Luvert v. Chi. Hous. Auth.

• Decision Date: 06 November 2015
• Docket Number: Case No. 15 C 6523
• Citation: 142 F.Supp.3d 701
• Parties: Dashay Luvert, Plaintiff, v. Chicago Housing Authority, Defendant.
• Court: U.S. District Court — Northern District of Illinois

142 F.Supp.3d 701

Dashay Luvert, Plaintiff,

v.Chicago Housing Authority, Defendant.

Case No. 15 C 6523

United States District Court, N.D. Illinois, Eastern Division.

Signed November 6, 2015

Michelle J. Gilbert, Julie M. Harcum, and Sarah S. Song, Legal Assistance Foundation, Chicago, IL, for Plaintiff.

Kevin J. Todd, Bruce J. Van Heukelem, Derrick M. Thompson, John C. Lillig, and Richard D. Boonstra, Hoogendoorn & Talbot LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Milton I. Shadur

, Senior United States District Judge

Dashay Luvert ("Luvert") sued the Chicago Housing Authority ("CHA") in the Circuit Court of Cook County based on CHA's refusal to have extended the term of her housing voucher.¹ Having removed the case to this federal District Court, CHA now brings a Fed. R. Civ. P. ("Rule") 12(b)(6)

motion to dismiss the Complaint for failure to state a claim upon which relief may be granted. For the reasons that follow, that motion is granted as to all counts save Counts IV and V, which are remanded to the state Circuit Court.

Motion To Dismiss Standards

Under Rule 12(b)(6)

a party may move for dismissal for the "failure to state a claim upon which relief can be granted." Familiar Rule 12(b)(6) principles require the district court to accept as true all of Luvert's well-pleaded factual allegations and view them in the light most favorable to her as the non-moving party (Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir.2013) ). But "legal conclusions or conclusory allegations that merely recite a claim's elements" are not entitled to any presumption of truth (Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012) ).

In the past decade the Supreme Court made an important change in the evaluation of Rule 12(b)(6)

motions via what this Court regularly refers to as the "Twombly –Iqbal canon," a usage drawn from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), as more finely tuned in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). That canon has introduced the concept of "plausibility" into the analysis, and in that respect our Court of Appeals has "interpreted Twombly and Iqbal to require the plaintiff to provid[e] some specific facts to support the legal claims asserted in the complaint" (McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.2011) (internal quotation marks omitted)). As McCauley went on to reconfirm, claimants "must give enough details about the subject-matter of the case to present a story that holds together" (id. ).

Because the focus of Rule 12(b)(6)

motions is on the pleadings, they "can be based only on the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice" (Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012) ). But a nonmovant has more flexibility, for he "may elaborate on his factual allegations so long as the new elaborations are consistent with the pleadings" (id. ).

In granting a dismissal courts should usually give a claimant at least one opportunity to amend (Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510, 519 (7th Cir.2015)

). And consistently with the principles of Rule 15(a)(2) courts generally grant leave to amend freely. But where "it is certain ... that any amendment would be futile or otherwise unwarranted," the court can deny leave to amend (id. at 519–20

, emphasis in original). And as the ensuing lengthy in depth analysis will reveal, the flaws in Luvert's attempt to state any federal claim for relief cannot be cured.

Supplemental state law claims may be dismissed without prejudice when all federal claims are dispatched before trial (Pugel v. Bd. of Trs. of the Univ. of Ill., 378 F.3d 659, 669 (7th Cir.2004)

). Indeed, "when the district court dismisses all federal claims before trial, the usual and preferred course is to remand the state claims to the state court unless there are countervailing considerations" (Williams v. Seniff, 342 F.3d 774, 794 (7th Cir.2003) (citation omitted)). Such countervailing considerations include three limited exceptions identified in Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 906–07 (7th Cir.2007) : (1) "where the statute of limitations would bar the refiling of the supplemental claims in state court," (2) "where substantial federal judicial resources have already been expended on the resolution of the supplemental claims" and (3) "where it is obvious how the claims should be decided."

