Jones v. Public Housing Agency of the City of Saint Paul

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS 8 . IT IS HEREBY ORDERED that Plaintiff's Motion for Emergency Injunctive Relief 8 is DENIED. (Written Opinion). Signed by Judge Michael J. Davis on 3/29/2018. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

TASHAWNA JONES,

CIVIL NO. 17-5448 (MJD/DTS)

Plaintiff,
v.

ORDER

PUBLIC HOUSING AGENCY
OF THE CITY OF SAINT PAUL,
Defendant.

Heather Meyers, Southern Minnesota Regional Legal Services, Counsel for
Plaintiff.
Sean Dillon Whatley, St. Paul Assistant City Attorney, Counsel for
Defendant.
_______________________________________________________________________
I.

Introduction
The above matter comes before the Court upon the Report and

Recommendation of United States Magistrate Judge David T. Schultz dated
February 27, 2018. Plaintiff objects to the recommendation that the Court deny
her motion for a temporary restraining order, arguing the Magistrate Judge
applied the wrong standard in determining the likelihood of success on the
merits of her claim of lack of due process. Plaintiff further objects to the

Magistrate Judge’s finding that she failed to show irreparable harm, because
Plaintiff failed to show she was being evicted. Plaintiff claims at this time that
she still has not found a job, it is unclear how long her landlord would delay
filing an eviction notice, and she currently does not have sufficient income to pay
rent.
Pursuant to statute, the Court has conducted a de novo review of the
record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court will ADOPT the Report and Recommendation in its entirety.
II.

Discussion
A. Background
Plaintiff does not object to the Magistrate Judge’s findings of fact, and the

Court adopts those findings as its own. Briefly, Plaintiff was notified by letter
received on August 21, 2017, that her Section 8 assistance would be terminated
effective September 30, 2017 because she failed to report her receipt of child
support income from 2014 through June 2017. (Comp. Ex. 1.) The letter set forth
the bases for this decision, and provided her until August 27, 2017 to request an
informal hearing to challenge the termination of her benefits. (Id.)

In the envelope with the termination letter was a letter informing her that
she owed PHA $668 in overpayments, and a third document that was a proposed
Section 8 Repayment Agreement. (Id., Exs. 2 and 3.)
The second letter informed Plaintiff of a balance due because of the child
support payments that had not been reported and explained that the balance
represented a retroactive adjustment to what her rent portion should have been
from June 2014 through June 2017. (Id., Ex. 2.) The letter informed Plaintiff of
the options available for repayment, and warned that if she did not pay the
balance or enter into a Repayment Agreement, her Section 8 assistance could be
terminated. (Id.)
Plaintiff signed the Repayment Agreement, and sent in a monthly
payment. (Id. Exs. 3 and 4.) Plaintiff mistakenly believed that if she met her
repayment obligations, her Section 8 assistance would continue. (Id. Ex. 5.) She
therefore did not request an informal hearing within the time allowed to
challenge the termination. Plaintiff’s Section 8 assistance was terminated on
September 30, 2017.
After her Section 8 assistance was terminated, Plaintiff continued to pay
her rentn from her wages. (Plaintiff Aff. ¶ 3.) However, on February 6, 2018,

Plaintiff lost her job, and thereafter filed this motion for temporary injunctive
relief, seeking an order enjoining Defendant from refusing to reinstate her
Section 8 assistance 1.
B. Motion for Preliminary Injunctive Relief
To be entitled to preliminary injunctive relief, Plaintiff must establish she
will suffer irreparable harm if the requested relief is not granted, a likelihood of
success on the merits, the balance of harms weighs in her favor and that the
public interest supports her request. Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 113 (8th Cir. 1981).
To demonstrate irreparable harm, the movant is required to “show that
the harm is certain and great and of such imminence that there is a clear and
present need for equitable relief.” Iowa Util. Bd. v. F.C.C., 109 F.3d 418, 425 (8th
Cir. 1996). Under this strict standard, the Court finds that Plaintiff has not
demonstrated that her eviction is certain. In fact, in her objection, Plaintiff asserts
“[i]t is not certain whether or for how long her landlord will delay filing an

