Clifford v. Homes

• Decision Date: 31 July 2021
• Docket Number: 2:18-cv-00522-RJS-DAO
• Court: U.S. District Court — District of Utah
• Parties: CHARIE CLIFFORD, Plaintiff, v. DEWBURY HOMES and HOUSING AUTHORITY SALT LAKE COUNTY, Defendants.

CHARIE CLIFFORD, Plaintiff,
v.
DEWBURY HOMES and HOUSING AUTHORITY SALT LAKE COUNTY, Defendants.

No. 2:18-cv-00522-RJS-DAO

United States District Court, D. Utah, Central Division

July 31, 2021

Robert J. Shelby Judge

REPORT AND RECOMMENDATION TO DISMISS, IN PART, PLAINTIFF'S AMENDED COMPLAINT (DOC. NO. 20)

Daphne A. Oberg United States Magistrate Judge

On June 29, 2018, pro se Plaintiff Charie Clifford, proceeding in forma pauperis, filed this action on behalf of herself and her minor child against DewBury Homes (“DewBury”) and the Housing Authority of Salt Lake County (“Housing Authority”). (Am. Compl., Doc. No. 20.) Because Ms. Clifford lacks standing to make claims on behalf of her child, this court lacks subject-matter jurisdiction over some of the claims in the amended complaint^[1] (hereinafter the “Complaint”), and several others fail to state a claim on which relief may be granted, the undersigned^[2] RECOMMENDS the district judge DISMISS the complaint, in part.

1

BACKGROUND

On December 14, 2012, Ms. Clifford entered a HARP housing assistance program contract with the Housing Authority. (Am. Compl. 10, ^[3] Doc. No. 20.) The HARP program is funded through the Home Investment Partnership Program and is designed to transition individuals out of homelessness. (Id.) Although the relationship between the defendants is not entirely clear from the Complaint, it appears the housing assistance program was run by the Housing Authority and DewBury served as the landlord. (Id.) Ms. Clifford raises various grievances against the defendants related to her experience with the HARP housing assistance program.

Some of Ms. Clifford's claims are clearer than others, but she appears to allege the following:

1. Her rental unit at 2770 South 2805 West in West Valley City, Utah, failed to meet the required Housing and Urban Development (“HUD”) safety standards-and the defendants falsely claimed the unit did meet these standards. (Id. at 10-11, 17.)

2. DewBury improperly modified Ms. Clifford's lease in violation of 24 C.F.R. 247.4 part (d). (Id. at 10, 18.)

3. Ms. Clifford was improperly evicted in 2014 from the West Valley property pursuant to a “no cause” eviction notice, and the Housing Authority failed to provide proper remedial help. (Id. at 11, 18.)

4. The Housing Authority improperly terminated Ms. Clifford's housing assistance. (Id. at 12, 21.)

2

5. Ms. Clifford was improperly removed from the waiting list for permanent Section 8 housing and never received it. (Id. at 12, 20.)

6. Ms. Clifford was discriminated against and treated disparately. (Id. at 13, 15, 26.)

7. The Housing Authority failed to forward the remainder of Ms. Clifford's security deposit to another rental housing group, the Academy Parks Projects. (Id. at 22-23.)

8. Brandy Olsen of DewBury made a false statement regarding the “no cause” eviction which caused Ms. Clifford to be denied future housing assistance. (Id. at 15, 26, 28.)

9. Lastly, Ms. Clifford makes various allegations against nonparties Academy Parks and the Midvale shelter, including harassment, improper eviction, trespass, conversion, and breach of contract. (Id. at 12-14, 23, 25-26.)

Ms. Clifford appears to style her Complaint, in part, as an administrative appeal. (Id. at 4, 14.)

Ms. Clifford filed her original complaint on July 3, 2018. (Compl., Doc. No. 3.) At that time, she filed a motion to appoint counsel, (Doc. No. 4), which was denied, (Doc. No. 6). After the Housing Authority filed an answer to the complaint, (Doc. No. 7), Ms. Clifford filed a motion to amend her complaint, (Doc. No. 13). The court granted this motion. (Doc. No. 19.) In December 2018, Ms. Clifford filed another motion to appoint counsel. (Doc. No. 28.) The then-assigned magistrate judge granted this motion in part, appointing counsel “for the limited purpose of consulting with Ms. Clifford and assisting her in determining how to best proceed in this case.” (Order Granting in Part Mot. for Appointment of Counsel 3, Doc. No. 30.) Andrew M. Morse ultimately accepted this pro bono appointment. At a hearing on June 4, 2020, Ms. Clifford indicated she had consulted with Mr. Morse about her case, but she was unsure whether he would continue to represent her. (See Doc. No. 39.) Ms. Clifford later indicated her intent to

3

proceed to pro se, (see Doc. No. 43), and the pro bono representation by Mr. Morse was terminated, (Doc. No. 45).

