Cedric Tyrone Moore v Housing Authority of the City of Los Angeles et al

Filing 30

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge John F. Walter for Report and Recommendation (Issued) 28 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that Defendants' motion to dismiss is granted. IT IS FURTHER ORDERED that Judgment shall be entered dismissing the First Amended Complaint and the action without leave to amend and with prejudice. (Attachments: # 1 Report and Recommendation) (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CEDRIC TYRONE MOORE,

) NO. CV 15-4687-JFW(E)
)
Plaintiff,
)
)
v.
) REPORT AND RECOMMENDATION OF
)
HOUSING AUTHORITY OF THE
) UNITED STATES MAGISTRATE JUDGE
CITY OF LOS ANGELES, et al., )
)
Defendants.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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John F. Walter, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District

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Court for the Central District of California.

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BACKGROUND

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Plaintiff, proceeding in forma pauperis, filed this civil rights

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action pursuant to 42 U.S.C. section 1983 on June 19, 2015.

The

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action was reassigned under General Order 05-07 on July 6, 2015.

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In the Complaint, Plaintiff alleged that the Housing Authority of

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the City of Los Angeles (“Housing Authority”) and Housing Authority

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employees unlawfully terminated Plaintiff’s “Section 8” housing

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subsidy.

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due process right and violation of section 504 of the Rehabilitation

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Act of 1973, 29 U.S.C. § 794(a), Pub. L. 93-112, Title V, § 504

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(Sept. 26, 1973).

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Authority; (2) Housing Authority senior investigator Pedro Vargas;

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(3) Housing Authority President and CEO Douglas Guthrie; and

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Plaintiff asserted violations of Plaintiff’s constitutional

Plaintiff named as Defendants: (1) the Housing

(4) Housing Authority Administrative Hearing Officer Dale Nowicki.

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On July 15, 2015, the Court issued an Order Dismissing Complaint

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with Leave to Amend.

On August 13, 2015, Plaintiff filed a First

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Amended Complaint, the operative pleading.

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Complaint names as Defendants only the Housing Authority and Pedro

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Vargas.

The First Amended

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On October 14, 2015, Defendants filed a “Motion to Dismiss

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Plaintiff’s First Amended Complaint” (“Motion to Dismiss”),

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accompanied by a Request for Judicial Notice and exhibits.

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November 5, 2015, Defendants filed an additional exhibit.

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November 16, 2015, Plaintiff filed an Opposition to the Motion to

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Dismiss.

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without oral argument.

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On
On

The Court has taken the Motion to Dismiss under submission

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STANDARDS GOVERNING MOTION TO DISMISS

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To survive a motion to dismiss under Rule 12(b)(6), “a complaint

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must contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.”

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556 U.S. 662, 678 (2009) (citation and internal quotations omitted).

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“A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal,

Id.

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The Court must accept as true all non-conclusory factual

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allegations in the complaint and must construe the complaint in the

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light most favorable to the plaintiff.

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Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009).

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court may not consider material beyond the complaint in ruling on a

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Fed. R. Civ. P. 12(b)(6) motion.”

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Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and

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footnote omitted).

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in the pleadings, exhibits attached to the complaint, and matters

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properly subject to judicial notice.”

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1212 (9th Cir. 2012) (citation omitted).

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true “allegations that contradict matters properly subject to judicial

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notice or by exhibit.”

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Angeles, 759 F.3d 1112, 1115 (9th Cir. 2014), cert. denied, 135 S. Ct.

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2313 (2015); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96

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(9th Cir. 1998) (“[W]e are not required to accept as true conclusory

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allegations which are contradicted by documents referred to in the

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complaint.”).

Zucco Partners, LLC v.
“Generally, a

Intri-Plex Technologies, Inc. v.

The Court may consider “only allegations contained

Akhtar v. Mesa, 698 F.3d 1202,
The Court need not accept as

See Gonzalez v. Planned Parenthood of Los

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The Court may not dismiss a pro se complaint without leave to

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amend unless “it is absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.”

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (citations and

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quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000) (en banc) (district court should grant leave to amend

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“unless it determines that the pleading could not possibly be cured by

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the allegation of other facts”) (citation and internal quotations

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omitted).

Karim-Panahi v. Los

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OVERVIEW OF SECTION 8 HOUSING CHOICE VOUCHER PROGRAM

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As the Ninth Circuit has explained:

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The federal government provides rental assistance for

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low and moderate income families, the elderly, and the

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disabled through what is known as “the section 8 program.”

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Congress added the section 8 program to the United States

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Housing Act of 1937 in 1974 by enacting the Housing and

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Community Development Act of 1974, Pub.L. No. 93–383, §

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201(a), 88 Stat. 633, 662–66 (1974) (codified as amended at

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42 U.S.C. § 1437f).

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the section 8 program is “aiding low-income families in

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obtaining a decent place to live and . . . promoting

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economically mixed housing.”

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program is managed federally by HUD, and administered

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locally by public housing authorities (“PHA”).

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tenants must sign a lease and pay a portion of their income

The express congressional “purpose” of

42 U.S.C. § 1437f(a).

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The

Section 8

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toward rent.

