Ely v. Mobile Hous. Bd.

Decision Date07 April 2014
Docket NumberCivil Action No. 13–0105–WS–B.
Citation13 F.Supp.3d 1216
PartiesDonavette ELY, Plaintiff, v. MOBILE HOUSING BOARD, Defendant.
CourtU.S. District Court — Southern District of Alabama

Kenneth James Lay, Birmingham, AL, for Plaintiff.

Raymond Lloyd Bell, Jr., Bell Law Firm, P.C., Jonathan Brian Mabire, Mobile, AL, for Defendant.

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on defendant's Motion for Summary Judgment (doc. 63). The Motion has been briefed and is now ripe for disposition.1

I. Nature of the Case.

Plaintiff, Donavette Ely, brought this action against defendant, Mobile Housing Board, alleging constitutional deprivations, regulatory violations, and disability discrimination in connection with her participation and, more precisely, the termination of her participation in the Section 8 Housing Choice Voucher Program. The Complaint (doc. 1) alleges that the Board is liable on the following legal theories: (i) violation of 42 U.S.C. § 1437d(k)(1) and (3) by not providing a pre-termination explanation of the grounds for termination or an opportunity to examine documents and records; (ii) violation of HUD regulations by not informing Ely of her right to a hearing and not providing an impartial hearing officer; (iii) a claim under 42 U.S.C. § 1983 for violation of the Fifth and Fourteenth Amendments by terminating Ely's housing benefits without due process, adequate notice or an opportunity to be heard; (iv) violation of the Fair Housing Amendment Act, 42 U.S.C. §§ 3604(f)(1)(A) and 3604(f)(3)(B), by discriminating against and refusing to make reasonable accommodation for Ely's disabled minor child; and (v) violation of Title II of the Americans with Disabilities Act by discriminating against and refusing to make reasonable accommodation for Ely's disabled minor child.

II. Background Facts.
A. Mechanics of the Section 8 Program.

At all times relevant to this action, the Mobile Housing Board (the Board) operated a Section 8 Housing Choice Voucher Program (the Section 8 Program”). This Section 8 Program “allows the family to go out to rent from a private landlord. [The Board] pay[s] a portion and the family pays a portion based on their income.” (Griffin Dep. (doc. 64–2), at 15–16.) Eligible participants report their income on an annual basis, after which the Board confirms that data and computes the maximum rental amount via a mathematical formula. (Id. at 16–17, 43.) This annual calculation process is referred to as a “recertification.” (Id. ) The size of the voucher (i.e., number of bedrooms) is determined by reference to a preexisting administrative plan that takes into account the income and specific demographic characteristics (age, gender, etc.) of the family composition of the household. (Id. at 16–17, 43.) The Board then issues a voucher to the participant for the designated number of bedrooms and the designated “shopping amount.” (Id. at 19–20, 43.) This shopping amount represents the maximum monthly rental amount that a landlord can receive for the unit, regardless of whether the Board or the participant pays it. (Id. at 43–45.) Again, the Board determines the shopping amount pursuant to a predetermined payment standard that considers the number of bedrooms and the participant's income. (Id. at 19–20, 40.)

As Ely understood from her extensive experience in the Section 8 Program, the participant bears sole responsibility for shopping the voucher and reaching agreement with a landlord to accept the voucher. (Ely Dep. (doc. 64–1), at 124–26.) The Board maintained what it called a “courtesy vacancy list” of landlords who had expressed willingness to rent under the Section 8 Program, and shared that list with participants. (Griffin Dep., at 47.) The Board also directed participants to housing information sources such as the Apartment Guide, the Mobile Register, and so on. (Id. at 48.) Initial vouchers issued by the Board were valid for 60 days. (Id. at 65.) As a Board official put it, We're holding a pot of money for the family to shop for a unit for 60 days.” (Id. at 37.) If a participant fails to reach agreement with a landlord for a suitable unit within that 60–day period, the Board in its discretion may extend the voucher for additional 30–day increments (up to a maximum voucher duration of 120 days) for the participant to continue shopping. (Id. at 65–66.)

Once the participant identifies a suitable unit and reaches agreement with the landlord, the Board contacts the landlord to schedule an inspection. (Id. at 20.) After the unit passes inspection, the Board makes a determination of rent reasonableness (essentially comparing the proposed rental rate to the unit's value), allows for rental negotiations with the landlord, and determines the relative rental portions of the Board and the participant. (Id. at 21–22.) Finally, the landlord executes a housing assistance payment contract (sometimes called the “HAP Contract”). (Id. at 22.)

