Ely v. Mobile Housing Board

Filing 80

ORDER granting 63 Motion for Summary Judgment. This action is dismissed with prejudice. Signed by Chief Judge William H. Steele on 4/7/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONAVETTE ELY,
Plaintiff,
v.
MOBILE HOUSING BOARD,
Defendant.

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CIVIL ACTION 13-0105-WS-B

ORDER
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
1

The Court notes that plaintiff’s summary judgment exhibits include the full
transcripts of the depositions of Monica Griffin (doc. 73) and Donavette Ely (doc. 74). This
submission runs afoul of the Local Rules, which specify that “[i]f discovery materials are
germane to any motion or response, only the relevant portions of the material shall be filed with
the motion or response.” Local Rule 5.5(c). Furthermore, the Federal Rules of Civil Procedure
specify that “[t]he court need consider only the cited materials” in the summary judgment record.
Rule 56(c)(3), Fed.R.Civ.P. Accordingly, the Court will not sift through uncited materials in
hopes of unearthing factual nuggets that might prove helpful to one side or the other. See, e.g.,
Page v. Winn-Dixie Montgomery, Inc., 702 F. Supp.2d 1334, 1338 n.4 (S.D. Ala. 2010) (“[T]his
Court will not scour uncited portions of the parties’ evidentiary submissions for any scrap of
evidence that may advance their positions.”) (citations omitted); Preis v. Lexington Ins. Co., 508
F. Supp.2d 1061, 1068 (S.D. Ala. 2007) (“Parties may not, by the simple expedient of dumping a
mass of evidentiary material into the record, shift to the Court the burden of identifying evidence
supporting their respective positions.”). Additionally, the Court’s review of the summary
judgment record has been hampered by both sides’ failure to furnish citations to specific portions
of the record to support specific statements of fact in their briefs. Applicable rules are clear that
statements of fact must be “appropriately referenced to the supporting document or documents
filed in the action.” Local Rule 7.2(a)-(b); see also Rule 56(c)(1), Fed.R.Civ.P. This Court
cannot and will not simply take counsel’s word for it that particular unsupported facts are
correct. See, e.g., SE Property Holdings, LLC v. Rookery III, 2013 WL 69030, *15 n.35 (S.D.
Ala. Jan. 3, 2013) (“Counsel’s ipse dixit … cannot be credited on summary judgment, in the
absence of citations to evidence that might reasonably support it.”); Taylor v. Holiday Isle, LLC,
561 F. Supp.2d 1269, 1275 n.11 (S.D. Ala. 2008) (“Unadorned representations of counsel in a
summary judgment brief are not a substitute for appropriate record evidence.”).

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. § 1437(d)(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

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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,”

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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

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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 four-bedroom
voucher. Once again, she requested a four-bedroom voucher based on Devin’s asthma; however,
Ely never returned the reasonable accommodation form to support the request. (Doc. 64, Exhs.
W, X, Y.) By Ely’s own admission, this omission was because Devin’s treating physician “felt
uncomfortable” completing the form, which would have contained a medical certification that
Devin “may not share a bedroom with another individual.” (Id.)
Notwithstanding this setback, Ely ultimately got her wish. In May 2010, the Board
issued Ely a four-bedroom voucher because “[her] family size and the ages of [her] children
justified it.” (Doc. 64, Exh. Y.)2 On that basis, Board officials took the previously issued
voucher for Ely, and made handwritten alterations to raise the number of bedrooms from 3 to 4
and to change the issue and expiration dates to 5/13/10 and 7/12/10, respectively. (Doc. 64, Exh.
I.) Those changes were initialed by a Board employee on the voucher. (Id.) Ely appeared at the
2

There is some confusion in the record as to the reason for issuance of the fourbedroom voucher. A separate letter from the Board dated May 11, 2010 states that Ely was
being granted a four-bedroom voucher “[d]ue to the present medical condition of your son,
Devin.” (Doc. 75, Exh. 19.) Be that as it may, the important point is that the four-bedroom
voucher was in fact issued, just as Ely requested.

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Board offices at 10:05 a.m. on May 13, 2010, and was presented with her new voucher; however,
she declined to take it. (Doc. 64, Exhs. J, K.) Plaintiff admits that she was issued a fourbedroom voucher on May 13, 2010, and that she refused to accept it because, in her words, “I
wanted a voucher free of errors.” (Ely Dep., at 68-69.) Ely was also unhappy with the
“shopping amount” of $746.00 because she felt it should be higher. (Id. at 70-72.)3
For reasons not divulged in the record, Ely did not immediately voice her concerns about
the new voucher to the Board. Instead, Ely waited until July 12, 2010, the voucher’s expiration
date, to notify her caseworker, Barbara Mitchell, that she had left the voucher at the front desk
because she was unhappy with its appearance and the shopping amount. (Doc. 64, Exh. K.)4
Notwithstanding this inexplicable delay, the Board granted her an extension and issued a new
four-bedroom voucher for Ely on July 19, 2010, with an expiration date of September 18, 2010.
(Doc. 64, Exh. N.) The Board notified Ely of this decision in writing on July 19, 2010 (attempts
to reach Ely telephonically were unsuccessful because she did not answer her phone and her
voicemail box was full). (Doc. 64, Exh. K.) The July 19 letter recited the expiration date of the
voucher, then stated as follows: “Please pick-up the voucher as soon as possible. No extensions
will be granted upon the expiration date of the voucher.” (Id. (emphasis in original).)
Plaintiff’s evidence is that she experienced difficulty locating a four-bedroom unit within
the maximum $746 monthly rental amount for which she had been approved. (Ely Dep., at 743

