.org. See Mir v. Little Company of Mary Hosp., 844 F.2d at 649.
The Superior Court issued a tentative decision denying the petition (RJN 255-65). The Superior Court held a hearing on October 28, 2014 (see "Reporter's Transcript on Appeal October 28, 2014, " attached to Defendants' "Notice of Lodgment Transcript, etc." filed November 5, 2015 ["October 28, 2014 R.T."]). At the hearing, Plaintiff argued that federal regulations required the agency to provide Plaintiff with a copy of his criminal record prior to the hearing (id. at 4-5). The Superior Court agreed, but pointed out that any remedy merely would be a remand for a new hearing (id. at 8-9). Plaintiff agreed the issue probably was a "technicality" (id. at 9). The Housing Authority investigator pointed out that Plaintiff had admitted the 2013 drug conviction (id. at 10, 12). The court said it would remand for a new hearing, even though the court did not see how another hearing would yield a different outcome (id. at 13-15). The court did not adopt its merits tentative (id. at 15).
Plaintiff appealed (see Docket in Moore v. Housing Authority of the City of Los Angeles, California Court of Appeal (2d District) case number B261142). On April 2, 2015, the Court of Appeal dismissed the appeal on the Housing Authority's unopposed motion (id.).
The Court takes judicial notice of the docket in California Court of Appeal (2d District) case number B261142, available on the California courts' website at www.courts.ca.gov. See Mir v. Little Company of Mary Hosp., 844 F.2d at 649.
The Second Administrative Hearing and Decision
On April 10, 2015, a hearing occurred before Hearing Officer Dale Nowicki (RJN 194-254). Plaintiff submitted a motion to exclude "all discovery-related evidence" and all testimony and documents presented at the previous hearing on the ground that the Housing Authority had failed to disclose Plaintiff's criminal history record prior to the first hearing, allegedly in violation of 24 C.F.R. section 982.555(e)(2)(i) (RJN 48-55). At the hearing, Hearing Officer Nowicki denied the motion to exclude the evidence (RJN 197-98, 201-03).
Plaintiff had moved to disqualify Hearing Officer Brown (RJN 38-41).
On the merits, Plaintiff argued that, because Plaintiff had consented to the release of his criminal history information to the Housing Authority when he entered the Section 8 program, the agency must have been aware of Plaintiff's criminal record, so Plaintiff purportedly was not required to disclose his convictions on the eligibility questionnaire (RJN 213-14, 221). Plaintiff admitted he had suffered three prior felony convictions and three prior misdemeanor convictions, but claimed he could not recall his criminal history at the time he filled out the eligibility questionnaire except for the most recent incident (RJN 220-22). Plaintiff also stated: (1) Plaintiff's criminal history prior to the 2013 drug conviction incident was "obsolete" and irrelevant; (2) Plaintiff's criminal history was "damaging" and Plaintiff should have sought expungement; and (3) Plaintiff supposedly had not intended the inaccuracies (RJN 218-20, 239-41). Plaintiff said the 2013 conviction arose out an incident that did not occur at Plaintiff's residence, and that Plaintiff "served a year in a drug program" (RJN 228). Plaintiff submitted letters concerning his alleged progress in drug treatment programs (RJN 230).
On April 10, 2015, the Hearing Officer issued an Amended Notice of Decision: (1) denying Plaintiff's motion to exclude evidence as moot because Plaintiff had received the Housing Authority's discovery; and (2) upholding the Housing Authority's proposal to terminate Plaintiff's Section 8 housing assistance, based on findings that Plaintiff had engaged in drug-related activity while a program participant and had committed fraud by failing to list all of his criminal convictions on the eligibility questionnaires (RJN 1-6).
The Second Administrative Mandamus Proceeding
On June 15, 2015, Plaintiff filed another petition for writ of administrative mandamus in the Los Angeles County Superior Court, in case number BS156088 (RJN 266-320). According to the Superior Court's docket, that petition is still pending, and a hearing presently is scheduled for March 22, 2016.