B. Plaintiff's History with the Program and the 2009 Voucher Request.

Ely, a single mother of five children between the ages of 1 and 18, had participated in the Section 8 Program since in or about 1996. (Ely Dep. (doc. 74), at 19–20.) At all times relevant to this matter, Ely had only four children (her youngest was born in April 2012, after the events underlying this lawsuit took place). Over the years, Ely had utilized Section 8 Program vouchers to rent housing at no fewer than five addresses. (Id. at 22–26.) She knew how the Program worked, and what her obligations were as a participant. As of 2009, she was receiving a voucher from the Board for a three-bedroom unit. (Id. at 37.) At that time, Ely requested a voucher for a four-bedroom unit for medical reasons as an accommodation to her asthmatic eldest son, Devin Ely (“Devin”). (Id. ) As plaintiff explained the situation, “Devin wanted to be cold at all times,” while neither Ely nor the younger children desired such chilly temperatures inside their home. (Id. at 40.) Ely's perception was that Devin “couldn't breathe if the heat was on” in the wintertime. (Id. ) Based on this concern, Ely wanted a larger house so that “Devin would have his own room, and his own temperature setting.” (Id. at 44.)

The Board's response when Ely raised this concern was that she needed to obtain a letter from a doctor. (Id. at 40.) Ely then submitted a letter from Dr. Mark Donahue of the Mobile County Health Department dated March 27, 2009. (Stokes Aff. (doc. 64, Exh. C), ¶ 4.) That letter stated in general terms that, “Due to multiple problems related to asthma

, sleep apnea and weight, Devin would benefit from having separate thermostat controls in his bedroom.” (Doc. 75, Exh. 4.) The Board notified Ely that the letter needed to be on the physician's letterhead. (Stokes Aff., ¶ 5.) So Ely submitted a second letter from Dr. Donahue, dated May 22, 2009 and printed on Health Department letterhead. (Doc. 75, Exh. 3.) In that letter, Dr. Donahue explained that Devin “has problems with chronic asthma,” that [a]sthma attacks can have many triggers, some being changes in temperature and stress,” and that [h]aving a separate room with separate temperature maintenance, may lead to lessening temperature related stress and thus decrease the likelihood of asthma flare-ups.” (Id. ) Notwithstanding those letters, Board caseworker Kimberly Stokes determined that Ely's family qualified for only a three-bedroom voucher, based on the following considerations: (i) the Section 8 Occupancy Chart allows for as many as six people to live in a three-bedroom unit; (ii) separate thermostats are not possible in Section 8 homes; and (iii) Devin's asthma could be accommodated by placing him in a separate bedroom with a window air-conditioner, and the other four family members could share the remaining two bedrooms. (Stokes Aff., ¶ 8.) On that basis, the Board issued a three-bedroom voucher to Ely on July 14, 2009. (Id. )

Ely requested a meeting to discuss the decision to issue her a three-bedroom voucher. (Doc. 75, Exh. 6.) Via letter dated July 28, 2009, the Board scheduled a meeting for August 13, 2009. (Id. ) At that meeting (which Ely attended), Stokes' supervisor upheld the decision to issue a three-bedroom voucher. (Stokes Aff., ¶ 9.) Following the meeting, Ely submitted a handwritten request for “hearing,” citing grounds of “unprofessionalism” and asserting that “my son's medical reasons were not considered.” (Doc. 75, Exh. 5.) The Board originally scheduled the hearing for September 9, 2009, but later reset it for September 28, 2009 to accommodate Ely's request for additional time to obtain counsel. (Doc. 64, Exhs. G & H.) A letter dated September 17, 2009 notified Ely that the hearing had been reset for September 28, 2009 at 2:30 p.m. at a specific location. (Doc. 64, Exh. H.) The September 17 letter further specified that, “If you fail to appear within 15 minutes of the scheduled time, the hearing will not be held or rescheduled.” (Id. ) Ely failed to appear at the designated hearing location at the appointed date and time. (Stokes Aff., ¶ 11.) In her deposition, Ely acknowledged her failure to attend what she called “a follow-up meeting” with Board officials. (Ely Dep., at 58.) Ely further conceded that she received the meetings and hearings she requested. (Id. at 65.)

C. Plaintiff's Four–Bedroom Voucher in 2010.

As of early 2010, Ely resolved that she did not want a three-bedroom voucher and did not want to live in the three-bedroom home on Martin Drive that she was then renting. She wanted a larger place. (Ely Dep., at 62–63.) On March 26, 2010, Ely submitted to the Board a “Move Letter” indicating that she intended to leave her current Section 8 housing before her lease expired. (Doc. 75, Exh. 2.) Based on this announcement, and to facilitate her efforts to shop for housing, the Board prepared a new three-bedroom voucher for Ely on March 29, 2010, and expiring on May 28, 2010. (Doc. 64, Exh. I.) Ely persisted in requesting a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT