Stevenson v. Willis, No. 3:07CV3743.

Decision Date18 September 2008
Docket NumberNo. 3:07CV3743.
Citation579 F.Supp.2d 913
PartiesAmy M. STEVENSON, Plaintiff, v. Linnie WILLIS, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Amy M. Stevenson, Toledo, OH, pro se.

Mary Ellen Natale, Legal Aid of Western Ohio, Ryan C. Wilson, Advocates For Basic Legal Equality, Toledo, OH, for Plaintiff.

Robert G. Stiefvater, III, Thomas S. Amato, Timothy R. Cleary, Cleary & Associates, Cleveland, OH, for Defendants.


JAMES G. CARR, Chief Judge.

This is a suit against the executive director and hearing officer of the Lucas Metropolitan Housing Authority [LMHA or the Housing Authority]. Plaintiff formerly received benefits under the Housing Choice Voucher Program under § 8 of the Federal Housing Act of 1937, 42 U.S.C. § 1437f. Plaintiff claims that the defendants have illegally deprived of her right to continued rental subsidies, and terminated her benefits without a fair hearing and due process. She seeks declaratory, injunctive and monetary relief.

Pending is defendants' motion to dismiss. [Doc. 22]. Defendants move to dismiss on several grounds: 1) plaintiff dismissed the LMHA and, having dismissed the agency, plaintiff cannot go against the individual defendants, even in their official capacities; 2) plaintiff has failed to state a claim for a Fourteenth Amendment due process violation; 3) plaintiff has failed to state a claim under 42 U.S.C. § 1983; and 4) the court lacks jurisdiction to hear the suit.

Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1367 and 42 U.S.C. § 1983 as the acts complained of are prohibited under the Fourteenth Amendment and the Housing Act.1 For the reasons discussed below, defendants' motion shall be granted with regard to the defendant Bush and otherwise denied.


Plaintiff, a single mother, and her four daughters began participating in the § 8 Housing Choice Voucher Program, operated by the Housing Authority, in 2000. In 2002, she rented a home under a lease approved by the Housing Authority, which paid plaintiff's full monthly rent. According to Stevenson, the landlord began making unreasonable and unlawful demands. As a result, she decided to move. To do so, the Housing Authority required written approval from the landlord stating that she owed no rent and did not owe for physical damages to the property.

The landlord claimed plaintiff was responsible for a variety of damages and refused to give her written approval unless plaintiff agreed to be responsible for the repairs. Although she denied that she had caused any damage, in February, 2006, plaintiff signed an agreement to pay for the repairs.

In May, 2006, the landlord served plaintiff with a notice to vacate. In June, Stevenson and her children moved out of the apartment to live with her mother. In July, plaintiff received notice that LMHA was going to terminate her from the voucher program. The notice cited two grounds for termination: 1) "moving in lieu of eviction" and 2) "damages to the unit."

The agency held an informal hearing on August 31, 2006. Defendant Vivian Bush, hearing officer for the Housing Authority, presided at the hearing. Attorneys from Legal Aid of Western Ohio represented the plaintiff.

The Housing Authority presented no witnesses. Bush presented two documents: 1) an internal record summarizing a telephone conversation between plaintiff's landlord and a LMHA case manager, in which the landlord stated Stevenson owed $3,500 in damages; and 2) the repair agreement between the landlord and Stevenson. The landlord was not present at the hearing. No proof of the alleged damages was presented.

Plaintiff and her mother testified at the hearing.

The agency, through Bush, issued its decision in December, 2006. The Housing Authority ruled that Stevenson "must enter into a repayment agreement with [her] former landlord for the damages" and that she must provide a copy of the agreement to the LMHA by January, 30, 2007. According to the complaint, the decision did not contain a statement of the evidence to show what facts Bush relied on in reaching a decision. It did not state the amount of damages owed. It did not state that plaintiff was automatically terminated.

Stevenson did not set up a repayment plan. The Housing Authority did not resume the payments. Plaintiff asked LMHA to reconsider is decision. On reconsideration, the agency confirmed that Stevenson had to set up a repayment agreement in order to retain her voucher. At this point, the January 30, 2007, deadline had passed and the Housing Authority refused to allow Stevenson back into the § 8 voucher program.