The remainder of the rent charge is paid by

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PHA pursuant to a housing assistance payment (“HAP”)

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contract between PHA and the owner. . . .

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Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1202 (9th Cir.

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2009).

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A PHA such as the Defendant Housing Authority may terminate

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assistance to a family for a number of reasons, including the family's

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violation of any obligation under the program, fraud, or criminal

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activity as described in 24 C.F.R. section 982.553.

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982.552(c)(1)(i), (iv), (xi).

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(1) the obligation to provide true and complete information to the

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PHA; and (2) the obligation not to commit fraud or engage in drug-

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related criminal activity or violent criminal activity.

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982.551(b)(4), (k), (l).

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determines that any member of the family has violated the obligation

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not to engage in any drug-related criminal activity.

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982.553(b)(1)(iii).

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criminal activity by a household member if the PHA determines, based

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on a preponderance of the evidence, that the household member has

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engaged in the activity, regardless of whether the household member

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has been arrested or convicted for such activity.

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982.553(c).

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PHA decision is subject to a consideration of reasonable

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accommodation.

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24 C.F.R. §§

The family’s obligations include:

24 C.F.R. §§

A PHA may terminate assistance if it

24 C.F.R. §

A PHA may terminate assistance because of

24 C.F.R. §

If the family includes a person with a disability, the

24 C.F.R. § 982.552(c)(2)(iv).

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If a PHA proposes to deny admission for criminal activity shown

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by a criminal record, the PHA must provide to the subject of the

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record and to the applicant copies of the criminal record.

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§ 982.553(d)(1).

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dispute the accuracy and relevance of that record in the informal

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review process.

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because of criminal activity shown by a criminal record, the PHA must

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notify the household of the proposed terminating action, and must

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provide to the subject of the record and to the tenant copies of the

24 C.F.R.

The PHA must give the family an opportunity to

Id.

If a PHA proposes to terminate assistance

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criminal record and must also give the family an opportunity to

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dispute the accuracy and relevance of that record.

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982.553(d)(2).

24 C.F.R. §

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A PHA must give a Section 8 participant family the opportunity

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for an informal hearing before it terminates the family’s benefits

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under an outstanding HAP contract.

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family must be given the opportunity prior to the hearing, to examine

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any PHA documents that are directly relevant to the hearing.

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C.F.R. § 982.555(e)(2)(i).

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available for examination on request of the family, the PHA may not

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rely on the document at the hearing.

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present evidence and to question any witnesses at the hearing.

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C.F.R. §§ 982.555(e)(5).

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regardless of the standards of admissibility applicable in judicial

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proceedings.

24 C.F.R. § 982.555(a)(2).

The

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If the PHA does not make a document

Id.

The family has the right to
See 24

The hearing officer may consider evidence

24 C.F.R. § 555(e)(5).

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Each PHA must “administer the program in conformity with the Fair
Housing Act, Title VI of the Civil Rights Act of 1964, section 504 of
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the Rehabilitation Act of 1973, and Title II of the Americans with

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Disabilities Act.”

24 C.F.R. § 982.53(b)(1).

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SUMMARY OF ALLEGATIONS OF FIRST AMENDED COMPLAINT

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Although the First Amended Complaint (“FAC”) is somewhat unclear,

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it does appear that Plaintiff’s claims all arise from the termination

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of a housing subsidy and related administrative proceedings.

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Plaintiff allegedly entered the “Section 8” federal housing

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subsidy program on October 8, 2007, assertedly after a criminal

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background check which allegedly included Plaintiff’s “drug related

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history” (FAC, p. 8).

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2013, Defendant Vargas violated federal regulations and the Housing

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Authority’s administrative plan by assertedly failing to provide to

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Plaintiff a copy of Plaintiff’s criminal history information and to

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afford Plaintiff an opportunity to dispute the accuracy and relevancy

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of his criminal record prior to sending Plaintiff a Notice of

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Termination of his housing subsidy (id., p. 2).

Plaintiff alleges that, on or about July 12,

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Plaintiff allegedly received a “Notice of Intended Action” from

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Defendant Vargas, dated July 29, 2013, notifying Plaintiff that the

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Housing Authority intended to terminate Plaintiff’s housing subsidy on

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the grounds of drug-related activity and fraud (id.).

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allegedly requested a review of the evidence, reasonable accommodation

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and “consideration of mitigating factors” (id., pp. 6-7).

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August 7, 2013, Plaintiff requested an administrative hearing (id.).

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Plaintiff

On or about

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Plaintiff allegedly met with Vargas during the first week of

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August 2013 (id., p. 7).

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case against Plaintiff, assertedly stating that the evidence in that

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case “was compelling and upon conviction would terminate” Plaintiff’s

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housing subsidy (id.).

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with any police reports, criminal history reports, court documents,

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Housing Authority eligibility questionnaires or investigative reports,

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or with copies of federal regulations and the administrative plan

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(id.).1

Vargas allegedly referred to a pending drug

Vargas allegedly did not present Plaintiff

As a result, Plaintiff allegedly was surprised at the hearing

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by assertedly false allegations of his purported arrests and

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convictions (id., p. 4).

