Binns v. City of Marietta Housing Choice Voucher Program

Filing 5

ORDER granting Plaintiff's 4 Motion to Amend the Complaint. Plaintiff's claims are ALLOWED TO PROCEED. The Clerk of Court is DIRECTED to send Plaintiff a USM 285 form, summons, and initial disclosures for the City of Marietta Housing Aut hority. Plaintiff is DIRECTED to complete the USM 285 form, summons, and initial disclosures form for the City of Marietta Housing Authority and to return them to the Clerk within twenty (20) days of the entry date of this Order. Plaintiff is warned that failure to comply in a timely manner could result in the dismissal of this civil action. The Clerk is DIRECTED to resubmit to the undersigned if Plaintiff fails to comply. Plaintiff is DIRECTED to serve upon Defendant or its counsel a copy of e very additional pleading or other document filed with the Clerk. Plaintiff is also DIRECTED to keep the Court and Defendant advised of her current address at all times while this action is pending. The Court admonishes Plaintiff that failure to do so may result in the dismissal of this action. Signed by Judge Richard W. Story on 3/19/2014. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DOROTHY BINNS,
Plaintiff,
v.
CITY OF MARIETTA HOUSING
CHOICE VOUCHER PROGRAM,
Defendant.

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CIVIL ACTION NO.
1:13-CV-01637-RWS

ORDER
Plaintiff Dorothy Binns, pro se, filed this action on May 14, 2013, and on
May 16, 2013, Magistrate Judge Walter E. Johnson entered an order granting
Plaintiff’s Motion to Proceed in forma pauperis. On November 29, 2013,
Plaintiff filed a Motion to Amend the Complaint [4]. This case is presently
before this Court for a frivolity determination pursuant to 28 U.S.C. §
1915(e)(2)(B).
I.

Background
This case concerns the distribution of benefits under the federal

government’s Housing Choice Voucher Program pursuant to Section 8 of the
Fair Housing Act (“FHA”). 42 U.S.C. §§ 3601-3619. The Section 8 program

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increases affordable housing choices for low-income households by allowing
qualified families to choose privately owned rental housing with the help of
vouchers from local public housing authorities (“PHA”) to subsidize their
monthly rent payment. 24 C.F.R. § 982.1(a).
In a previous lawsuit against the City of Marietta Housing Authority,
Plaintiff sought to reverse the PHA’s original decision to deny her Section 8
benefits. See generally Binns v. City of Marietta Housing Authority, No. 1:07CV-0070-RWS, 2010 WL 1138453 (N.D. Ga. Mar. 22, 2010). After settling her
previous case and thereby obtaining Section 8 benefits, Plaintiff now alleges
that Defendant discriminated and retaliated against her by denying her request
for an extra bedroom to accommodate a live-in aide. (See generally Pl. Am.
Compl., Dkt. [4]).
Plaintiff is disabled as a result of her rheumatoid arthritis. She asked the
Marietta Housing Authority to approve a live-in aide to care for her pursuant to
24 C.F.R. § 982.316, under which a disabled recipient of housing subsidies may
request approval of a live-in aide to “provide necessary supportive services.”
(Pl. Am. Compl., Dkt. [4] ¶¶ 7, 9, 11). While the Marietta Housing Authority
apparently approved a live-in aide, it denied Plaintiff an extra bedroom to
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accommodate the aide. (Id. ¶ 15.) Plaintiff alleges that the denial violated the
Fourteenth Amendment of the United States Constitution, the Fair Housing Act,
42 U.S.C. § 3601 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and
the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.
II.

Frivolity Review Standard
A federal court is required to dismiss an in forma pauperis complaint at

any time if the court determines that the action: (1) is frivolous or malicious; (2)
fails to state a claim on which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B). Generally, a claim is frivolous when it appears from the face of
the complaint that the factual allegations are “clearly baseless” or the “legal
theories indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.
1993), cert. denied, 510 U.S. 893 (1993). “[A] finding of factual frivolousness
is appropriate when the facts alleged rise to the level of the irrational or the
wholly incredible, whether or not there are judicially noticeable facts available
to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). However,
the court may not dismiss an in forma pauperis complaint “simply because the