In her motion, Plaintiff also requested the Court enjoin Defendant from terminating her
Section 8 assistance without affording her an adequate and timely notice or an opportunity for a
pre-termination hearing. Defendant has already terminated her Section 8 assistance, however,
therefore the Court cannot enjoin what has already taken place.
1

eviction action.” (Plaintiff Obj. at 5.) Accordingly, the Court finds that Plaintiff
has not met her burden of demonstrating irreparable harm.
As to the likelihood of success on the merits factor, Plaintiff claims that the
Magistrate Judge applied the wrong standard. The Magistrate Judge found that
Defendant had provided Plaintiff sufficient due process because it had provided
her written notice of the termination of her Section 8 housing benefits as required
by 24 CFR § 982.555(c)(2).
Plaintiff argues it is not enough to show compliance with statutory notice
requirements. Instead, ‘[a]n elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
Plaintiff thus argues that the Court must consider not only the contents of the
termination letter, but the letters and notices provided with the termination
letter. See Mayhew v. Cohen, 604 F. Supp. 850 (D. Pa. 1984); Walters v. Reno, 145
F.3d 1032 (9th Cir. 1998).

Plaintiff argues that the language of the termination letter, which she does
not dispute provides notice of the basis of the termination and an opportunity to
challenge the termination, is drowned out by the two documents that
accompanied the termination letter. She argues that because Defendant did not
provide a termination notice that was reasonably calculated to inform her that it
was offering a repayment agreement and that it was terminating her Section 8
assistance, there is a reasonable probability that she will succeed on her due
process claim. The Magistrate Judge acknowledged Plaintiff’s confusion caused
by the multiple letters, noted the confusion may be sincere, but found that it did
not render the otherwise adequate Notice constitutionally deficient.
Defendant argues that the standard for evaluating whether notice is
constitutionally adequate to terminate a public benefit was first articulated in
Goldberg v. Kelly, 397 U.S. 254 (1970). In that case, the Court held that the
fundamental requisites of due process of law – the opportunity to be heard at a
meaningful time and in a meaningful manner – “require that a recipient 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., 397 U.S. at 267–68. In

response to the Goldberg decision, Defendant asserts that the United States
Department of Housing and Urban Development (“HUD”) promulgated
regulations to articulate a uniform pre-termination notice and hearing
requirements that are currently found at 24 CFR § 982.555(c)(2). Defendant
asserts that the termination letter sent to Plaintiff complied with these
regulations.
Defendant argues that Plaintiff’s position – that an otherwise adequate
termination letter can be rendered inadequate if it is sent in conjunction with
other letters – is not supported by any case law, and the two cases cited by
Plaintiff are distinguishable.
The Court agrees that the Mayhew and Walters decisions are factually
distinguishable, and involve multiple notices that, independently, are not
constitutionally adequate or include language that is affirmatively misleading.
In Mayhew, plaintiffs challenged “the series of three letters by which the
state notifies a recipient of an overpayment [of state benefits] and its
consequences offers inadequate notice of (1) the nature and scope of the
recipient’s right to contest the recoupment, and (2) the reasons for the
government’s actions.” Id. 604 F. Supp. at 855. The district court held the series

of letters did not provide constitutionally adequate notice, because the letters did
not reasonably inform the recipients of the availability of a hearing or offer
recipients the opportunity to adequately prepare for such hearing. Mayhew, 604
F. Supp. at 856.
In Walters, the court addressed the adequacy of procedures used by the
INS to procure waivers of the right to a hearing in document fraud proceedings.
145 F.3d at 1037. The plaintiffs alleged the procedures were constitutionally
deficient because the forms used in connection with the proceedings did not
adequately inform aliens of their right to a hearing or of the drastic immigration
consequences that would ensue if the alien failed to request a hearing –
deportation. Id. at 1038. The court agreed and found that each of the forms at
issue were constitutionally inadequate, and that such inadequacy was
compounded when the forms were read together. Id. at 1042. In addition, the
court found “the forms the government serves on the plaintiff are not only
confusing, they are affirmatively misleading.” Id.
In this case, however, there appears to be no dispute that the termination
notice and the overpayment notice are constitutionally adequate when read
independent of the other. In addition, there is no claim that the language used in

the forms is affirmatively misleading or confusing. Further, the overpayment
letter does not inform or suggest that by signing the Repayment Agreement, and
making monthly payments, such action would nullify the termination notice. In
addition, the termination notice clearly states that if Plaintiff disagreed with the
decision to terminate benefits she “must submit a written request for an informal
hearing within ten (10) workings days of the date of this letter” and provides
information as to the contact person and the address to send the request. (Ex. 1
(emphasis added).) Plaintiff has thus failed to demonstrate a likelihood of
success on the merits.
Because Plaintiff has failed to demonstrate that she is entitled to
preliminary injunctive relief, her motion must be denied.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Emergency Injunctive
Relief [Docket No. 8] is DENIED.

Dated: March 29, 2018
s/ Michael J. Davis
MICHAEL J. DAVIS
United States District Court