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Plaintiff’s housing subsidy because of a finding of fraud that was

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based on the allegedly false allegations of arrest and convictions

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(id., pp. 7-8).

A hearing officer assertedly terminated

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Defendants also allegedly failed to respond to Plaintiff’s

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purported request for reasonable accommodation of Plaintiff’s “drug

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addiction disability” prior to an administrative hearing and allegedly

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failed to forward the purported request “to the appropriate staff for

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full review and process according to the agency’s administrative plan

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prior, and during[,] the administrative hearing” (id., pp. 3-4).

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The Housing Authority allegedly violated federal regulations and

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its administrative plan by failing to “exclude” evidence which the Los

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Angeles County Superior Court assertedly found to have been withheld

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Allegedly, Plaintiff previously had authorized the
Housing Authority to obtain Plaintiff’s criminal record
information (id., pp 2-3).
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improperly from Plaintiff in the administrative proceedings (id., p.

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4).

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in a remand for a new administrative hearing (id., p. 14).

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allegedly filed a “Motion to Exclude Evidence” prior to the new

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administrative hearing on February 5, 2015, but the hearing officer at

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the second hearing assertedly denied the motion (id., p. 14).

Plaintiff allegedly filed a petition for mandamus which resulted
Plaintiff

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The First Amended Complaint alleges four claims for relief.
Claims I and II allege that Defendants violated due process by

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assertedly failing to notify Plaintiff concerning the criminal history

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information Defendants had obtained and by allegedly failing to afford

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Plaintiff and his family the opportunity to dispute the accuracy of

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Plaintiff’s criminal history record (id., pp. 5-8).

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assertedly resulted in the loss of Plaintiff’s housing subsidy after

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an allegedly unfair hearing (id.).

These actions

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Claim III purports to allege a Rehabilitation Act violation.

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Plaintiff alleges that, on July 25, 2013, Plaintiff provided Defendant

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Vargas with a request for reasonable accommodation and for

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consideration of mitigating circumstances related to Plaintiff’s

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purported “drug addiction disability” (id., p. 8).

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allegedly failed to forward the request to the “appropriate

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coordinator for process,” purportedly in violation of the Housing

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Authority’s administrative plan (id., p. 9).

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discriminated against Plaintiff, who supposedly had a “disability drug

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addiction with a history of addiction” (id., p. 10).

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Authority allegedly failed to acknowledge Plaintiff’s purported

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reasonable accommodation request after Plaintiff assertedly submitted
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Defendant Vargas

Vargas allegedly

The Housing

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the request to the hearing officer on March 26, 2015 (id.)

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In Claim IV, Plaintiff alleges that the Housing Authority

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violated due process, federal regulations and the administrative plan

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by failing to “exclude” evidence at the second administrative hearing

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(id., p. 11-14).2

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Plaintiff seeks compensatory damages and damages for emotional
distress and “Loss of Profits” (id., pp. 14-15).

Plaintiff also seeks

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punitive damages in the sum of $14 million and an injunction “to

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exclude evidence when the law provides its exclusion and the agency is

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found to have breach[ed] its duty to provide such discovery related

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evidence” (id.).

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STATE ADMINISTRATIVE AND JUDICIAL PROCEEDINGS

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The Court grants Defendants’ unopposed Request for Judicial

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Notice (“RJN”) of records of the administrative proceedings and court

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records.

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(9th Cir. 1988) (court may take judicial notice of court records);

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Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th

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Cir. 1986), abrogated on other grounds, Astoria Federal Savings & Loan

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Ass’n v. Solimino, 501 U.S. 104 (1991) (public records of

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administrative proceedings are properly the subject of judicial

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notice); Quintanilla v. Gates, 2004 WL 1661540 at *2 n.1 (C.D. Cal.

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2004) (taking judicial notice of court docket).

See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649

These records show

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Claim IV also contains allegations which are redundant
to those made in Claims I and II.
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the following:

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Background

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Plaintiff began receiving Section 8 benefits in 2002 (RJN 173,

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175).

On June 26, 2011, Plaintiff executed and verified an

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eligibility questionnaire in which Plaintiff answered “no” to the

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question whether he or anyone in his household had ever been convicted

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of a crime other than a traffic violation (RJN 110-18).

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On July 19, 2012, Plaintiff executed and verified an eligibility

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questionnaire in which Plaintiff answered “yes” in response to the

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question whether he or anyone in his household had ever been convicted

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of any crime other than a traffic violation, and indicated he had

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suffered a 1998 conviction for “automotive driving without permission”

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(RJN 100-08).

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On November 28, 2012, the State charged Plaintiff with a felony

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violation of California Health and Safety Code section 11352(a)

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(transportation, sale and furnishing of a controlled substance) (RJN

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9).

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On July 11, 2013, Defendant Vargas signed an “Investigative

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Report” alleging that Plaintiff had committed fraud by failing to

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disclose, on two eligibility questionnaires, Plaintiff’s three prior

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felony convictions and three prior misdemeanor convictions (RJN 69-

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70).

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had been filed charging Plaintiff with possession of a controlled

The Investigative Report also alleged that a criminal complaint

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substance for sale (RJN 69-70).