Background

At the core of Luvert's five-count Complaint is her inability to participate in the Housing Choice Voucher Program ("Voucher Program"), a low-income housing assistance program administered by CHA on behalf of the Department of Housing and Urban Development ("HUD") pursuant to 42 U.S.C. § 1437f

, a part of the United States Housing Act of 1937 as amended ("the Act")—for a description of the Voucher Program, see 24 C.F.R. § 982.2 and the Chicago Housing Authority Administrative Plan for the Housing Choice Voucher Program (Nov. 20, 2012) at 1–1.² After selecting a family to participate in the Voucher Program (the term "family" also encompasses single individuals in HUD's definition—see 24 C.F.R. § 5.403 ), a Public Housing Authority ("PHA") such as CHA issues a voucher with which the family can shop for housing (Reg.302(a)). Once the family negotiates a lease with a prospective landlord, the PHA inspects the unit and, if the unit meets certain criteria, enters into a Housing Assistance Payment ("HAP") contract with the landlord to pay whatever portion of the rent it will subsidize (Regs.302(b) and 305).

Of particular relevance to this case, a family has a limited time to submit a unit for approval (Reg.302(c)). That term may be extended (Reg.303(b)), although as will become apparent the parties dispute sharply what HUD regulations say about that extension. In addition, once a family submits a request for approval the voucher's term may be tolled, as it were—what the regulations call a "suspension"—while the PHA inspects the unit (Reg.303(c)).³

According to the allegations in the Complaint, which this Court must accept as true for purposes of deciding the motion, Luvert was deemed eligible and approved for participation in the Voucher Program after some nine years on CHA's waiting list, receiving her voucher on July 18, 2014 (Complaint ¶¶ 1, 47–48). She visited more than ten apartments over the next three months before settling on one in October 2014 (Complaint ¶¶ 49–50). That apartment failed CHA's inspection, however, and Luvert did not submit another unit for approval until the end of December 2014 (Complaint ¶¶ 50–51). Although the precise timing of subsequent events is not immediately clear from the Complaint, the second unit's owner backed out before a lease was signed, after which Luvert "immediately" communicated with CHA to request an extension of her voucher term (Complaint ¶¶ 52–53). Luvert does not state whether she made that request before or after her voucher expired on January 5, 2015 (see Complaint ¶ 48) or whether CHA had suspended her voucher's term during the two unfruitful approval processes. In any event, in May 2015 she received notice that her voucher had expired (Complaint ¶ 53). That notice did not inform her that she had a right to an informal hearing or an informal review (a right that CHA contends she did not have), nor has she received any such hearing or review (Complaint ¶ 54).

Dismissal of Federal Claims

Animating each of Luvert's five counts is the protest that she has lost her opportunity for a federal housing subsidy through no fault of her own. By all accounts she was patient in waiting for that opportunity and diligent in pursuing it. It is difficult for low-income individuals to find housing, and Luvert is certainly not to blame if one landlord who was willing to rent to her did not offer her a unit that could satisfy CHA and another backed out at the last minute. That she lost her scarce opportunity (and her spot on the waiting list) in that way seems unfair, and she dismisses as "absurd" CHA's Mem. 12 argument that, fair or not, its refusal to extend the term of her voucher or to permit her to challenge that refusal was lawful. And she assails CHA's account of what she was entitled to as "creat[ing] a nonsensical framework whereby an applicant who is subject to lifetime registration on a state sex offender registry and therefore denied assistance" is afforded a wider array of procedural options than one "who simply could not find a landlord willing to rent to her within the time limit" (L.Mem.17).

For all its humanly compelling elements, however, the problem with Luvert's lawsuit is that housing assistance is not distributed on the basis of individual worth and so can be withheld on bases unrelated to individual culpability. As Eidson v. Pierce, 745 F.2d 453, 457 (7th Cir.1984)

said more than 30 years ago:

At the heart of this case is the fact that there are not enough Section 8 housing units to accommodate all who are eligible and willing to take them. This case thus involves the processes used to allocate these limited and valuable benefits among a large number of eligible applicants. At issue are the rights not only of those plaintiffs who were denied Section 8 benefits but also of those who received those benefits in the plaintiffs' stead.

Administering such a system is bound to necessitate some harsh choices, a need that in turn gives to some unfeeling policies.

No doubt CHA's use-it-or-lose-it approach to the Voucher Program is one such policy. It operates on the implicit premise that the next family called from the waiting list will be more successful in locating an acceptable unit, with a corollary presumption that the disappointed family could have been more...