United States District Court, D. New Jersey
the Court is Paterson Housing Authority's
(“Defendant”) motion to dismiss pro se
Plaintiff Chena Johnson's (“Plaintiff”)
Complaint (D.E. No. 1 (“Compl.”)) under Federal
Rule of Civil Procedure 12(b)(6). (D.E. No. 9). The Court has
considered the parties' submissions and decides this
matter without oral argument. See Fed. R. Civ. P.
78(b). The Court DENIES Defendant's motion.
an individual with a learning disability, receives federal
housing assistance through the United States Department of
Housing and Urban Development's (“USHUD”)
Section 8 program. (Compl. at 1,  ¶¶ 1 & 28).
Defendant administers the program through which Plaintiff
receives her Section 8 grant. (Id. at 1).
before this lawsuit, Defendant directed Plaintiff to relocate
from a three- bedroom home to a two-bedroom home because her
son was incarcerated and no longer living with her.
(Id. ¶¶ 2 & 3). Plaintiff followed
Defendant's direction and moved to the specified
two-bedroom home. (Id. ¶ 4). Nevertheless,
Defendant subsequently claimed that Plaintiff's new
residence was actually a three-bedroom home. (Id.
¶ 5). Defendant adversely changed Plaintiff's rental
contribution based on this claim, even after Defendant's
inspector concluded that the home was only a two-bedroom.
(See Id. ¶¶ 5 & 6).
January 2017, Plaintiff received a letter referencing a 2015
hearing and demanding that she pay delinquent rent by January
31, 2017. (Id. ¶¶ 9 & 10). Plaintiff
attempted to pay the delinquent rent, but Defendant refused
to accept her payment. (Id. ¶ 9).
Defendant's agent told her that “he was going to
use the hearing officer's decision to terminate”
her tenancy. (Id.). In May 2017, Plaintiff received
a letter stating that she had seven days to request a hearing
on this matter. (Id. ¶ 11). Despite Plaintiff
requesting a hearing in accordance with Defendant's
instructions, Defendant refused to grant her a hearing,
telling Plaintiff that she was not eligible. (Id.
¶¶ 11 & 17). Defendant then instituted eviction
proceedings. (See id.); see also Paterson Hous.
Auth. v. Johnson, No. 17-4289, D.E. No. 3 (D.N.J. July
24, 2017) (remanding Plaintiff's eviction proceeding to
New Jersey state court).
Court construes Plaintiff's Complaint as asserting a 42
U.S.C. § 1983 claim for a violation of her Fourteenth
Amendment procedural due process rights when Defendant denied
her a hearing despite her timely answer to the May 2017
letter. (See Compl. ¶¶ 11 & 16-20).
Standard. “To survive a motion to
dismiss, 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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. In a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, the burden is on the
defendant to show that the plaintiff has not stated a
facially plausible claim. See Davis v. Wells Fargo,
824 F.3d 333, 349 (3d Cir. 2016). Moreover, “[a]ll
allegations in the complaint must be accepted as true, and
the plaintiff must be given the benefit of every favorable
inference to be drawn therefrom.” Malleus, 641
F.3d at 563. But a court does not accept as true the
complaint's legal conclusions. See Iqbal, 556
U.S. at 678 (“[T]he tenet that a court must accept as
true all the allegations contained in a complaint is
inapplicable to legal conclusions.”).
court must consider only the complaint, exhibits attached to
the complaint, matters of public record, as well as
undisputedly authentic documents if the complainant's
claims are based upon these documents.” Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010); see
also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260
(3d Cir. 2006) (“In evaluating a motion to dismiss, we
may consider documents that are attached to or submitted with
the complaint, and any matters incorporated by reference or
integral to the claim, items subject to judicial notice,
matters of public record, orders, and items appearing in the
record of the case.” (citations and internal quotation
marks omitted)). “The purpose of this rule is to avoid
the situation where a plaintiff with a legally deficient
claim that is based on a particular document can avoid
dismissal of that claim by failing to attach the relied upon
document.” Jeffrey Rapaport M.D., P.A. v. Robins S.
Weingast & Assocs. Inc., 859 F.Supp.2d 706, 714
“[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citations and internal
quotation marks omitted).
Defendant bases its 12(b)(6) motion on two grounds: (1)
Plaintiff has not shown that she was denied any opportunity
to be heard, and consequently Plaintiff has not shown that
her constitutional procedural due process rights were
violated; and (2) Plaintiff's Complaint is time barred.