Also on July 11, 2013, the Housing

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Authority issued a “Notice of Intended Action,” signed by Defendant

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Vargas, indicating the Housing Authority had discovered evidence that

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Plaintiff or members of Plaintiff’s family had participated in drug-

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related criminal activity and had committed fraud in connection with a

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federal housing program (RJN 141).

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stated that if Plaintiff did not provide adequate proof that this

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information was incorrect, the Housing Authority would take action to

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terminate Plaintiff’s participation in the Section 8 program (id.).

The “Notice of Intended Action”

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On July 22, 2013, Plaintiff responded, denying that he had

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engaged in drug trafficking at his residence, stating that he had a

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drug problem and was in drug counseling, and enclosing documents (RJN

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142-62; FAC, Ex. F).

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On July 29, 2013, the Housing Authority served Plaintiff a

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“Notice of Intended Action and Right to Hearing” (FAC, Ex. C).

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Notice informed Plaintiff that the Housing Authority had determined

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that Plaintiff had participated in drug-related activity within the

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meaning of 24 C.F.R. section 982.553 and had committed fraud in

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connection with a federal housing program in violation of 24 C.F.R.

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section 982.551 (id.)

The

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On October 28, 2013, Plaintiff pled nolo contendere to a

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violation of California Health and Safety Code section 11352(a) (RJN

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16-17).

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The First Administrative Hearing and Decision

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On November 21, 2013, a hearing was held before Hearing Officer

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Andre Brown (RJN 164-93).

The Housing Authority investigator

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submitted, among other things, a copy of: (1) a 2013 criminal

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complaint filed in the Los Angeles County Superior Court charging

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Plaintiff with felony possession of a controlled substance for sale;

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and (2) Plaintiff’s criminal history report allegedly showing

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Plaintiff had suffered three felony convictions and three misdemeanor

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convictions which Plaintiff assertedly had not disclosed to the

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Housing Authority (RJN 167-72).

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At the hearing, Plaintiff acknowledged that he had been convicted

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in the 2013 drug case and said he had received “a drug program”

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sentence (RJN 184).

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the eligibility questionnaire concerning his criminal history sought

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information only for convictions suffered during the current year (RJN

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176, 185).

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questionnaire Plaintiff had disclosed a conviction for driving without

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the owner’s consent in 1998 or 1999, but still insisted he had not

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read the eligibility questionnaire “thoroughly” and had assumed it

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required disclosure only of “current activities” (RJN 183, 186-87).

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When the investigator pointed out that the eligibility form asked if

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Plaintiff “ever” had been convicted of a crime, Plaintiff said “it

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must have been a little vague to me and I just misunderstood it” (RJN

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193).

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Plaintiff argued that he thought the question on

Plaintiff acknowledged, however, that in the 2012

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Plaintiff also said some of the arrest information arose out of a

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domestic situation in 2011 and 2012 as to which Plaintiff assertedly

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had obtained a restraining order (RJN 176).

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“last incident” (i.e. the 2013 drug charge) was “something that

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happened” and was a “mistake” (RJN 176).

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given drugs to an undercover agent and that this was something in

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which Plaintiff should not have gotten involved, but claimed that the

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drug transaction had not occurred at Plaintiff’s residence (id.).

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Plaintiff disclosed that he had been undergoing drug counseling and

Plaintiff said that the

Plaintiff admitted he had

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treatment and Plaintiff submitted related documentation (RJN 177-78,

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188-89).

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and apologized for his past drug use (RJN 191).

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hearing officer to take into consideration Plaintiff’s alleged

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attempts to take care of his family and to “move forward” (RJN 190).

Plaintiff acknowledged that he had “made some bad choices”
Plaintiff asked the

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On January 3, 2014, the Hearing Officer issued a decision

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upholding the termination of Plaintiff’s Section 8 benefits, ruling

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that the evidence was sufficient to support the allegations that

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Plaintiff had failed to disclose his criminal arrests and convictions

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and had engaged in drug-related criminal activity (see RJN 255).

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The First Administrative Mandamus Proceeding

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On April 30, 2014, Plaintiff filed a petition for administrative

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mandamus in the Los Angeles County Superior Court, in case number

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BS147769 (see Docket in Moore v. Housing Authority of the City of Los

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Angeles, Los Angeles Superior Court case number BS147769).3

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The Superior Court issued a tentative decision denying the

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petition (RJN 255-65).

The Superior Court held a hearing on

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October 28, 2014 (see “Reporter’s Transcript on Appeal October 28,

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2014,” attached to Defendants’ “Notice of Lodgment Transcript, etc.”

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filed November 5, 2015 [“October 28, 2014 R.T.”]).

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Plaintiff argued that federal regulations required the agency to

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provide Plaintiff with a copy of his criminal record prior to the

At the hearing,

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hearing (id. at 4-5).

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any remedy merely would be a remand for a new hearing (id. at 8-9).

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Plaintiff agreed the issue probably was a “technicality” (id. at 9).

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The Housing Authority investigator pointed out that Plaintiff had

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admitted the 2013 drug conviction (id. at 10, 12).