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court finds the plaintiff’s allegations unlikely.” Id. Further, pro se complaints
are liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Finally, because Defendant has not yet been served, Plaintiff’s Motion to
Amend the Complaint [4] is GRANTED pursuant to Federal Rule of Civil
Procedure 15. See FED. R. CIV. P. 15(a)(1) (“A party may amend its pleading
once as a matter of course within: (A) 21 days after serving it . . . .”). Therefore,
the Court examines the Amended Complaint to conduct its frivolity
determination.
III. Analysis
The Court first considers Plaintiff’s disability discrimination claim. The
FHA makes it unlawful to “make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national origin.” 42
U.S.C. § 3604(a). It also prohibits discrimination against any buyer or renter
because of a handicap of that buyer or renter. Id. § 3604(f). Under the Act,
“discrimination” includes “a refusal to make reasonable accommodations in
rules, policies, practices, or services” for a disabled person “when such
accommodations may be necessary to afford such person equal opportunity to
use and enjoy a dwelling.” Id. § 3604(f)(3)(B).
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Under 24 C.F.R. § 982.402, a PHA must establish subsidy standards to
determine the appropriate number of bedrooms for which a family of a given
size (also known as “family-unit size”) will receive a voucher. If someone
requires a live-in aide, the aide is counted in determining family-unit size. Id. §
982.402(b)(6) (“any live-in aide . . . must be counted in determining family unit
size”).
Construing the Amended Complaint liberally at this early stage of the
proceedings, the Court finds that Plaintiff’s claim of discrimination under the
FHA is not frivolous. Plaintiff alleges that she made requests for the
accommodation of a live-in aide, which she needed due to her disability. (Pl.
Am. Compl., Dkt. [4] ¶¶ 15-17). While Defendant granted the live-in aide
request, Plaintiff further states that Defendant did not change her family-unit
size and denied her requests for an exception to the minimum rent requirement.
Id. (PHA told Plaintiff after granting request that her “certified bedroom size
will not change with the addition of the aid[e].”) Plaintiff alleges that
Defendant’s denial of an extra bedroom for the live-in aide amounts to a failure
to provide a reasonable accommodation for her disability. The Court finds that
these allegations raise an arguable claim of discrimination.
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In light of the relevant standard for frivolity, at this early stage Plaintiff
has stated a non-frivolous claim for discrimination under the FHA. Because
Plaintiff has at least one non-frivolous claim, the Court concludes—without
assessing the viability of any other claims—that Plaintiff’s suit should be
allowed to proceed like any other case.
IV.

Conclusion
Based on the foregoing, Plaintiff’s Motion to Amend the Complaint [4] is

GRANTED, and Plaintiff’s claims are ALLOWED TO PROCEED. The
Clerk of Court is DIRECTED to send Plaintiff a USM 285 form, summons,
and initial disclosures for the City of Marietta Housing Authority. Plaintiff is
DIRECTED to complete the USM 285 form, summons, and initial disclosures
form for the City of Marietta Housing Authority and to return them to the Clerk
within twenty (20) days of the entry date of this Order. Plaintiff is warned that
failure to comply in a timely manner could result in the dismissal of this civil
action. The Clerk is DIRECTED to resubmit to the undersigned if Plaintiff
fails to comply.
Upon receipt of the forms, the Clerk is also DIRECTED to prepare and
transmit to the U.S. Marshals Service a service package for service upon the
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City of Marietta Housing Authority as set forth in Federal Rule of Civil
Procedure 4(j)(2).1 Each service package must include the appropriate USM 285
form, the summons, and a copy of the Complaint. Upon the receipt of such
package, the U.S. Marshals Service is DIRECTED to serve the aforementioned
parties in accordance with the requirements of Federal Rule of Civil Procedure
4(j)(2).
Plaintiff is DIRECTED to serve upon Defendant or its counsel a copy of
every additional pleading or other document filed with the Clerk. Each pleading
or other document filed with the Clerk shall include a certificate stating the date
on which an accurate copy of that paper was mailed to Defendant or its counsel.
The Court will disregard any submitted papers that have not been properly filed
with the Clerk or that do not include a certificate of service.
Plaintiff is also DIRECTED to keep the Court and Defendant advised of
her current address at all times while this action is pending. The Court
admonishes Plaintiff that failure to do so may result in the dismissal of this
action.
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A service waiver package is not appropriate in this case because
Defendant is a division of local government. See Fed. R. Civ. P. 4(d)(1)
(specifying types of defendants eligible to waive service).
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SO ORDERED, this 19th

day of March, 2014.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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