Allen v. Housing Authority of the City of Auburn, Alabama et al
MEMORANDUM OPINION AND ORDER directing that Defendants' Motion to Dismiss the Amended Complaint (Doc. # 17 ) is GRANTED and that this action is DISMISSED with prejudice, as further set out. Signed by Chief Judge William Keith Watkins on February 27, 2015. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
HOUSING AUTHORITY OF THE
CITY OF AUBURN, ALABAMA;
LEE EASTMAN, in his official
Capacity as Executive Director
of the Housing Authority; STAR
PASCHAL, in her official capacity as
Director of the Section 8 program for
the Housing Authority of the City
of Auburn, Alabama,
) CASE NO. 3:14-CV-706-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Defendants’ Motion to Dismiss the Amended Complaint
(Doc. # 17) pursuant to Federal Rule of Civil Procedure 12(b)(6) on grounds that the
two-year statute of limitations bars Plaintiff’s claims under the Fair Housing Act,
Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing
Amendments Act of 1988, 42 U.S.C. §§ 3601–31 (“FHA”). Plaintiff filed a
response in opposition to the motion (Doc. # 20) to which Defendants submitted a
reply (Doc. # 21). A round of supplemental briefing followed. (Docs. # 22, 27.)
After careful consideration, the court finds that the motion to dismiss is due to be
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal
jurisdiction and venue are not contested.
II. STANDARD OF REVIEW
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and
construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc.,
693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “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)).
plausibility” exists “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. (citing Twombly, 550 U.S. at 556).
Under Rule 12(b)(6), “it is generally true that the ‘scope of the review must be
limited to the four corners of the complaint.’” Speaker v. U.S. Dep’t of Health &
Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th
Cir. 2010) (quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir.
However, a court also can consider “an extrinsic document if it is
(1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” Id.;
see also Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999) (“[A]
document central to the complaint that the defense appends to its motion to dismiss
is also properly considered, provided that its contents are not in dispute.”).
Finally, “a Rule 12(b)(6) dismissal on statute of limitations grounds is
appropriate only if it is apparent from the face of the complaint that the claim is
time-barred.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.
2004) (citation and internal quotation marks omitted).
When the time bar is
apparent from the face of the complaint, “the burden of alleging facts which would
give rise to the tolling [of] the limitations period falls upon the plaintiff.” Parrish v.
City of Opp, Ala., 898 F. Supp. 839, 841 (M.D. Ala. 1995).
For a number of years, Plaintiff Charisse Allen received rent subsidies under
Section 8, a housing-subsidy program that provides financial aid for “low-income
families.” 42 U.S.C. § 1437f(a). This action arises from Plaintiff’s participation
in that program, the discrimination she allegedly endured in connection with her
request to transfer from one housing authority to another, and the termination of her
Section 8 benefits.
The Section 8 Housing-Subsidy Program
The Department of Housing and Urban Development (“HUD”) funds the
Section 8 program, but the administration of the program falls on local housing
authorities, which “enter into annual contributing contracts with [HUD].” (Am.
Compl. ¶ 9); see also 24 C.F.R. § 982.51. Under these contracts, “subsidies
compensate landlords for the difference between the rent [that] tenants can afford
and market rental rate.” (Am. Compl. ¶ 9); see also 24 C.F.R. § 982.451. Within
specified guidelines, a Section 8 participant can request a transfer (called a “port”)
from one housing authority to another. (Am. Compl. ¶ 10); see also 24 C.F.R.
§ 982.353 (discussing portability).
Ms. Allen’s Port Request and HUD Complaint
In June 2010, while a tenant at the Tuskegee Housing Authority (“THA”) in
Tuskegee, Alabama, Ms. Allen “began the process of requesting a port” from the
THA to the Auburn Housing Authority (“AHA”) in Auburn, Alabama. (Am.
Compl. ¶ 10.)