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would remand for a new hearing, even though the court did not see how

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another hearing would yield a different outcome (id. at 13-15).

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court did not adopt its merits tentative (id. at 15).

The Superior Court agreed, but pointed out that

The court said it

The

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Plaintiff appealed (see Docket in Moore v. Housing Authority of

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the City of Los Angeles, California Court of Appeal (2d District) case

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The Court takes judicial notice of the dockets of
Plaintiff’s two administrative mandamus actions in the Los
Angeles County Superior Court, available on the Los Angeles
County Superior Court’s website at http://www.lacourt.org. See
Mir v. Little Company of Mary Hosp., 844 F.2d at 649.
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number B261142).4

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appeal on the Housing Authority’s unopposed motion (id.).

On April 2, 2015, the Court of Appeal dismissed the

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The Second Administrative Hearing and Decision

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On April 10, 2015, a hearing occurred before Hearing Officer Dale

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Nowicki (RJN 194-254).5

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discovery-related evidence” and all testimony and documents presented

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at the previous hearing on the ground that the Housing Authority had

Plaintiff submitted a motion to exclude “all

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failed to disclose Plaintiff’s criminal history record prior to the

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first hearing, allegedly in violation of 24 C.F.R. section

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982.555(e)(2)(i) (RJN 48-55).

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denied the motion to exclude the evidence (RJN 197-98, 201-03).

At the hearing, Hearing Officer Nowicki

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On the merits, Plaintiff argued that, because Plaintiff had

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consented to the release of his criminal history information to the

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Housing Authority when he entered the Section 8 program, the agency

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must have been aware of Plaintiff’s criminal record, so Plaintiff

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purportedly was not required to disclose his convictions on the

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eligibility questionnaire (RJN 213-14, 221).

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had suffered three prior felony convictions and three prior

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misdemeanor convictions, but claimed he could not recall his criminal

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history at the time he filled out the eligibility questionnaire except

Plaintiff admitted he

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4

The Court takes judicial notice of the docket in
California Court of Appeal (2d District) case number B261142,
available on the California courts’ website at www.courts.ca.gov.
See Mir v. Little Company of Mary Hosp., 844 F.2d at 649.

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Plaintiff had moved to disqualify Hearing Officer Brown
(RJN 38-41).
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for the most recent incident (RJN 220-22).

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(1) Plaintiff’s criminal history prior to the 2013 drug conviction

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incident was “obsolete” and irrelevant; (2) Plaintiff’s criminal

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history was “damaging” and Plaintiff should have sought expungement;

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and (3) Plaintiff supposedly had not intended the inaccuracies (RJN

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218-20, 239-41).

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incident that did not occur at Plaintiff’s residence, and that

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Plaintiff “served a year in a drug program” (RJN 228).

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submitted letters concerning his alleged progress in drug treatment

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Plaintiff also stated:

Plaintiff said the 2013 conviction arose out an

Plaintiff

programs (RJN 230).

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On April 10, 2015, the Hearing Officer issued an Amended Notice

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of Decision: (1) denying Plaintiff’s motion to exclude evidence as

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moot because Plaintiff had received the Housing Authority’s discovery;

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and (2) upholding the Housing Authority’s proposal to terminate

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Plaintiff’s Section 8 housing assistance, based on findings that

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Plaintiff had engaged in drug-related activity while a program

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participant and had committed fraud by failing to list all of his

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criminal convictions on the eligibility questionnaires (RJN 1-6).

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The Second Administrative Mandamus Proceeding

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On June 15, 2015, Plaintiff filed another petition for writ of

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administrative mandamus in the Los Angeles County Superior Court, in

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case number BS156088 (RJN 266-320).

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docket, that petition is still pending, and a hearing presently is

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scheduled for March 22, 2016.

28

///
17

According to the Superior Court’s

1

DEFENDANTS’ CONTENTIONS

2
3

Defendants contend, inter alia:

4
5
6

1.

The action allegedly is barred by the “Rooker-Feldman”

doctrine;6

7
8

2.

Plaintiff’s Rehabilitation Act claim allegedly fails because

9

Plaintiff assertedly did not request reasonable accommodation from the

10

Housing Authority; and, in any event, Plaintiff’s alleged addiction to

11

illegal narcotics allegedly was not a disability requiring reasonable

12

accommodation;

13
14
15

3.

Section 1983 allegedly provides no remedy for violations of

federal regulations;

16
17

4.

Plaintiff allegedly received due process; and

5.

The decision to terminate Plaintiff’s Section 8 subsidy

18
19
20

allegedly was “substantively correct.”

21

///

22

///

23

///

24

///

25

///

26
27
28

6

See District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923).
18

1

DISCUSSION

2
3

I.

The Rooker-Feldman Doctrine Does Not Apply.

4
5

Under the “Rooker-Feldman” doctrine, a federal district court

6

lacks subject matter jurisdiction to review state court decisions.

7

See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

8

476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

9

proper court in which to obtain such review is the United States

The

10

Supreme Court, by petition for writ of certiorari.

11

Columbia Court of Appeals v. Feldman, 460 U.S. at 476; 28 U.S.C. §

12

1257.