It appears that Ely’s voucher amount was calculated in the following manner:
The Board began with a $1,141 monthly rent figure for a four-bedroom unit, using HUD
payment standards based on the fair market rent. That figure was based solely on fair market
rent for a four-bedroom unit. From that amount was subtracted a $395 monthly utility
allowance, which is the Board’s calculation of an average utility consumption for a fourbedroom unit. If the participant’s income were high enough, the resulting $746 figure would be
increased based on the participant’s ability to contribute more in rent, subject to federal
guidelines limiting the total percentage of a participant’s income that may be spent on housing.
But Ely’s income was so low that she was left with the $746 figure. Other modifications could
be made to the rental amount based on certain amenities (such as walk-in closets or central air
conditioning) in the selected unit, following the inspection, but any such adjustments would be
small. (Griffin Dep., at 58-63, 65, 67-68.)
4

In a handwritten document to Mitchell and dated July 12, 2010, Ely stated that she
was “requesting an extension” because she “had a hard time locating 4 bedroom in our area for
the voucher amount.” (Doc. 64, Exh. L.) Ely also referenced her limited financial resources and
her difficulty saving for deposits and moving expenses. The July 12 letter says nothing about
Devin’s asthma as contributing to the delay.

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76.) Ely spoke with Mitchell and other Board officials, requesting that her voucher amount be
raised, but they declined to budge from the properly-calculated $746 maximum amount. (Doc.
64, Exh. U.) Shortly before her voucher expired, Ely found a home on Highland Woods Drive
that she deemed suitable, and moved in even though the Section 8 Program procedures had not
yet been completed. (Ely Dep., at 73-77.) Ely did not enter into a lease or agreement of any
kind with the landlord at the Highland Woods address, but simply accepted on faith the
landlord’s vague statement that she would “work with” Ely. (Id. at 80-81.) Plaintiff and the
landlord (who is not a party to this litigation) never reached an agreement as to rent. (Id. at 8485.)
On September 18, 2010, the date on which her voucher expired, Ely submitted to the
Board a “Request for Tenancy Approval” on the Highland Woods house, listing a monthly rental
amount of $1,200, some $454 above Ely’s approved voucher amount. (Doc. 64, Exhs. P, Q, R,
U.) This was so, even though Ely well knew that, in her words, “I cannot negotiate outside my
voucher.” (Ely Dep., at 91.) In other words, Ely knew that $746 was the maximum rental
amount on which she could agree with a landlord, regardless of who the payee was. And in
September 2010, both Ely and her landlord signed a document acknowledging that the maximum
rental amount the Board would pay would be $746, and that the rent could not exceed that
amount. (Id. at 98; doc. 75, Exh. 8.)5
On October 13, 2010, the Board issued a letter to Ely’s landlord explaining that “[t]he
maximum rent we can pay this year would be $746.00.” (Doc. 64, Exh. R.) The October 13
letter elaborated that “[f]amilies are not allowed to pay additional amounts” above and beyond
the Board’s contribution under the Section 8 Program. (Id.) The landlord checked and signed a
5

Plaintiff characterizes the landlord’s signature on this document as an agreement
to charge no more than $746 in rent. (Doc. 72, at 4-5.) That is not a reasonable or accurate
characterization, as the document in no way purported to specify the landlord’s agreement to
anything. Plaintiff’s own testimony was unequivocal that she never reached agreement with the
landlord as to any specific rental rate for the unit. Also, plaintiff testified that the landlord told
her the fair market value was “probably worth more than that,” that she told the landlord that Ely
was going to request a recertification for a higher voucher amount, and that the landlord and the
Board had negotiations outside her presence concerning the amount to be paid. (Ely Dep., at 8491.) As such, plaintiff’s attempt to frame this case as one in which a landlord agreed to rent a
unit to her for $746, then subsequently reneged, is not supported by record evidence and is
contravened by Ely’s own sworn testimony.

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box on the letter indicating that “[t]he maximum rent listed above is not acceptable.” (Id.)
Accordingly, the landlord did not sign a contract to rent a unit to Ely under the Section 8
Program. (Doc. 64, Exh. W.) Ely, who was already living in the Highland Woods house, never
paid any rent to her landlord and never reached agreement as to a monthly rental amount. (Ely
Dep., at 91, 96, 128.) In January 2011, the landlord commenced eviction proceedings against
Ely for non-payment of rent. (Doc. 64, Exh. S.)6
D.

Plaintiff’s Expired Voucher and Termination from the Program.

In the meantime, Ely faced pressing problems with respect to her status in the Section 8
Program. Recall that when the Board extended her four-bedroom voucher in July 2010, it
notified Ely that no further extensions would be granted beyond the September 18, 2010
expiration date. That date had now come and gone without Ely having submitted an acceptable
Request for Tenancy Approval Form identifying suitable housing anywhere close to the financial
constraints of that voucher. On September 27, 2010, the Board wrote to Ely, explained these
circumstances, and stated that “[y]our final voucher expired on September 18, 2010.” (Doc. 64,
Exh. Y.) On February 1, 2011, the Board followed up with another letter to Ely, reiterating the
pertinent facts and circumstances and concluding as follows: “Having exhausted all allowable
extensions of your voucher, you are hereby terminated from the [Section 8] Program.” (Doc. 64,
Exh. U.)
In the February 1 letter, the Board notified Ely that she could contact Board housing
manager Nancy Wilson telephonically to discuss the decision and, if she was unhappy with the
outcome of that discussion, could request a hearing. (Doc. 64, Exh. U.) Ely requested a hearing.
(Ely Dep., at 121.) On March 1, 2011, Wilson sent a letter to Ely explaining that Section
XXXIX of the Board’s Section 8 Administrative Plan does not require informal review after a
“determination not to approve the … extension of a voucher term.” (Doc. 64, Exh. V.) On that
basis, Wilson wrote, “[t]he MHB has determined that you will not be granted any further
voucher extensions. It has also been determined that you will not be granted an informal review
of this decision.” (Id.) Plaintiff’s termination from the Section 8 Program thus became final in
March 2011. Two years later, this litigation followed.
6

A default judgment was entered against Ely in the eviction matter on April 12,
2011, with Ely being given seven days to vacate the premises. (Doc. 75, Exh. 14.) Ely’s ensuing
appeal was dismissed with prejudice on July 25, 2011. (Doc. 75, Exh. 15.)