In connection with her port request, Ms. Allen asked for a
two-bedroom unit to accommodate her physical and mental disabilities. 1
November 2010, the AHA had not approved her port request, but on November 5,
Ms. Allen alleges that, during this time frame, she “was involved in cardiac
rehabilitation” and had diagnoses of “generalized anxiety disorder,” “obsessive compulsive
disorder with severe agoraphobia,” “microphobia,” “mysophobia,” and “anxiety related phobias.”
(Am. Compl. ¶ 1.)
2010, Defendant Lee Eastman, AHA’s executive director, acknowledged that he had
received her request for a two-bedroom unit. 2 (Am. Compl. ¶ 14.) Her port
request still was pending in December 2010, at which time the AHA claimed that it
had not, when it had in fact, received her request for the transfer and a two-bedroom
In January 2011, believing that the AHA’s delay in approving her port request
was the result of its discriminatory practices in violation of the FHA and Section 504
of the Rehabilitation Act, 29 U.S.C. § 794, Ms. Allen filed a complaint against the
AHA with HUD (“HUD Complaint”). In a letter dated January 24, 2011, HUD
notified the AHA of Ms. Allen’s HUD Complaint and explained the investigatory
procedure it would employ to assess the merits of the complaint.
On March 1, 2011, while her HUD Complaint was pending and after
resubmission of various forms to the AHA (including a “special-needs
accommodation form”), Ms. Allen received the transfer approval she sought. She
moved into her unit at the AHA on the same date. She did not sign the lease
agreement at that time, however, because she disputed the rental payment
calculation on grounds that it did not deduct certain medical expenses. Between
March 1, 2011, and March 30, 2011, the AHA made repeated demands – by
On November 29, 2010, the THA acceded to Ms. Allen’s request for a two-bedroom unit,
but the AHA “refused to acknowledge” THA’s decision and demanded Ms. Allen “to begin the
request for accommodation process all over.” (Am. Compl. ¶ 16.)
telephone calls and letters – that she sign the lease agreement, but Ms. Allen
continued to refuse based upon her belief that the rent calculation was wrong.
Ultimately, Ms. Allen received a letter in late March 2011, directing her to
attend a meeting at the AHA on April 13, 2011, and to bring documentation to
substantiate her claimed medical expenses. At the meeting, though, the AHA
representative declined to consider Ms. Allen’s medical expenses and demanded
that Ms. Allen sign the lease. Ms. Allen again refused. Less than a week later, on
April 18, 2011, Defendant Star Paschal, the AHA’s Section 8 Director, mailed Ms.
Allen a Notice of Termination of Assistance. The notice informed Ms. Allen that
her Section 8 assistance payments would be terminated based upon her failure to
sign required forms and for engaging in threatening behavior toward AHA
personnel.3 (Am. Compl. ¶ 38; Notice of Termination of Assistance Letter (Doc.
With respect to Ms. Allen’s HUD Complaint, HUD issued a letter to Ms.
Allen on April 29, 2011, explaining that it had completed its investigation and that,
“[b]ased on the evidence obtained during the investigation, . . . no reasonable cause
exist[ed] to believe that a discriminatory housing practice ha[d] occurred.” (Apr.
29, 2011 HUD Letter, at 1 (Doc. # 17-2).) Accordingly, HUD informed Ms. Allen
During the investigation of Ms. Allen’s HUD Complaint against the AHA, Ms. Allen
told a HUD investigator that “she was going to come to the [AHA] and lay her hands on Ms.
Paschal and pop two in her,” which Ms. Allen clarified meant that she was “going to shoot [Ms.
Paschal] twice.” (Doc. # 7-1, at 8.)
that her HUD Complaint was “hereby dismissed.” (Apr. 29, 2011 HUD Letter, at 1
(emphasis omitted).) Ms. Allen alleges that, after receiving HUD’s decision, she
continued to pursue “administrative remedies through at least March 2013” (Am.