13

complaining of injuries caused by state-court judgments rendered

14

before the district court proceedings commenced and inviting district

15

court review and rejection of those judgments.”

16

Saudi Basic Industries, Inc., 544 U.S. 280, 294 (2005).

17

facto appeals’ barred by Rooker-Feldman are those in which ‘a federal

18

plaintiff asserts as a legal wrong an allegedly erroneous decision by

19

a state court.’"

20

2013) (citation omitted; emphasis deleted).

21

federal plaintiff asserts as a legal wrong an allegedly illegal act or

22

omission by an adverse party, Rooker-Feldman does not bar

23

jurisdiction.’”

24

the actions of Defendants, not the actions of the Superior Court.

District of

Rooker-Feldman applies to “cases brought by state-court losers

Exxon Mobil Corp. v.
“[T]he ‘de

Vasquez v. Rackauckas, 734 F.3d 1025, 1036 (9th Cir.

Id. (citation omitted).

“In contrast, if ‘a

Here, Plaintiff challenges

25
26

Furthermore, in this Circuit “[p]roceedings end for Rooker-

27

Feldman purposes when the state courts finally resolve the issue that

28

the federal court plaintiff seeks to relitigate in a federal forum,
19

1

even if other issues remain pending at the state level.”

Mothershed

2

v. Justices of Supreme Court, 410 F.3d 602, 604 n.1 (9th Cir. 2005).

3

Here, the only state court judgment now existing is the Superior

4

Court’s judgment of remand, which did not “resolve the issues”

5

presented in the instant action.

6

apply.

Accordingly, Rooker-Feldman does not

7
8

II.

9

Plaintiff Cannot Maintain Section 1983 Claims for Alleged
Violations of Federal Regulations or the Administrative Plan.

10
11

Plaintiff’s section 1983 claims based on alleged violations of

12

federal regulations and the Housing Authority’s related administrative

13

plan must be dismissed without leave to amend and with prejudice.

14

Section 1983 does not provide a remedy for alleged violations of

15

federal regulations.

16

932, 939-44 (9th Cir. 2003) (federal agency regulations not

17

enforceable pursuant to section 1983); Nozzi v. Housing Authority of

18

City of Los Angeles, 425 Fed. App’x 539, 543 (9th Cir. 2011) (Section

19

8 regulations not enforceable pursuant to section 1983).

20

the claims for alleged violations of federal regulations or the

21

Housing Authority’s administrative plan contained in Claims I, III and

22

IV must be dismissed without leave to amend and with prejudice.

23

///

24

///

25

///

26

///

27

///

28

///

See Save Our Valley v. Sound Transit, 335 F.3d

20

Therefore,

1

III. Plaintiff Has Not Alleged, and Cannot Allege, a Cognizable

2

Rehabilitation Act Claim.

3
4

A.

Background

5
6

In the First Amended Complaint, Plaintiff alleges that he mailed

7

to Defendants on July 25, 2013, a letter and documents requesting a

8

reasonable accommodation (FAC, pp. 6-7).

9

pleading a letter which Plaintiff alleges constituted a request for

Plaintiff attaches to the

10

accommodation and other documents, including a letter from a counselor

11

for a program through which Plaintiff allegedly received alcohol, drug

12

and parental skills counseling, a Los Angeles Dependency Court Case

13

Plan, and a drug testing document allegedly prepared for the

14

Department of Children and Family Services (FAC, p. 8; Exs. F, G, H,

15

I).

16
17

In the referenced letter addressed to the Housing Authority and

18

dated “July 22, 1013” [sic], Plaintiff stated that he purportedly had

19

not used his home for drug trafficking, acknowledged Plaintiff’s drug

20

problem, and said he had undergone counseling and drug testing (FAC,

21

Ex. F).

22

relationship” with a female for his drug problem, and that Plaintiff

23

was willing to “get help and have testing done” to show that Plaintiff

24

was “clean” and making changes to his life (id.).

25

concluded: “Please reconsider and grant my status in keeping my

26

housing so that I can provide Housing for me and my family and I vow

27

not to ever to have [sic] this come back again in my life.” (id.).

28

///

The letter stated that Plaintiff blamed himself and a “bad

21

The letter

1

In his Opposition, Plaintiff alleges that Housing Authority’s

2

administrative plan provided that a request for reasonable

3

accommodation be referred to the Director of Planning and

4

Accessibility Coordinator for a final determination, and provided for

5

a two-tier grievance system in the event the request was denied

6

(Opposition, p. 5).

7

these procedures.

According to Plaintiff, Defendants did not follow

8
9

B.

Discussion

10
11

The Rehabilitation Act provides

12
13

No otherwise qualified individual with a disability in

14

the United States, as defined in section 705(20) of this

15

title, shall, solely by reason of her or his disability, be

16

excluded from the participation in, be denied the benefits

17

of, or be subjected to discrimination under any program or

18

activity receiving Federal financial assistance or under any

19

program or activity conducted by any Executive agency or by

20

the United States Postal Service.