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III.

Summary Judgment Standard.
Summary judgment should be granted only “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make
'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
IV.

Analysis.
As noted, Ely’s Complaint asserts three categories of causes of action against the Board.

First, she brings a claim under 42 U.S.C. § 1983 alleging denial of due process, to-wit: The
Board “terminated Plaintiff’s housing assistance payments without providing her with due
process, and denied her adequate notice or a meaningful opportunity to be heard.” (Doc. 1, ¶
30.) Second, the Complaint alleges that the Board violated HUD requirements and regulations
by (i) terminating her housing assistance payments “without first advising her of the specific
grounds,” (ii) failing to provide Ely “with an opportunity to examine any documents or records
related to the termination,” (iii) failing to inform Ely of her “option to pursue a formal hearing if
a settlement is not reached in the informal conference hearing,” (iv) failing “to provide an
impartial hearing officer,” and (v) allowing the hearing officer’s decision to be “based
completely on hearsay evidence.” (Id., ¶¶ 24-27.) Third, the Complaint asserts statutory claims
for violation of what plaintiff calls the “Federal Housing Amendment Act” and the “American

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Disabilities Act,” grounded in allegations that the Board failed to provide reasonable
accommodation for Ely’s minor child’s disability. Plaintiff’s theory, as articulated in the
Complaint, is that “Defendant was aware of the Plaintiff’s minor child disability and the Plaintiff
may need more time to locate suitable housing for her family,” yet failed to provide an extension
of her voucher. (Id., ¶¶ 35, 39.) The Board has moved for summary judgment on each of these
causes of action.
A.

Due Process Claims.

Ely’s § 1983 claim alleges that the Board violated her due process rights under the Fifth
and Fourteenth Amendments by (i) “terminat[ing] Plaintiff’s housing assistance payments
without providing her with due process,” and (ii) “den[ying] her adequate notice or a meaningful
opportunity to be heard.” (Doc. 1, ¶ 30.)
As a general matter, plaintiff is correct that recipients of Section 8 housing benefits are
widely acknowledged to have a property interest in continued receipt of these benefits. See, e.g.,
Swift v. McKeesport Housing Authority, 726 F. Supp.2d 559, 574 (W.D. Pa. 2010) (“Plaintiff’s
Section 8 voucher, like welfare benefits, is a property interest for purposes of due process.”).7 In
the landmark case of Goldberg v. Kelly, 397 U.S. 254, 266, 90 S.Ct. 1011, 25 L.Ed.2d 287
(1970), the Supreme Court held that due process requires recipients of welfare benefits to be
granted a pre-termination evidentiary hearing with certain procedural safeguards.8 The Eleventh
7

See also McCall v. Montgomery Housing Authority, 809 F. Supp.2d 1314, 1324
(M.D. Ala. 2011) (noting lack of dispute that “recipients of public assistance, such as Section 8
assistance, have a protected property interest in continuing to receive such assistance”);
Stevenson v. Willis, 579 F. Supp.2d 913, 919 (N.D. Ohio 2008) (“Plaintiff’s participation in the §
8 Housing Choice Voucher Program … is a property interest protected by the requirement of
procedural due process.”); Junior v. City of New York, Housing Preservation and Development
Corp., 2013 WL 646464, *6 (S.D.N.Y. Jan. 18, 2013) (“It is well established that Section 8
tenants have a property interest in continuing to receive assistance payments.”).
8

As the Goldberg Court explained, “when welfare is discontinued, only a pretermination evidentiary hearing provides the recipient with procedural due process.” Goldberg,
397 U.S. at 264. “[A] recipient [must] have timely and adequate notice detailing the reasons for
a proposed termination, and an effective opportunity to defend by confronting any adverse
witnesses and by presenting his own arguments and evidence orally.” Id. at 267-68. Moreover,
“the recipient must be allowed to retain an attorney if he so desires.” Id. at 270. “Finally, the
decisionmaker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and
evidence adduced at the hearing.” Id. at 271. “And, of course, an impartial decision maker is
essential.” Id.