On December 7, 2007, plaintiff initially sued the LMHA, as well as its Executive Director, Linnie Willis, and Bush, who are sued in their official capacities. She later filed a second amended complaint [Doc. 19], simply naming both Willis and Bush in their official capacities as LMHA officials. After filing the final amended complaint, Stevenson filed a Notice of Dismissal, under Fed.R.Civ.P. 41(a), dismissing the LMHA without prejudice. [Doc. 20].

Plaintiff alleges that Bush both presented the agency's case and evidence and adjudicated the issues, and that she relied on a phone conversation with the landlord when the landlord was not present to corroborate the conversation or be cross-examined. She claims that the process by which she was terminated did not comport with due process under the Fourteenth Amendment. She also asserts claims under regulations applicable to the Federal Housing Act and tenants of public housing agencies.

Defendants argue that plaintiff has failed to state claims either for a Fourteenth Amendment due process violation or under the regulations on which she bases the remainder of her claims.

Motion to Dismiss

To survive a motion to dismiss under Civil Rule 12(b)(6), a plaintiff is required to allege in the complaint "only enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, U.S., 550 U.S. 544, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Accord Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 520 (6th Cir.2008); United States, ex rel. Bledsoe v. Cmty. Health Systems, Inc., 501 F.3d 493, 502 (6th Cir. 2007).

In making this determination, I must "construe the complaint in a light most favorable to plaintiffs" and "accept all well-pled factual allegations as true." Bishop, supra, 520 F.3d at 519. Accord Lambert v. Hartman, 517 F.3d 433 (6th Cir.2008). I also must "draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007). It is not my function, at this stage, to weigh evidence or evaluate credibility. Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). Furthermore, "[d]ismissals of complaints filed under civil rights statutes are scrutinized with special care." Kent v. Johnson, 821 F.2d 1220, 1223 (6th Cir. 1987).

1. Voluntary Dismissal of the LMHA

Only Willis and Bush, in their official capacities, remain named defendants. Defendants allege that, because Stevenson dismissed the LMHA after filing the second amended complaint, her claims against Willis and Bush must also be dismissed. The proper remedy, they suggest, would be plaintiff's refiling the suit to again name Willis and Bush as the defendants.

The cases cited as authority for defendants' position discuss the propriety of dismissal of claims against governmental entities and official capacity defendants based on substantive defenses. The issue in those cases was whether Ohio's immunity statute, O.R.C. § 2744.02, which provides immunity to a political subdivision for actions involving employees in the course of their governmental functions, applied equally to the state and the employees sued in their official capacity. These cases, however, do not provide guidance in the case at hand.

In her second amended complaint, plaintiff's claims against the governmental entity are recast in her claims against the Housing Authority employees in their official capacities. The fact that Stevenson voluntarily dismissed the LMHA after she filed her second amended complaint should not change the ultimate inquiry: whether the official-capacity defendants are potentially liability to the plaintiff on the claims alleged. Plaintiff, regardless of the subsequent filing of the notice of dismissal, has, as discussed below, and regardless of her dismissal of the agency, a cognizable claim that I will allow to go forward at this time.

Requiring refiling in this case would merely amount to a needless waste of judicial resources and added expense to the parties. Further, neither party raises the issue of the statute of limitations. I assume it is not a procedural obstacle for plaintiffs;2 however, if plaintiff was barred by the relevant limitations, this too serves as reason to decline outright dismissal of the official capacity claims against the defendants. I find that plaintiff's voluntary dismissal of LMHA does not serve to dismiss all claims contained within the second amended complaint.

2. Official Capacity Claims

Plaintiff named Willis and Bush in their official capacities as defendants. Where a plaintiff seeks equitable relief, rather than damages, against an individual governmental defendant, the plaintiff can sue the individual in her official capacity. See, e.g., MSA Realty Corp. v. State of Ill., 990 F.2d 288, 291 (7th Cir.1993) (providing that "state officials may be sued in their official capacities for injunctive relief, although they may not be sued for money damages") (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) and Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)); Ameritech Corp. v. McCann, 297 F.3d 582, 586 (7th Cir.2002). Accordingly, Willis, as the agency's Executive Director, remains a proper plaintiff.

However, the same is not so with...

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