21
22

29 U.S.C. § 794(a).

23
24

“A plaintiff bringing suit under § 504 must show (1) he is an

25

individual with a disability; (2) he is otherwise qualified to receive

26

the benefit; (3) he was denied the benefits of the program solely by

27

reason of his disability; and (4) the program receives federal

28

financial assistance.”

Duvall v. County of Kitsap, 260 F.3d 1124,
22

1

1135 (9th Cir. 2001) (citation omitted).

“A failure to provide

2

reasonable accommodation can constitute discrimination under section

3

504 of the Rehabilitation Act.”

4

(9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003).

5

discrimination based on failure reasonably to accommodate, Plaintiff

6

must show that: (1) he suffers from a disability as defined by the

7

Rehabilitation Act; (2) Defendants knew or reasonably should have

8

known of Plaintiff’s disability; (3) accommodation of the disability

9

may be necessary to afford Plaintiff an equal opportunity to use and

Vinson v. Thomas, 288 F.3d 1145, 1154
To show

10

enjoy his dwelling; and (4) Defendants refused to make a reasonable

11

accommodation.

12

(9th Cir. 2003).

13

Plaintiff “must show that, but for the accommodation, [Plaintiff]

14

likely will be denied an equal opportunity to enjoy the housing of

15

[his] choice.”

16

brackets added).7

17

policy and the plaintiff’s injury, there can be no obligation on the

18

part of defendants to make a reasonable accommodation.”

19

and internal quotations omitted).

20

“when it imposes no fundamental alteration in the nature of the

21

program or undue financial or administrative burdens.”

22

and internal quotations omitted).

23

///

See Giebeler v. M & B Associates, 343 F.3d 1143, 1147
To demonstrate that an accommodation is necessary,

Id. at 1155 (citation and internal quotations omitted;
“Without a causal link between the defendants’

Id. (citation

An accommodation is reasonable

Id. (citation

24
25
26
27
28

7

Although Giebeler was a disability discrimination case
brought pursuant to the federal Fair Housing Amendments Act, 42
U.S.C. section 3601 et seq. (“FHAA”), the reasonable
accommodation standards applicable in FHAA cases and in
Rehabilitation Act cases are essentially the same. Giebeler v. M
& B. Associates, 343 F.3d at 1149.
23

1

Defendants contend the record does not show that Plaintiff made

2

any request for accommodation for a “recognized disability.”

3

“individual with a disability” as used in the Rehabilitation Act does

4

not include an individual who is currently engaging in the illegal use

5

of drugs.

6

not exclude individuals who have successfully completed, or are

7

participating in, a supervised drug rehabilitation program and are no

8

longer engaging in the illegal use of drugs, or who have otherwise

9

been rehabilitated successfully and are not using drugs.

29 U.S.C. § 705(20)(C)(i).

The term

However, this provision does

29 U.S.C. §

10

705(20)(C)(ii).

Plaintiff’s allegations, taken as true for purposes

11

of the Motion to Dismiss, suffice to plead that Plaintiff was an

12

individual with a disability within the meaning of the Rehabilitation

13

Act.

14
15

Plaintiff’s Rehabilitation Act claim fails for other reasons,

16

however.

Plaintiff’s July 22, 2013 letter did not request any alleged

17

“accommodation” other than reinstatement of Plaintiff’s Section 8

18

housing benefits.

19

request for accommodation in the form of a reversal of the termination

20

decision, Plaintiff has not alleged a cognizable Rehabilitation Act

21

violation.

22

the termination of benefits based on Plaintiff’s alleged drug

23

addiction.

24

engaged in drug-related activity (i.e., a drug sale which Plaintiff

25

admitted at the hearing) while a program participant and that

26

Plaintiff had committed fraud by failing to list all of his criminal

27

convictions on the eligibility questionnaires.

28

personal drug addiction was not the basis for the decision.

Even assuming arguendo the letter constituted a

At the second hearing, the hearing officer did not uphold

Rather, the Hearing Officer found that Plaintiff had

24

Plaintiff’s alleged

1

Regardless of any potential accommodation of Plaintiff’s purported

2

disability, Plaintiff’s drug conviction and fraud rendered Plaintiff

3

ineligible to retain his Section 8 benefits.

4

no “causal link” between Defendants’ alleged policy and Plaintiff’s

5

alleged injury.

Accordingly, there was

See Giebeler v. M & B Associates, 343 F.3d at 1155.

6
7

Furthermore, the allegedly requested accommodation seeking

8

reinstatement of Plaintiff’s Section 8 housing benefits was clearly

9

unreasonable.

Such accommodation would have required the agency to

10

violate federal law and regulations by according Section 8 benefits to

11

an individual who was not eligible to receive those benefits by reason

12

of his drug-related activity and fraud.

13

of Portland, 2015 WL 758991, at *6 (D. Or. Feb. 23, 2015)

14

(“Plaintiff’s requested accommodation is patently unreasonable because

15

if granted, it would violate federal regulations.”) (citations

16

omitted).

See Doe v. Housing Authority

17
18

For the foregoing reasons, Plaintiff has not alleged, and cannot

19

allege, a cognizable reasonable accommodation claim based on his

20

alleged drug addiction.

21

claim must be dismissed without leave to amend and with prejudice.