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Circuit has explained that the reasoning of Goldberg “applies with equal force to public housing
assistance provided pursuant to Section 8, where eligible participants rely on subsidies to meet
their basic need for housing.” Basco v. Machin, 514 F.3d 1177, 1182 n.7 (11th Cir. 2008). The
summary judgment record establishes that the Board did not grant Goldberg-style procedural
safeguards to Ely before terminating her from the Section 8 program. For example, Ely received
neither informal review nor a hearing on her challenge to the denial of further extensions of her
four-bedroom voucher, even after she requested a hearing.
Notwithstanding the foregoing, the Board moves for summary judgment on Ely’s due
process claims on the ground that no process was due in this case. It is beyond cavil, of course,
that no constitutional right to procedural due process lies in the absence of a protected liberty or
property interest.9 Defendant’s argument hews to that principle as follows: “At the point when
the Plaintiff failed to shop her voucher within 120 days and the voucher expired, her property
interest protected by due process ceased.” (Doc. 63, at 16.) Case authority supports this
proposition. See Burgess v. Alameda Housing Authority, 2004 WL 958004, *2 (9th Cir. May 3,
2004) (finding that plaintiff lacked a constitutionally protected property interest in “a further
extension of her Section 8 voucher, as such extensions were discretionary under the regulations
in effect at the time”); Chesir v. Housing Authority of City of Milwaukee, 801 F. Supp. 244, 248
(E.D. Wis. 1992) (“Until the certificate or voucher expires, the family has a property right to
continued participation in the program.”); Augusta v. Community Development Corp. of Long
Island, Inc., 2008 WL 5378386, *7 (E.D.N.Y. Dec. 23, 2008) (“Because there is no genuine
issue of material fact with respect to Augusta’s voucher expiring on its own terms, I conclude
that he was not denied due process.”). Succinctly put, then, the Board’s position is that Ely had
no property interest in discretionary extension of her voucher beyond the 120-day limit, and that
“the Plaintiff was not denied due process because she was not deprived of any property interest.”
(Doc. 78, at 7.)

9

See, e.g., Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011)
(“A Section 1983 procedural due process claim requires a plaintiff to prove … a deprivation of a
constitutionally-protected liberty or property interest.”); Behrens v. Regier, 422 F.3d 1255, 1259
(11th Cir. 2005) (“The requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”)
(citations omitted).

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Defendant’s conclusion that Ely was owed no due process with respect to her expired
voucher is bolstered by regulations promulgated by the Department of Housing and Urban
Development (“HUD”). The HUD regulations explain that in the Section 8 context, a public
housing authority (or “PHA”) such as the Board “is not required to provide a participant family
an opportunity for an informal hearing for … a PHA determination not to approve an extension
or suspension of a voucher term.” 24 C.F.R. § 982.555(b)(4).10 Likewise, those regulations
specify that “[t]he PHA is not required to provide the applicant an opportunity for an informal
review for … [a] PHA determination not to approve an extension or suspension of a voucher
term.” 24 C.F.R. § 982.554(c)(4).
In response, plaintiff does not challenge defendant’s argument that a constitutionally
protected property interest lapses when a Section 8 housing voucher expires. She neither
distinguishes nor rebuts the persuasive authorities on which defendant relies. She identifies no
case law supporting a contrary result (i.e., that a Section 8 Program recipient retains a property
interest even after a voucher expires by its terms). She points to nothing in either HUD
regulations or the Board’s administrative plan that would have entitled her to either a further
extension of her voucher or a hearing based solely on her post-expiration request.11 Instead,
Ely’s sole rejoinder to the Board’s “property interest” argument is that the Board initially gave
her the option of requesting informal review or a hearing, then rescinded same.12 As plaintiff

10

In its briefs, the Board also repeatedly relies on regulations that it says are found
at 24 C.F.R. § 887.165. (Doc. 63, at 10; doc. 78, at 6.) No such regulations exist, as Part 887 of
Chapter VIII of Subtitle B of Title 24 of the Code of Federal Regulations is reserved, and has
been since April 15, 1999. See 64 FR 13057 (“Part 887 is removed and reserved.”).
11

To the contrary, the Board has presented evidence showing that it allows vouchers
to remain open for a maximum of 120 days and that its administrative plan (like the parallel
HUD regulation) does not require hearings or even informal review of decisions not to extend a
voucher term. Plaintiff received the full 120-day voucher period.
12

Specifically, the February 1, 2011 letter from the Board to Ely concluded as
follows: “Having exhausted all allowable extensions of your voucher, you are hereby terminated
from the HCV Program. If you feel this determination was made in error, you may contact me at
434-2313 to discuss the matter. If you are not satisfied with the outcome of our discussion, you
may request a hearing in the matter.” (Doc. 76, Exh. 23.) The Board’s February 1 letter
promised nothing, and Ely has presented no evidence that she relied to her detriment on the
Board’s statements that she could call the housing manager and request a hearing if she wished.
(Continued)
-12-

puts it, her position is that summary judgment should be denied on the due process claims
because the Board “fails to explain why it would not be required to have a hearing once one was
offered to Ely.” (Doc. 72, at 17.) In essence, then, plaintiff’s (undeveloped and unsupported)
argument is that the Board’s letter dated February 1, 2011 notifying Ely that she could request a
hearing irrevocably estopped it from denying her a hearing and created a constitutionally
protected property interest. The Court does not agree.
Absent extenuating circumstances not present here, constitutional law does not create
property interests by estoppel. See, e.g., Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458,
465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981) (“A constitutional entitlement cannot be created – as
if by estoppel – merely because a wholly and expressly discretionary state privilege has been
granted generously in the past.”) (emphasis, internal quotation marks and citation omitted);
Bryan Media, Inc. v. City of St. Petersburg, 2008 WL 4183933, *1 (11th Cir. Sept. 12, 2008)
(concluding that plaintiff’s estoppel argument did not give rise to a property interest, where
plaintiff adduced no evidence that city’s actions rose above mere negligence and made no
showing of a serious injustice). Furthermore, “a benefit is not a protected entitlement if
government officials may grant or deny it in their discretion.” Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). The Board never
promised Ely a hearing. It never told her she was entitled to one. Applicable regulations and
administrative plans conferred upon the Board broad discretion to determine whether to grant a
hearing or not. Even if the Board had promised to give Ely a hearing, she cannot show reliance
or injustice in a manner that might give rise to a colorable argument of equitable or promissory
estoppel. The February 1 letter does not create a constitutionally protected property interest out
of thin air. Yet plaintiff points to nothing else that might serve as a basis for a property interest
underlying her due process claims.
When the smoke clears, what remains is this: The Board argues that Ely’s due process
claims fail as a matter of law because she had no property interest in further extension of an
expired Section 8 Program voucher. Case authorities, federal regulations, and the Board’s

By all appearances, plaintiff is attempting to seize opportunistically on an error in the February 1
letter to gin up a property interest that otherwise would not exist, even though nothing about that
error prejudiced her.