DEFENDANTS' CONTENTIONS
Defendants contend, inter alia:
1. The action allegedly is barred by the "Rooker-Feldman" doctrine;
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
2. Plaintiff's Rehabilitation Act claim allegedly fails because Plaintiff assertedly did not request reasonable accommodation from the Housing Authority; and, in any event, Plaintiff's alleged addiction to illegal narcotics allegedly was not a disability requiring reasonable accommodation;
3. Section 1983 allegedly provides no remedy for violations of federal regulations;
4. Plaintiff allegedly received due process; and
5. The decision to terminate Plaintiff's Section 8 subsidy allegedly was "substantively correct."
DISCUSSION
I. The Rooker-Feldman Doctrine Does Not Apply.
Under the "Rooker-Feldman" doctrine, a federal district court lacks subject matter jurisdiction to review state court decisions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). The proper court in which to obtain such review is the United States Supreme Court, by petition for writ of certiorari. District of Columbia Court of Appeals v. Feldman, 460 U.S. at 476; 28 U.S.C. § 1257. Rooker-Feldman applies to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Industries, Inc., 544 U.S. 280, 294 (2005). "[T]he de facto appeals' barred by Rooker-Feldman are those in which a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court.'" Vasquez v. Rackauckas, 734 F.3d 1025, 1036 (9th Cir. 2013) (citation omitted; emphasis deleted). "In contrast, if a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.'" Id . (citation omitted). Here, Plaintiff challenges the actions of Defendants, not the actions of the Superior Court.
Furthermore, in this Circuit "[p]roceedings end for Rooker-Feldman purposes when the state courts finally resolve the issue that the federal court plaintiff seeks to relitigate in a federal forum, even if other issues remain pending at the state level." Mothershed v. Justices of Supreme Court, 410 F.3d 602, 604 n.1 (9th Cir. 2005). Here, the only state court judgment now existing is the Superior Court's judgment of remand, which did not "resolve the issues" presented in the instant action. Accordingly, Rooker-Feldman does not apply.
II. Plaintiff Cannot Maintain Section 1983 Claims for Alleged Violations of Federal Regulations or the Administrative Plan.
Plaintiff's section 1983 claims based on alleged violations of federal regulations and the Housing Authority's related administrative plan must be dismissed without leave to amend and with prejudice. Section 1983 does not provide a remedy for alleged violations of federal regulations. See Save Our Valley v. Sound Transit, 335 F.3d 932, 939-44 (9th Cir. 2003) (federal agency regulations not enforceable pursuant to section 1983); Nozzi v. Housing Authority of City of Los Angeles, 425 Fed.App'x 539, 543 (9th Cir. 2011) (Section 8 regulations not enforceable pursuant to section 1983). Therefore, the claims for alleged violations of federal regulations or the Housing Authority's administrative plan contained in Claims I, III and IV must be dismissed without leave to amend and with prejudice.
III. Plaintiff Has Not Alleged, and Cannot Allege, a Cognizable Rehabilitation Act Claim.
A. Background
In the First Amended Complaint, Plaintiff alleges that he mailed to Defendants on July 25, 2013, a letter and documents requesting a reasonable accommodation (FAC, pp. 6-7). Plaintiff attaches to the pleading a letter which Plaintiff alleges constituted a request for accommodation and other documents, including a letter from a counselor for a program through which Plaintiff allegedly received alcohol, drug and parental skills counseling, a Los Angeles Dependency Court Case Plan, and a drug testing document allegedly prepared for the Department of Children and Family Services (FAC, p. 8; Exs. F, G, H, I).
In the referenced letter addressed to the Housing Authority and dated "July 22, 1013" [sic], Plaintiff stated that he purportedly had not used his home for drug trafficking, acknowledged Plaintiff's drug problem, and said he had undergone counseling and drug testing (FAC, Ex. F). The letter stated that Plaintiff blamed himself and a "bad relationship" with a female for his drug problem, and that Plaintiff was willing to "get help and have testing done" to show that Plaintiff was "clean" and making changes to his life (id.). The letter concluded: "Please reconsider and grant my status in keeping my housing so that I can provide Housing for me and my family and I vow not to ever to have [sic] this come back again in my life." (id.).