Compl. ¶ 42), but her allegations do not elaborate upon the nature of those
Ms. Allen commenced this lawsuit on July 25, 2014. The original Complaint
alleged claims under 42 U.S.C. § 1983 for violations of constitutional due process
rights and under 42 U.S.C. §§ 1437–1437z-8, for violations of the United States
Housing Act. Defendants moved to dismiss the Complaint on grounds that § 1437
does not provide a private cause of action and that the two-year statute of limitations
barred the § 1983 claims. Rather than respond to Defendants’ motion to dismiss,
Ms. Allen amended her Complaint.4
The operative Amended Complaint brings a single count alleging violations
of the FHA, specifically, 42 U.S.C. § 3604. Ms. Allen alleges that Defendants
discriminated against her “because of her disability of mental illness” and by
refusing to make numerous “reasonable accommodations to their policies, practices,
and procedures.” (Am. Compl. ¶¶ 47–48.) Ms. Allen contends, among other
Based upon the filing of Ms. Allen’s Amended Complaint, the court denied Defendants’
motion to dismiss as moot.
things, that Defendants failed to approve in a timely manner her request for a
two-bedroom apartment to accommodate her “cardiac rehabilitation,” denied her
“the equal opportunity to use and enjoy the dwelling,” and failed to accommodate
(Am. Compl. ¶ 47.)
The Amended Complaint demands
compensatory damages, punitive damages, and injunctive relief.
Defendants filed a motion to dismiss the Amended Complaint under Rule
12(b)(6) on grounds that Ms. Allen commenced this FHA action outside the
applicable two-year statute of limitations. That motion is ripe for ruling.
The FHA declares it unlawful “[t]o discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter because of a
handicap of . . . that buyer or renter.” § 3604(f)(1)(A). Discrimination covered
under § 3604(f) includes a “refus[al] to make reasonable accommodations when
necessary to afford the person equal opportunity to use and enjoy a dwelling.”
Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir.
2014) (citing § 3604(f)(3)(B)). The FHA permits an “aggrieved person” to bring a
civil action in a federal district court “not later than 2 years after the occurrence or
the termination of an alleged discriminatory housing practice . . . to obtain
appropriate relief with respect to such discriminatory housing practice . . . .”
§ 3613(a)(1)(A). Section 3613 also contains a tolling provision, which is at the
center of the present dispute. It provides that the computation of the two-year
statute of limitations “shall not include any time during which an administrative
proceeding under this subchapter was pending with respect to a complaint or charge
under this subchapter based upon such discriminatory housing practice.”
Defendants contend that their decision to terminate Ms. Allen’s Section 8
benefits is the last alleged “discriminatory housing practice” and that this decision
occurred on April 18, 2011, the date on the AHA’s Notice of Termination of
Assistance. They argue that, because Ms. Allen did not commence this action until
more than three years later on July 25, 2014, the two-year statute of limitations bars
this action. In response, Ms. Allen does not seriously quibble with April 18, 2011,
as the “occurrence” date for purposes of § 3613(a)(1)(A), other than to suggest that
the “occurrence” date should be adjusted to account for the fact that she did not
receive the notice until August 24, 2011. When measured against the July 25, 2014
filing date of this lawsuit, however, August 24, 2011, is no more a timely date than is
April 18, 2011. Hence, Ms. Allen must rely on § 3613(a)(1)(B)’s tolling provision
to save her suit from the FHA’s two-year statute of limitations.5
It is assumed, without deciding, that Ms. Allen’s FHA claim, asserted for the first time in
the Amended Complaint, relates back to the original filing date of the Complaint. See Fed. R.
Civ. P. 15(c).
An administrative proceeding that meets § 3613(a)(1)(B)’s requirements will
toll the running of the statute of limitations during the proceeding’s pendency. Ms.