-13-

administrative plan all bolster that conclusion. In response, plaintiff’s only counterargument is
that the Board could not deny her a hearing once it offered her one. That argument lacks legal or
equitable support in the record and briefs, and will not be credited on summary judgment. On
the record and arguments presented by the parties, the Court finds that Ely did not have a
property interest in receiving Section 8 Program benefits after her voucher expired, by its plain
terms. Absent a protectable property interest, plaintiff’s due process claims brought under 42
U.S.C. § 1983 fail as a matter of law; therefore, summary judgment will be granted to defendant
on those claims.
B.

Claims Relating to HUD Regulations and Requirements.

Ely also brings separate claims against the Board for violating HUD regulations
concerning notice and a hearing. In particular, Ely maintains that the Board failed to comply
with the notice provisions of 24 C.F.R. § 982.555(c)(2) and the hearing requirements of 24
C.F.R. § 982.555.13
The glaring defect in Ely’s claims predicated on the HUD regulations is that, on their
face, those regulations are inapplicable here. Plaintiff cites the notice provisions of §
982.555(c)(2). (Doc. 72, at 11-13.) But that regulation is confined to “cases described in
paragraphs (a)(1)(iv), (v) and (vi) of this section,” which concern determinations that a family “is
residing in a unit with a larger number of bedrooms than appropriate,” that assistance for a
participant family will be terminated “because of the family’s action or failure to act,” or that
13

In the Complaint, Ely also makes reference to alleged violations of 42 U.S.C. §
1437d(k)(1) & (3). That code section directs HUD to issue regulations that “require each public
housing agency receiving assistance under this chapter to establish and implement an
administrative grievance procedure under which tenants will – (1) be advised of the specific
grounds of any proposed adverse public housing agency action; … [and] (3) have an opportunity
to examine any documents or records or regulations related to the proposed action.” 42 U.S.C. §
1437d(k). Thus, any violation by the Board of § 1437d(k) would be subsumed within discussion
of violation of HUD’s implementing regulations promulgated pursuant to that statute. For that
reason, the Court will not examine separately whether the Board violated § 1437d(k). If it
complied with HUD’s regulations, then it complied with the statute. If not, then it did not.
Nothing in the parties’ summary judgment briefs suggests otherwise; indeed, they contain no
substantive discussion of § 1437d(k). For her part, plaintiff appears to acknowledge on summary
judgment that her claims are governed by analysis of the regulations, not the statute, as follows:
“The applicable statute for Section 8 housing entitlement subsidies, 42 U.S.C. § 1437f, contains
no language as to the procedure to be used by a PHA for termination of these subsidy benefits.”
(Doc. 72, at 14-15.)

-14-

assistance will be terminated “because the participant family has been absent from the assisted
unit for longer than the maximum period.” § 982.555(a)(iv)-(vi), (c)(2). None of those
circumstances are present here.14 The Board’s determination challenged by Ely was one “not to
approve an extension or suspension of a voucher term.” § 982.555(b)(4). That determination is
expressly beyond the boundaries of the notice obligation set forth in § 982.555(c)(2); therefore,
the Board was under no obligation to comply with the notice requirements of that regulation.15
Plaintiff also takes the Board to task because, she says, “if there is no right to request a
hearing, the notice must so state.” (Doc. 72, at 12.) She later repeats the argument, saying, “[I]f
MHB’s contention is that Ely was not entitled to a hearing then the notice was required to state
that she was not entitled to a hearing.” (Id. at 13.) Plaintiff provides no citation to any
regulation or other authority for this purported “requirement.” Of course, it is plaintiff’s
14

Superficially, the subsection requiring notice for a determination that assistance
will be terminated “because of the family’s action or failure to act” might appear applicable to
Ely’s circumstances. Closer inspection reveals that this subsection (24 C.F.R. § 982.555(a)(v))
cross-references § 982.552, which allows for termination of program assistance on the following
grounds: (i) violation of family obligations under the program as set forth in § 982.551, (ii)
eviction from federally assisted housing in the last five years, (iii) previous termination of
assistance under the program for any family member, (iv) commission of fraud, bribery or other
corrupt or criminal acts in connection with a federal housing program, (v) rent or other amounts
owed to the PHA, (vi) failure to reimburse a PHA for amounts paid to an owner for rent,
damages to the unit, or other lease amounts owed, (vii) breach of an agreement with the PHA to
pay amounts owed, (viii) failure to comply, without good cause, with FSS contract of
participation, (ix) abusive or violent behavior toward PHA personnel, (x) failure to fulfill
obligations under a welfare-to-work voucher program, or (xi) criminal activity or alcohol abuse.
See 24 C.F.R. § 982.552(c)(i)-(xi). No determination was made by the Board that might
conceivably fall within those parameters; therefore, § 982.555(a)(v) is inapplicable in this case
and cannot form a basis for imputing the notice requirement to the Board’s determination not to
extend Ely’s voucher.
15

Besides, to the extent that Ely is complaining that the Board never provided notice
containing “a brief statement of reasons for the decision,” § 982.555(c)(2)(i), undisputed record
facts are to the contrary. A letter from the Board to Ely dated September 27, 2010 explains in
substantial detail that her voucher was expired, and references the July 19 letter specifying that
no further extensions would be granted. (Doc. 64, Exh. Y.) And a letter from the Board to Ely
dated February 1, 2011 explains that she was being terminated from the program because she had
“exhausted all allowable extensions of [her] voucher.” (Doc. 64, Exh. U.) A third letter from the
Board to Ely dated March 1, 2011 explains why it was denying her request for a hearing on the
voucher extension issue. (Doc. 64, Exh V.) Plaintiff does not explain why she thinks these three
written notices are insufficient under § 982.555(c)(2)(i), even if that regulation applied.