(See generally Def. Mov. Br.; Def. Reply Br.). In
its first ground, Defendant argues that Plaintiff was
afforded a hearing in 2015 where she was represented by an
attorney. (Def. Moving Br. at 1-2 & 4). Defendant also
argues that Plaintiff was heard in New Jersey landlord tenant
court and in federal court. (Id.). Regarding its
second ground, Defendant argues that even if Plaintiff had
been denied due process, her action is time barred because
she did not institute her lawsuit by an action in lieu of
prerogative writ under New Jersey Court Rule 4:69 within 45
days of the 2015 hearing. (Id. at 4-9). As explained
below, Defendant falls woefully short of meeting its burden
for either ground. See Davis, 824 F.3d at 349
(“When presenting a Rule 12(b)(6) motion, the defendant
bears the burden to show that the plaintiff has not stated a
the Court finds that Plaintiff has adequately pleaded that
her Fourteenth Amendment procedural due process rights were
violated. Plaintiff alleges that she has a Fourteenth
Amendment property interest in her USHUD Section 8 grant,
which entitles her to certain due process protection.
(See Compl. at 1 & ¶ 19). A person's
continued participation in the USHUD Section 8 program is a
Fourteenth Amendment property interest protected by
procedural due process. See Basco v. Machin, 514
F.3d 1177, 1180 (11th Cir. 2008); Clark v.
Alexander, 85 F.3d 146, 150 (4th Cir. 1996); Davis
v. Mansfield Metro. Hous. Auth., 751 F.2d 180, 184-85
(6th Cir. 1984); Simmons v. Drew, 716 F.2d 1160,
1162 (7th Cir. 1983); see also Atkins v. Parker, 472
U.S. 115, 128 (1985) (holding that food-stamp benefits, as
statutory entitlements for persons qualified to receive them,
are property protected by the Due Process Clause),
superseded by statute, 42 U.S.C. § 601 (1996);
Goldberg v. Kelly, 397 U.S. 254, 261-64 (1970)
(holding that procedural due process requires persons who
receive welfare benefits to be afforded an evidentiary
hearing before benefits are discontinued), superseded by
statute, 42 U.S.C. § 601 (1996).
alleges that she was entitled to a hearing before her Section
8 benefits were discontinued. (See Compl.
¶¶ 11 & 16-20). The case law, applicable
federal statutes, and applicable federal regulations all
indicate that Plaintiff is correct. See, e.g., 42
U.S.C. § 1437d(k) (ordering that the Secretary of USHUD
“by regulation require each public housing agency . . .
to establish and implement an administrative grievance
procedure under which tenants will . . . have an opportunity
for a hearing before an impartial party upon timely
request” before eviction and termination);
Clark, 85 F.3d at 150 (explaining five procedural
due process requirements housing authorities must follow,
which include a pre-termination hearing); Davis, 751
F.2d at 184-85 (holding that due process requires a
pre-termination hearing for Section 8 recipients and that the
USHUD's existing regulations on informal hearings
satisfied those requirements); 24 C.F.R. §§
982.555(a), 982.552(c)(1)(v) (requiring a public housing
authority to afford a Section 8 recipient an opportunity for
an informal hearing before it terminates assistance because
the Section 8 recipient owes rent or other amounts in
connection with the assistance). Indeed, Defendant's own
correspondence to Plaintiff seems to acknowledge
Plaintiff's right to a pre-termination hearing. See
Johnson, No. 17-4289, D.E. No. 1 at 9 (“Be further
advised that you have the right to request a grievance
hearing, in writing, regarding this matter to have your
questions / concerns heard before an impartial hearing
Plaintiff alleges that in May 2017 Defendant offered her such
pre-termination hearing, that she complied with instructions
to secure a hearing, and that despite her compliance, she was
denied a hearing and was served with eviction papers.
(See Compl. ¶¶ 11 & 16-20). For the
purposes of this motion, the Court must accept
Plaintiff's allegations as true. See Iqbal, 556
U.S. at 618; Malleus, 641 F.3d at 563. But the Court
also notes that the record in Johnson, No. 17-4289,
supports Plaintiff's allegations. Defendant appears to
have sent Plaintiff a letter on May 8, 2017, regarding the
termination of her tenancy because of unpaid rent and other
unpaid charges. Johnson, No. 17-4289, D.E. No. 1 at
9. The letter advised Plaintiff of her “right to
request a grievance hearing, in writing . . . within seven
(7) calendar days from the date of [the letter].”
Id. On May 11, 2017, Plaintiff appears to have
submitted a written request for a ...