Allen argues that her HUD Complaint meets the requirements and that its pendency
tolled the FHA’s statute of limitations for a sufficient period of time so as to bring
this FHA action within the two-year window.
Ms. Allen filed her HUD Complaint in January 2011, alleging that
Defendants had engaged in discriminatory housing practices in violation of the
FHA, §§ 3601–19, and in disability discrimination in violation of Section 504 of the
Rehabilitation of Act of 1973, 29 U.S.C. § 794.6 There is no dispute that Ms.
Allen’s HUD Complaint – in that it included an alleged FHA violation under
§§ 3601–19 – commenced an administrative proceeding “under this subchapter . . .
with respect to a complaint . . . under this subchapter.” § 3613(a)(1)(B) (emphasis
The parties vigorously dispute, however, when this administrative
To support her FHA tolling argument, Ms. Allen points to the Amended
Complaint’s allegation that she “was pursing administrative remedies [with HUD]
The FHA’s implementing regulations acknowledge that, “[i]n addition to the Fair
Housing Act, other civil rights authorities may be applicable in a particular case,” including
“section 504 of the Rehabilitation Act of 1973.” 24 C.F.R. § 103.5. “Thus, where a person
charged with a discriminatory housing practice in a complaint filed under section 810 of the Fair
Housing Act is also prohibited from engaging in similar practices under . . . section 504 of the
Rehabilitation Act of 1973 . . . , the person may also be subject to action by HUD or other Federal
agencies under the rules, regulations, and procedures prescribed under . . . section 504 (24 CFR
part 8).” Id.
through at least March 2013.” (Am. Compl. ¶ 46.) To substantiate her argument,
Ms. Allen relies upon the letter, dated September 2, 2011, from HUD, informing her
that her request for a review of HUD’s Letter of Findings under Section 504 was
pending. She also relies upon email correspondence from a HUD official, dated
November 25, 2014, indicating that HUD was “unable to locate” documentation of
its decision pertaining to her prior request for a review of the Letter of Findings and
that, therefore, it would “re-review the case and issue a formal letter of
determination as expeditiously as possible.”7 (Nov. 25, 2014 email (Doc. # 22-1).)
The flaw in Ms. Allen’s argument is that it relies upon Section 504 to invoke
the FHA’s tolling provision. The September 2, 2011 HUD letter provided that 24
C.F.R. § 8.56 would govern Ms. Allen’s requested review. Section 8.56(h) is not
part of the FHA’s implementing regulations; rather, it falls within the regulations
implementing Section 504. See 24 C.F.R. § 8.1 (explaining that the purpose of Part
8, which includes § 8.56, “is to effectuate section 504 of the Rehabilitation Act . . .”);
see also id. § 8.56 (setting forth the administrative scheme for conducting
investigations under Section 504, including the preparation of a letter of findings).
The FHA, in turn, has its own administrative scheme through which HUD
Absent objections from the parties, the court has considered Ms. Allen’s exhibits, as well
as Defendants’ exhibits, on Rule 12(b)(6) review. The extrinsic exhibits are central to Ms.
Allen’s contention that she avoids the FHA’s statute-of-limitations bar based upon her continued
pursuit of “administrative remedies through at least March 2013” (Am. Compl. ¶ 42). See
Speaker, 623 F.3d at 1379.
administers complaints. See 42 U.S.C. § 3610; 24 C.F.R. Part 103. The FHA’s
administrative process begins when an “aggrieved person” files a complaint with the
Secretary of HUD alleging a discriminatory housing practice. § 3610(a)(1)(A)(i).
The Secretary then serves the complaint on respondents, “make[s] an investigation
of the alleged discriminatory housing practice[,] and complete[s] such investigation
within 100 days after the filing of the complaint.” Id. § 3610(a)(1)(B). At the
conclusion of the investigation, the Secretary “determine[s] based on the facts
whether reasonable cause exists to believe that a discriminatory housing practice has
occurred or is about to occur” and, if so, “issue[s] a charge on behalf of the aggrieved
person” or, if not, “dismiss[es] the complaint.” Id. § 3610(g); see also 24 C.F.R.