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obligation to furnish the Court with citations of authority in support of her legal arguments. Yet
she has not done so. As such, the Court is unable to discern any viable legal basis for plaintiff’s
claim that the Board violated HUD requirements by failing to notify her that she was not entitled
to a hearing contemporaneously with its determination that no further extensions to her voucher
would be granted.
Next, plaintiff argues that the Board violated the hearing requirements of § 982.555.
(Doc. 72, at 13-18.) Again, that regulation expressly provides that a PHA need not provide an
informal hearing for a “determination not to approve an extension or suspension of a voucher
term.” 25 C.F.R. § 982.555(b)(4). That is precisely the determination at issue in this case. The
Board found that Ely’s voucher was expired and that no further extensions would be granted.
That determination falls squarely within the confines of § 982.555(b)(4); therefore, the Board
could not have violated that regulation by not providing her a hearing. Defendant is entitled to
summary judgment on this claim, as well.
In a last-ditch effort to bolster this cause of action, plaintiff contends that her claims as to
regulatory violations are well-founded because “Griffin, MHB’s corporate representative[,]
admitted that regulation [sic] were not followed and that procedures were not handled properly in
Ms. Ely’s case.” (Doc. 72, at 17-18.) Plaintiff cites to no specific pages of Monica Griffin’s
deposition in this case, but would apparently refer the Court generically to the entire 71-page
transcript. This is procedurally improper. See Rule 56(c)(1)(A) (“A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by … citing to particular parts of
materials in the record”) (emphasis added). The Court has no idea what portion of Griffin’s
transcript plaintiff relies on for this startling proposition. This argument is not and cannot be
credited on summary judgment to save these claims from dismissal.16

16

Griffin’s testimony was emphatic that she could not address why Ely was not
granted an extension under these circumstances because she was not the manager making those
decisions. (Griffin Dep., at 38.) She testified that, “[g]enerally, an extension would be granted
and the person would be given paperwork to shop for another unit.” (Id.) But she certainly did
not testify that the regulations require such a result or that it was a perversion of the program for
that not to happen in Ely’s case. Again, Griffin was not familiar with the specifics of why Ely’s
case was handled as it was; therefore, she could not explain certain particularities about which
plaintiff’s counsel questioned her. She did testify quite clearly, however, that when things do not
work out for a tenant and a particular unit, the voucher will be extended “[i]f they have not
exhausted their 120 days.” (Griffin Dep., at 37.) That’s just it: Ely had already exhausted her
(Continued)
-16-

To the extent that plaintiff argues that the Board violated HUD regulations or
requirements by not providing further extensions beyond the 120 days Ely was granted to shop
her voucher, such a claim cannot survive scrutiny, either. Applicable HUD regulations specify
that “[t]he initial term of a voucher must be at least 60 calendar days.” 24 C.F.R. § 982.303(a).
Plaintiff’s voucher plainly satisfied that criterion. Moreover, those regulations go on to state
that, “[a]t its discretion, the PHA may grant a family one or more extensions of the initial
voucher term in accordance with PHA policy as described in the PHA administrative plan.” Id. §
982.303(b)(1). Thus, the Board’s decision of whether or not to allow Ely extensions of her
voucher beyond the initial 60-day term was discretionary, with such discretion being cabined by
the Board’s own policy. The only evidence before the Court on summary judgment is that Board
policy provided for a maximum term of 120 days for vouchers in the Section 8 Program.
(Griffin Dep., at 65-66.) Plaintiff identifies no genuine issues of fact as to whether the denial of
further voucher extensions to Ely ran afoul of Board policy or otherwise abused the Board’s
discretion granted by HUD regulations; therefore, any claim by Ely that the Board violated HUD
requirements by not extending her voucher beyond the 120-day period must fail.17
C.

Disability Discrimination / Failure to Accommodate Claims.

Plaintiff’s final category of claims asserted against the Board sounds in theories of
disability discrimination and failure to provide reasonable accommodation. Such claims were

120 days. Griffin was unequivocal in her testimony that 120 days is “the total amount of time
that we hold, we save that pot of money for a family to find a unit,” and that during that 120-day
period, the participant should complete the entire process (including finding a unit and passing
all inspections). (Id. at 70-71.) Griffin further testified that Ely was not granted a hearing on the
extension issue because the Board’s administrative plan did not require it. (Id. at 49-50.) Far
from lending credence to plaintiff’s claims of procedural violations, then, Griffin’s testimony
squarely supports the Board’s position on these HUD regulation causes of action.
17

To be sure, HUD regulations do oblige PHAs to provide extensions of the
voucher term as a reasonable accommodation for a disabled family member. See 24 C.F.R. §
982.303(b)(2) (“If the family needs and requests an extension of the initial voucher term as a
reasonable accommodation … to make the program accessible to a family member who is a
person with disabilities, the PHA must extend the voucher term up to the term reasonably
required for that purpose.”). The trouble with this argument is that, as discussed infra, plaintiff’s
evidence shows neither that she needed nor that she requested an extension of the voucher term
as an accommodation for her son’s asthma. As such, the Court finds no triable issues of fact on
any claim Ely may be asserting that is predicated on alleged violation of § 982.303(b)(2).