ANALYSIS

All but two of Ms. Clifford's claims must be dismissed, due to lack of standing, lack of subject-matter jurisdiction, or because Ms. Clifford fails to state a claim upon which relief may be granted and it would be futile to give her the chance to amend her complaint.

I.Ms. Clifford lacks standing to bring claims on behalf of her child.

As an initial matter, Ms. Clifford brings this suit on her own behalf and on behalf of minor child. This raises the issue of standing. Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III” of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The party invoking federal jurisdiction bears the burden of establishing [standing].” Id. at 561. “Apart from this minimum constitutional mandate, ” there are “other limits on the class of persons who may invoke the courts' decisional and remedial powers.” Warth v. Seldin, 422 U.S. 490, 499 (1975). For instance, even where a plaintiff has otherwise met the “case or controversy” requirement, she “generally must assert [her] own legal rights and interests, and cannot rest [her] claim to relief on the legal rights or interests of third parties.” Id.

Ms. Clifford is not an attorney and has not retained an attorney in this case. She had pro bono representation for a time, but this representation has terminated. Although Ms. Clifford may pursue her own claims pro se, she may not pursue claims on behalf of her child. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (“A litigant may bring his own claims to federal court without counsel, but not the claims of others.”); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (“We hold that under Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654,

4

a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.”); Gallacher v. Kisner, No. 2:08-cv-845, 2009 U.S. Dist. LEXIS 68000, at *25-26 (D. Utah June 25, 2009) (unpublished) (“Because Plaintiff is not an attorney, has not retained an attorney, and is proceeding pro se in this case, he cannot pursue claims on behalf of his son.”). Accordingly, Ms. Clifford may only assert claims on her own behalf. Any claim she brings on behalf of her minor child must be dismissed without prejudice for lack of standing.

The undersigned RECOMMENDS the district judge dismiss all claims brought on behalf of the minor child as a plaintiff in this case.

II. This court lacks subject-matter jurisdiction over Ms. Clifford's core claims.

Ms. Clifford's primary claims are that the defendants provided housing which failed to meet the safety requirements of Section 8 housing^[4] or the HUD general program requirements and that they falsely represented her housing did meet these standards. These claims must be dismissed without prejudice because this court lacks subject-matter jurisdiction.

As a threshold matter, federal courts are courts of limited jurisdiction, meaning they “may only hear cases when empowered to do so by the Constitution and by act of Congress.” Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015). Subject-matter jurisdiction “is a constitutional prerequisite to hearing a case.” Id. Because it cannot be waived, a court “always [has] an independent obligation” to determine whether subject-matter jurisdiction exists, regardless of the stage of the litigation. Id. Generally, it is the plaintiff's burden to demonstrate jurisdiction. Gallup Med Flight, LLC v. Builders Tr. of N.M., 240 F.Supp.3d 1161, 1194

5

(D.N.M. 2017). Federally, there is a presumption against jurisdiction. Penteco Corp. Ltd. P'ship-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991). A plaintiff must establish the complaint implicates a federal question by raising a claim “arising under the Constitution, laws, or treaties of the United States.” Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013). Or the plaintiff must show “complete diversity of citizenship exists between the parties and that the amount in controversy exceeds $75, 000.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1225 (10th Cir. 2004). When the court lacks subject-matter jurisdiction over a claim, it must be dismissed without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006).

A. Failure to Meet Housing Quality Standards and False Claims

Ms. Clifford contends she entered into a lease agreement with the Housing Authority and DewBury for a unit at 2770 South 2805 West, in West Valley City, Utah. (Am. Compl. 10, Doc. No. 20.) According to Ms. Clifford, this property failed to meet the required safety standards. (Id. at 10-11, 17.) The violations include the existence of black mold and hazardous levels of carbon monoxide, which Ms. Clifford alleges caused injuries to she and her son. (Id.) Ms. Clifford appears to base two separate claims on of this allegation. First, she claims the Housing Authority and DewBury improperly allowed her to enter a lease, knowing the unit failed to meet the certification requirements. (Id.) Second, she claims the Housing Authority and DewBury knowingly and falsely represented her housing rental met the required standards. (Id.)

The first part of this claim is that the defendants provided housing which failed to meet the safety requirements of Section 8 housing^[5] or the HUD general program requirements. (Am. Compl. 10, Doc. No. 20.)

6

...