§ 103.400 (setting forth the procedures established by HUD when the determination
is that “no reasonable cause exists”).
Notably, neither the FHA nor its
implementing regulations establish an internal review process for a HUD Complaint
that is dismissed based upon a finding of no reasonable cause, as was Ms. Allen’s
HUD Complaint. See generally § 3610; 24 C.F.R. Part 103.
The court is aware of no authority, and none has been cited, demonstrating
that the pendency of an administrative proceeding with respect to a complainant’s
alleged violation of Section 504 tolls the running of the limitations period under the
FHA. The plain language of the FHA does not support this tolling contention.
The FHA’s tolling provision applies only when “an administrative proceeding under
this subchapter [is] pending with respect to a complaint or charge under this
subchapter based upon such discriminatory housing practice.” § 3613(a)(1)(B)
“This subchapter,” as referenced in § 3613(a)(1)(B), is
Subchapter I to Chapter 45 of the FHA and encompasses §§ 3601–19.
Additionally, the Eleventh Circuit has observed that “the FHA’s tolling provision
expressly limits its reach to administrative proceedings concerning discriminatory
housing practices made unlawful by the Act itself.” Hunt v. Ga. Dep’t of Cmty.
Affairs, 490 F. App’x 196, 198 (11th Cir. 2012) (citing §§ 3602(f), 3613(a)(1)(A),
(B)); cf. Kennedy v. Zanesville, 505 F. Supp. 2d 456, 488 n.17 (S.D. Ohio 2007)
(noting that an administrative proceeding under § 3610 is “for FHA claims only[,]
not . . . for all claims” and finding that, although plaintiffs had filed a charge with the
Ohio Civil Rights Commission, “there [was] no evidence that [p]laintiffs filed a
section 3610 proceeding with HUD, [and thus] tolling [was] not available”). Based
upon this authority, the administrative proceeding with respect to Ms. Allen’s HUD
Complaint alleging that the AHA discriminated against her based on her disability in
violation of Section 504 is not a proceeding with respect to an FHA claim alleging a
violation of §§ 3610–19; therefore, the FHA’s two-year statute of limitations does
not exclude the time during which Ms. Allen’s Section 504 administrative
proceeding was pending.
As further support for her tolling argument, though, Ms. Allen points out that
the case number referenced in HUD’s September 2, 2011 letter is the case number
assigned to her HUD Complaint. Ms. Allen is correct in that she brought a single
HUD Complaint, but that HUD Complaint alleged violations of both the FHA and
Section 504 and, thus, as explained, invoked two statutory mechanisms of review.
See also supra note 6 (noting HUD’s authority to investigate Section 504
In sum, the administrative review process referenced in HUD’s September 2,
2011 letter is not an “administrative proceeding under this subchapter” within the
meaning of § 3613(a)(1)(B) and did not toll the FHA’s two-year statute of
limitations. Rather, for purposes of § 3613(a)(1)(B), Ms. Allen’s administrative
proceeding under the FHA concluded in April 2011, when HUD “completed its
administrative processing of [her] complaint under the Act” and “dismissed” her
complaint. (Doc. # 20-1.) Ms. Allen delayed filing this lawsuit until July 2014 –
more than a year too late to support an FHA claim. Accordingly, it is apparent from
the Amended Complaint and Rule 12(b)(6) documents that § 3613(a)(1)(B)’s tolling
provision does not save Ms. Allen’s FHA action from the two-year time bar.
The FHA’s two-year statute of limitations bars this action. Accordingly, it is
ORDERED that Defendants’ Motion to Dismiss the Amended Complaint (Doc.
# 17) is GRANTED and that this action is DISMISSED with prejudice.
A final judgment will be entered separately.
DONE this 27th of February, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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