-17-

purportedly brought under the Fair Housing Amendments Act of 1988 (“FHAA”), as codified at
42 U.S.C. § 3604, and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
(“ADA”).18 “Due to the similarity of the ADA and the FHA’s protections of individuals with
disabilities in housing matters, courts often analyze the two statutes as one.” Caron Foundation
of Florida, Inc. v. City of Delray Beach, 879 F. Supp.2d 1353, 1364 (S.D. Fla. 2012).
The Complaint makes clear that Ely’s disability discrimination claims are rooted in the
contention that the Board “was aware of [Devin’s] disability and the Plaintiff may need more
time than the normal person to locate suitable housing for her family,” but that the Board
nonetheless “refused to provide the Plaintiff with any additional extensions for her four (4)
bedroom voucher.” (Doc. 1, ¶¶ 35, 39.) Plaintiff reiterates this argument in her brief, insisting
that the Board failed to reasonably accommodate her son’s disability by declining to extend her
voucher. (Doc. 72, at 22.)19
18

Plaintiff’s summary judgment brief maintains that her disability discrimination
claims are also brought pursuant to Section 504 of the Rehabilitation Act. (Doc. 72, at 19-21.)
Plaintiff cites paragraphs 73 through 75 of her Complaint for this proposition. (Id. at 21.) But
the Complaint lacks any such numbered paragraphs, and is devoid of references to the
Rehabilitation Act. It is improper for a litigant to invoke a previously unpleaded statutory cause
of action on summary judgment. See, e.g., Miccosukee Tribe of Indians of Florida v. United
States, 716 F.3d 535, 559 (11th Cir. 2013) (“In this circuit, a plaintiff cannot amend his complaint
through argument made in his brief in opposition to the defendant’s motion for summary
judgment.”). For that reason, the Court does not consider plaintiff’s Rehabilitation Act
arguments on the merits, as no claims under that statute have been joined herein.
19

Ely’s brief also attempts to inject a new reasonable-accommodation theory, towit: That the Board is liable for disability discrimination because it “fail[ed] to raise the amount
of voucher payment” as an accommodation for Devin’s disability. (Doc. 72, at 22.) This claim
nowhere appears in the Complaint. Again, it is improper and impermissible for a plaintiff to use
her summary judgment brief as a vehicle for de facto amendment of her pleadings. See, e.g.,
American Federation of State, County and Mun. Employees Council 79 v. Scott, 717 F.3d 851,
863 (11th Cir. 2013) (“A plaintiff may not amend her complaint through argument in a brief
opposing summary judgment or one advocating summary judgment.”) (citation and internal
quotation marks omitted); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1258 n.27 (11th
Cir. 2012) (“It is well-settled in this circuit that a plaintiff may not amend the complaint through
argument at the summary judgment phase of proceedings.”). Accordingly, the Court does not
consider plaintiff’s unpleaded disability discrimination claim(s) relating to failure to increase the
voucher amount. Even if such claims were properly joined in this action, the Board would be
entitled to summary judgment because the record is devoid of evidence that Ely’s requests for a
larger shopping amount were in any way related to Devin’s disability, that the market rent for a
four-bedroom unit that reasonably accommodated Devin’s asthma would be higher than that for
(Continued)
-18-

In the housing context, the law is clear that “the duty to make a reasonable
accommodation does not simply spring from the fact that the handicapped person wants such an
accommodation made.” Schwarz v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir.
2008) (citation omitted). That is to say, a defendant “cannot be liable for refusing to grant a
reasonable and necessary accommodation if the [defendant] never knew the accommodation was
in fact necessary.” Id. (citation omitted). Although a request for accommodation need not
employ “magic words,” the defendant “must have enough information to know of both the
disability and desire for an accommodation, or circumstances must at least be sufficient to cause
a reasonable [landlord] to make appropriate inquiries about the possible need for an
accommodation.” United States v. Hialeah Housing Authority, 2011 WL 989815, *3 (11th Cir.
Mar. 22, 2011) (citation omitted). “Simply put, a plaintiff must actually request an
accommodation and be refused in order to bring a reasonable accommodation claim under the
FHA.” Schwarz, 544 F.3d at 1219.
Plaintiff’s disability discrimination claims under the FHAA and the ADA suffer from a
systematic failure of proof in multiple respects. First, the record shows that the Board lacked
knowledge of Devin’s health condition as of spring 2010. Even after the Board reminded her in
writing, plaintiff failed or refused to return the medical verification for her reasonable
accommodation request at that time (which was that Devin required a separate bedroom), and
admitted that Devin’s physician was not comfortable completing the form. (Doc. 64, Exhs. W,
X.) Without that medical information, the Board could not know whether Devin was then
disabled and, if so, what accommodations he might require. Second, the summary judgment
record is devoid of evidence suggesting any linkage between Ely’s son’s health condition and the
length of time it took her to locate a four-bedroom unit.20 Stated differently, the record taken in

a four-bedroom unit that did not, or that the Board had any reason to know of a nexus between
Devin’s health condition and Ely’s demands for a bigger shopping amount.
20