Accordingly, Plaintiff’s Rehabilitation Act

22
23
24

IV.

The First Amended Complaint Does Not Plead Any Cognizable Due
Process Violation.

25
26

An individual receiving Section 8 benefits has a due process

27

protected property interest in those benefits.

28

F.2d 1212, 1215-16 (9th Cir. 1982) (Section 8 applicant); Bezi v.
25

Ressler v. Pierce, 692

1

Camacho, 2012 WL 5519386, at *8

(C.D. Cal. Sept. 27, 2012), adopted,

2

2012 WL 5512558 (C.D. Cal. Nov. 7, 2012) (individual facing

3

termination of Section 8 benefits).

4

Clause requires “that deprivation of life, liberty or property by

5

adjudication be preceded by notice and opportunity for hearing

6

appropriate to the nature of the case.”

7

Bank & Trust Co., 339 U.S. 306, 313 (1950).

At a minimum, the Due Process

Mullane v. Central Hanover

8
9

In Claims I and II, Plaintiff asserts that Defendants violated

10

Due Process by allegedly failing to provide pre-hearing discovery to

11

Plaintiff prior to the first administrative hearing.

12

lack merit as a matter of law.

13

pretrial discovery in administrative proceedings.”

14

States Environmental Protection Agency, 203 F.3d 519, 523 (7th Cir.

15

2000) (citation omitted); accord, Banister v. U.S. Dep’t of the

16

Treasury, 2011 WL 7109220, at *4 (N.D. Cal. Mar. 10, 2011), aff’d, 499

17

Fed. App’x 668 (9th Cir. 2012); Clancy v. Office of Foreign Assets

18

Control of U.S. Dep’t of Treasury, 2007 WL 1051767, at *7 (E.D. Wis.

19

Mar. 31, 2007), aff’d, 559 F.3d 595 (7th Cir. 2009); Weinberg v.

20

Commodity Futures Trading Comm’n, 699 F. Supp. 808, 813 (C.D. Cal.

21

1988), aff’d, 884 F. 2d 1396 (9th Cir. 1989) (unpublished).

22

the Due Process Clause does not require a PHA such as the Housing

23

Authority sua sponte to provide a recipient of Section 8 housing

24

benefits with documents reflecting that persons’s own criminal record.

25

Cf. United States v. Agurs, 427 U.S. 97, 103 (1976) (rule of Brady v.

26

Maryland, 373 U.S. 83 (1963), requiring prosecution’s disclosure, in a

27

criminal case, of evidence favorable to defense, only applies to

28

evidence “known to the prosecution but unknown to the defense”).

These claims

“[T]here is no constitutional right to

26

Kelly v. United

Moreover,

1

Furthermore, to the extent Plaintiff alleges that Defendants

2

violated federal regulations by failing to provide Plaintiff with a

3

copy of his criminal record prior to the first administrative hearing,

4

Plaintiff received due process because Plaintiff received an adequate

5

remedy in the form of an administrative mandamus proceeding and a

6

remand for a new hearing.

7

488-82 (9th Cir. 1991) (where deprivation of plaintiff’s worker’s

8

compensation benefits was due to unauthorized act of a government

9

official in violation of agency procedures, and subsequently a hearing

See Raditch v. United States, 929 F.2d 478,

10

officer recognized the error, vacated the termination order and

11

remanded for a de novo termination of plaintiff’s status, plaintiff

12

received all the process he was due).

13
14

The Due Process violation alleged in Claim IV also is

15

insufficient as a matter of law.

16

right to constitutional discovery in administrative proceedings.

17

follows that nothing in the Constitution requires an administrative

18

hearing officer to exclude evidence as a discovery sanction.

As indicated above, there is no
It

19
20

For the foregoing reasons, the Due Process claims alleged in

21

Claims I, II and IV must be dismissed without leave to amend and with

22

prejudice.

23
24

CONCLUSION

25
26

A court “considers five factors in assessing the propriety of

27

leave to amend - bad faith, undue delay, prejudice to the opposing

28

party, futility of amendment, and whether the plaintiff has previously
27

1

amended the complaint.”

United States v. Corinthian Colleges, 655

2

F.3d 984, 995 (9th Cir. 2011) (citation omitted).

3

amendment alone can justify dismissal without leave to amend.

4

United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048,

5

1052 (9th Cir. 2001).

6

any amendment would be futile.

7

the First Amended Complaint and the action without leave to amend and

8

with prejudice.8

Futility of
See

Here, as the foregoing discussion demonstrates,
Accordingly, the Court should dismiss

9
10

RECOMMENDATION

11
12

For the foregoing reasons, IT IS RECOMMENDED that the Court issue

13

an order: (1) accepting and adopting this Report and Recommendation;

14

(2) granting Defendants’ Motion to Dismiss; and (3) dismissing the

15

First Amended Complaint and the action without leave to amend and with

16

prejudice.

17
18

DATED:

December 21, 2015.

19
20

/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28

8

In view of this recommended disposition, the Court need
not and does not determine whether res judicata or collateral
estoppel bars Plaintiff’s claims.
28

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

No notice of appeal pursuant to the