In his Opposition, Plaintiff alleges that Housing Authority's administrative plan provided that a request for reasonable accommodation be referred to the Director of Planning and Accessibility Coordinator for a final determination, and provided for a two-tier grievance system in the event the request was denied (Opposition, p. 5). According to Plaintiff, Defendants did not follow these procedures.
B. Discussion
The Rehabilitation Act provides
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a).
"A plaintiff bringing suit under § 504 must show (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (citation omitted). "A failure to provide reasonable accommodation can constitute discrimination under section 504 of the Rehabilitation Act." Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003). To show discrimination based on failure reasonably to accommodate, Plaintiff must show that: (1) he suffers from a disability as defined by the Rehabilitation Act; (2) Defendants knew or reasonably should have known of Plaintiff's disability; (3) accommodation of the disability may be necessary to afford Plaintiff an equal opportunity to use and enjoy his dwelling; and (4) Defendants refused to make a reasonable accommodation. See Giebeler v. M & B Associates, 343 F.3d 1143, 1147 (9th Cir. 2003). To demonstrate that an accommodation is necessary, Plaintiff "must show that, but for the accommodation, [Plaintiff] likely will be denied an equal opportunity to enjoy the housing of [his] choice." Id. at 1155 (citation and internal quotations omitted; brackets added). "Without a causal link between the defendants' policy and the plaintiff's injury, there can be no obligation on the part of defendants to make a reasonable accommodation." Id . (citation and internal quotations omitted). An accommodation is reasonable "when it imposes no fundamental alteration in the nature of the program or undue financial or administrative burdens." Id . (citation and internal quotations omitted).
Although Giebeler was a disability discrimination case brought pursuant to the federal Fair Housing Amendments Act, 42 U.S.C. section 3601 et seq. ("FHAA"), the reasonable accommodation standards applicable in FHAA cases and in Rehabilitation Act cases are essentially the same. Giebeler v. M & B. Associates, 343 F.3d at 1149.
Defendants contend the record does not show that Plaintiff made any request for accommodation for a "recognized disability." The term "individual with a disability" as used in the Rehabilitation Act does not include an individual who is currently engaging in the illegal use of drugs. 29 U.S.C. § 705(20)(C)(i). However, this provision does not exclude individuals who have successfully completed, or are participating in, a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs, or who have otherwise been rehabilitated successfully and are not using drugs. 29 U.S.C. § 705(20)(C)(ii). Plaintiff's allegations, taken as true for purposes of the Motion to Dismiss, suffice to plead that Plaintiff was an individual with a disability within the meaning of the Rehabilitation Act.
Plaintiff's Rehabilitation Act claim fails for other reasons, however. Plaintiff's July 22, 2013 letter did not request any alleged "accommodation" other than reinstatement of Plaintiff's Section 8 housing benefits. Even assuming arguendo the letter constituted a request for accommodation in the form of a reversal of the termination decision, Plaintiff has not alleged a cognizable Rehabilitation Act violation. At the second hearing, the hearing officer did not uphold the termination of benefits based on Plaintiff's alleged drug addiction. Rather, the Hearing Officer found that Plaintiff had engaged in drug-related activity (i.e., a drug sale which Plaintiff admitted at the hearing) while a program participant and that Plaintiff had committed fraud by failing to list all of his criminal convictions on the eligibility questionnaires. Plaintiff's alleged personal drug addiction was not the basis for the decision. Regardless of any potential accommodation of Plaintiff's purported disability, Plaintiff's drug conviction and fraud rendered Plaintiff ineligible to retain his Section 8 benefits. Accordingly, there was no "causal link" between Defendants' alleged policy and Plaintiff's alleged injury. See Giebeler v. M & B Associates, 343 F.3d at 1155.
Furthermore, the allegedly requested accommodation seeking reinstatement of Plaintiff's Section 8 housing benefits was clearly unreasonable. Such accommodation would have required the agency to violate federal law and regulations by according Section 8 benefits to an individual who was not eligible to receive those benefits by reason of his drug-related activity and fraud. See Doe v. Housing Authority of Portland, 2015 WL 758991, at *6 (D. Or. Feb. 23, 2015) ("Plaintiff's requested accommodation is patently unreasonable because if granted, it would violate federal regulations.") (citations omitted).