Applicable law is clear that a plaintiff bringing a claim of disability discrimination
in housing based on failure to provide reasonable accommodation must show “a refusal to make
reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use and enjoy a
dwelling.” 42 U.S.C. § 3604(f)(3)(B) (emphasis added); see also 24 C.F.R. § 982.303(b)(2) (“If
the family needs and requests an extension of the initial voucher term as a reasonable
accommodation … to make the program accessible to a family member who is a person with
(Continued)
-19-

the light most favorable to Ely does not support a reasonable inference that Devin’s condition
had any deleterious impact on Ely’s ability to shop the voucher.21 Plaintiff’s insistence in her
Complaint that Devin’s disability meant that “the Plaintiff may need more time than the normal
person to locate suitable housing for her family” (doc. 1, ¶¶ 35, 39) is a premise that is utterly
lacking in factual support in the summary judgment record. Of course, plaintiff’s bare say-so in
her pleading is not sufficient to overcome Rule 56 scrutiny.22
Third, even if plaintiff’s evidence could support a reasonable inference that Devin was
disabled in mid-2010 and that his disability somehow impaired Ely’s ability to shop the Section

disabilities, the PHA must extend the voucher term up to the term reasonably required for that
purpose.”). In other words, Ely must show that an extension of her voucher was necessary to
afford her family (and specifically her son Devin) an equal opportunity to access and participate
in the Section 8 Program. No facts before the Court would support a conclusion that program
participants with asthmatic family members require longer periods of time to shop their vouchers
than program participants without asthmatic family members, either in general or in Ely’s
specific circumstances. Yet Ely’s disability discrimination claims against the Board hinge on
that very notion.
21

There is no evidence, for example, that prospective landlords expressed reluctance
to rent a unit to a family with an asthmatic child. Nor is there evidence that Ely’s efforts to shop
the voucher were stymied because no available units were suitable for Devin. Instead, plaintiff’s
own evidence shows the following: (i) she squandered the first 60 days of the four-bedroom
voucher by refusing to pick it up from the Board’s offices, despite actual knowledge that it was
available and waiting for her (Ely Dep, at 68-69); (ii) during the second 60 days, prospective
landlords were unwilling to deal with her because they could command a higher rent amount
from non-Section 8 sources (id. at 74-76); and (iii) she moved into a house with a landlord who
demanded $1,200 in rent, more than $400 above her voucher amount. By plaintiff’s own
narrative, these are the facts and circumstances that caused her not to complete the voucher
shopping process within the allotted 120 days. No reasonable fact finder could conclude that
those facts and circumstances have anything to do with, or were exacerbated in any way, by the
fact that Ely’s son suffers from asthma.
22

The same is true of counsel’s assertion in plaintiff’s summary judgment brief that
the Board had a “policy of denying Section 8 voucher extensions and increases in voucher
amounts to those who are having difficulty finding suitable housing due to a disability.” (Doc.
72, at 27.) Plaintiff points to no evidence from which a reasonable finder of fact might be able to
infer that Ely was “having difficulty finding suitable housing due to a disability,” as opposed to
some other reason (such as unfavorable market conditions, unreasonable expectations by
plaintiff, or failure to shop the voucher with reasonable diligence during the four-month period
provided); therefore, this conclusory statement cannot and will not be credited on summary
judgment.

-20-

8 Program voucher in a timely manner, summary judgment would remain appropriate on this
category of claims. The reason is that Ely never requested an extension of her voucher as a
reasonable accommodation.23 Now, the Court is well aware that a plaintiff need not use
talismanic language to invoke the reasonable accommodation provisions of the FHAA or the
ADA. However, she must do something to make the defendant aware of a connection between
her request and the underlying disability (or the nexus must be obvious). Here, Ely did not do
so. To be sure, she did ask the Board to grant her an extension on her voucher. But she said or
did nothing to place the Board on notice that her request for extension had anything to do with
Devin’s medical condition. The summary judgment record lacks evidence that Ely ever
complained to the Board (or that the Board had any reason to suspect) that Devin’s asthma
somehow delayed, complicated or hindered her efforts to shop the four-bedroom voucher during
the designated 120-day period (the initial 60 days plus the 60-day extension). Taken in the light
most favorable to plaintiff, the record simply cannot support a reasonable inference that the
Board knew or had any reason to believe that Ely’s delays in shopping her voucher were
connected to Devin’s asthma, or that she was requesting an extension of the voucher as an
accommodation for his disability.24 Accordingly, the Board is entitled to summary judgment on
plaintiff’s claims of disability discrimination / failure to accommodate, whether postured under
the FHAA, the ADA, or any other statutory or regulatory scheme.

23

As defendant accurately put it, “The only request made by the Plaintiff was for a
hearing to review the Mobile Housing Board’s decision to deny any further extension to her
Housing Choice Voucher.” (Doc. 78, at 8.) So Ely told the Board she wanted a hearing on the
denial of her extension, but there is no indication in the record that she ever told the Board she
needed a further extension as an accommodation for Devin’s asthma because it was taking her
longer to shop the voucher than it would for a program participant without an asthmatic family
member.
24

The summary judgment record does reflect that Ely requested a fourth bedroom as
an accommodation for Devin’s disability; however, that request cannot form the basis of an
actionable claim under the FHAA or the ADA. The record shows that, even with plaintiff’s
insufficient medical documentation, the Board granted plaintiff a fourth bedroom on her voucher
in May 2010. That is the only accommodation that Ely ever requested from the Board that she
linked in any way to Devin’s medical condition, and it was granted.

-21-

V.

Conclusion.
For all of the foregoing reasons, Defendant’s Motion for Summary Judgment (doc. 63) is

granted. There being no genuine issues of material fact as to any claim or cause of action
asserted herein, this action is dismissed with prejudice. A separate judgment will enter.
DONE and ORDERED this 7th day of April, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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