For the foregoing reasons, Plaintiff has not alleged, and cannot allege, a cognizable reasonable accommodation claim based on his alleged drug addiction. Accordingly, Plaintiff's Rehabilitation Act claim must be dismissed without leave to amend and with prejudice.
IV. The First Amended Complaint Does Not Plead Any Cognizable Due Process Violation.
An individual receiving Section 8 benefits has a due process protected property interest in those benefits. Ressler v. Pierce, 692 F.2d 1212, 1215-16 (9th Cir. 1982) (Section 8 applicant); Bezi v. Camacho, 2012 WL 5519386, at *8 (C.D. Cal. Sept. 27, 2012), adopted, 2012 WL 5512558 (C.D. Cal. Nov. 7, 2012) (individual facing termination of Section 8 benefits). At a minimum, the Due Process Clause requires "that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
In Claims I and II, Plaintiff asserts that Defendants violated Due Process by allegedly failing to provide pre-hearing discovery to Plaintiff prior to the first administrative hearing. These claims lack merit as a matter of law. "[T]here is no constitutional right to pretrial discovery in administrative proceedings." Kelly v. United States Environmental Protection Agency, 203 F.3d 519, 523 (7th Cir. 2000) (citation omitted); accord, Banister v. U.S. Dep't of the Treasury, 2011 WL 7109220, at *4 (N.D. Cal. Mar. 10, 2011), aff'd, 499 Fed.App'x 668 (9th Cir. 2012); Clancy v. Office of Foreign Assets Control of U.S. Dep't of Treasury, 2007 WL 1051767, at *7 (E.D. Wis. Mar. 31, 2007), aff'd, 559 F.3d 595 (7th Cir. 2009); Weinberg v. Commodity Futures Trading Comm'n, 699 F.Supp. 808, 813 (C.D. Cal. 1988), aff'd, 884 F.2d 1396 (9th Cir. 1989) (unpublished). Moreover, the Due Process Clause does not require a PHA such as the Housing Authority sua sponte to provide a recipient of Section 8 housing benefits with documents reflecting that persons's own criminal record. Cf. United States v. Agurs, 427 U.S. 97, 103 (1976) (rule of Brady v. Maryland, 373 U.S. 83 (1963), requiring prosecution's disclosure, in a criminal case, of evidence favorable to defense, only applies to evidence "known to the prosecution but unknown to the defense").
Furthermore, to the extent Plaintiff alleges that Defendants violated federal regulations by failing to provide Plaintiff with a copy of his criminal record prior to the first administrative hearing, Plaintiff received due process because Plaintiff received an adequate remedy in the form of an administrative mandamus proceeding and a remand for a new hearing. See Raditch v. United States, 929 F.2d 478, 488-82 (9th Cir. 1991) (where deprivation of plaintiff's worker's compensation benefits was due to unauthorized act of a government official in violation of agency procedures, and subsequently a hearing officer recognized the error, vacated the termination order and remanded for a de novo termination of plaintiff's status, plaintiff received all the process he was due).
The Due Process violation alleged in Claim IV also is insufficient as a matter of law. As indicated above, there is no right to constitutional discovery in administrative proceedings. It follows that nothing in the Constitution requires an administrative hearing officer to exclude evidence as a discovery sanction.
For the foregoing reasons, the Due Process claims alleged in Claims I, II and IV must be dismissed without leave to amend and with prejudice.
CONCLUSION
A court "considers five factors in assessing the propriety of leave to amend - bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (citation omitted). Futility of amendment alone can justify dismissal without leave to amend. See United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001). Here, as the foregoing discussion demonstrates, any amendment would be futile. Accordingly, the Court should dismiss the First Amended Complaint and the action without leave to amend and with prejudice.
In view of this recommended disposition, the Court need not and does not determine whether res judicata or collateral estoppel bars Plaintiff's claims.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) granting Defendants' Motion to Dismiss; and (3) dismissing the First Amended Complaint and the action without leave to amend and with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.