FIELDS v. CITY OF SALEM HOUSING AUTHORITY et al

Filing 4

OPINION. Signed by Judge Noel L. Hillman on 7/10/2015. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
ALBERT J. FIELDS, JR.
Plaintiff,

Civil No. 14-778 (NLH/KMW)

v.
OPINION
CITY OF SALEM HOUSING
AUTHORITY, et al.,
Defendants.
__________________________________
APPEARANCES:
Albert J. Fields, Jr.
P.O. Box 1052
Salem, New Jersey 08079
Plaintiff Pro Se
HILLMAN, District Judge:
Presently before the Court for review pursuant to 28 U.S.C.
§ 1915(e) is an amended complaint filed by Plaintiff pro se,
Albert J. Fields.

Plaintiff previously filed a complaint, which

this Court dismissed for failure to comply with the pleading
requirements set forth in Bell Atl. Corp. v. Twombly, 550 U.S.
544, 563 n.8, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009).
14, 2014.)

(Mem. Op. and Order [Doc. No. 2] 6-7, Apr.

The Court directed Plaintiff to file an amended

complaint “which sets forth facts demonstrating that Plaintiff

1

has a plausible claim for relief.”

(Id. at 7.)

Plaintiff then

filed the amended complaint as directed by the Court.

Because

Plaintiff is proceeding in forma pauperis, the Court must review
the amended complaint and dismiss sua sponte any claim if the
Court determines that such claim is “frivolous, malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief.”
I.

(Id. at 3.)

BACKGROUND
Plaintiff brings this action against the City of Salem

Housing Authority (hereafter, “SHA”), which he alleges is a
“municipal corporation established pursuant to United States
housing Act, 42 U.S.C. 1401 et seq. and regulated by the United
States Department of Housing and Urban Development, 24 C.F.R. §
900 et seq. and the Public Housing Occupancy, Handbook 7465.1
REV . . . to provide federally subsidized housing for low-income
tenants[.]”

(Am. Compl. ¶ 2.)

Plaintiff also names as

defendants two employees of the SHA, Elizabeth Loyle and
Francine Dickerson.

(Id. ¶¶ 3, 4.)

Plaintiff avers that on July 12, 2010, he entered into a
residential lease agreement with the SHA for a one bedroom unit
located at 133 Anderson Drive, Salem, New Jersey.
6.)

(Am. Compl. ¶

At that time, Plaintiff’s rent was $50 per month.

(Id.)

Plaintiff thereafter became employed and was also enrolled in
2

Salem Community College.

(Id. ¶ 7.)

In April 2011, the SHA

performed an interim rent evaluation and increased Plaintiff’s
rent.

(Id. ¶ 8.)

According to Plaintiff, the SHA required him

to pay the rent increase retroactive from October 2010 in $20
installments added to the monthly rental fee.

(Id.)

Plaintiff

was unable to pay the rent in June and July of 2011, and as a
result the SHA filed a complaint for non-payment of rent.
¶ 9.)

(Id.

Plaintiff contends that in August 2011, he entered into a

repayment agreement with the SHA and made all payments pursuant
to that agreement.

(Id. ¶ 10.)

In October 2011, however, Plaintiff was purportedly unable
to pay his rent and therefore requested a financial hardship
exemption.

(Am. Compl. ¶ 11.)

The SHA did not respond to this

request until March 9, 2012, denying such request for failure to
include documentation defining the hardship.

(Id. ¶ 13.)

In

the interim, the SHA, on February 9, 2012, had filed another
complaint for non-payment of rent.

(Id. ¶ 12.)

In that action,

the court entered a judgment of possession for the SHA in the
amount of $2,399.50, which amount was subsequently reduced to
$1,972.50.

(Id. ¶ 14.)

In May 2012, the SHA performed another rent evaluation and
determined Plaintiff’s new rent to be $206 per month.

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(Id. ¶

15.)

Plaintiff was subsequently incarcerated, 1 which resulted in

termination of his employment.

(Id. ¶ 16.)

On June 17, 2012,

Plaintiff requested a financial hardship exemption, and
Plaintiff was advised on August 17, 2012 that his rent would be
reduced to $50 per month.

(Id. ¶¶ 17, 18.)

Nonetheless, on

August 23, 2012, the SHA purportedly proceeded with eviction
procedures for non-payment of rent, and ultimately obtained a
default judgment of possession.

(Id. ¶¶ 19-20.)

Plaintiff

appealed that order, and the Superior Court of New Jersey,
Appellate Division vacated the default judgment.
40.)

(Id. ¶¶ 23,

The SHA apparently declined to proceed in that eviction

action.

(Id. ¶ 40.)

In December 2012, Plaintiff obtained employment as a cable
television technician with Prince Telecom LLC, where he worked
through April 2013.

(Am. Compl. ¶ 26.)

In May 2013, Plaintiff

began collecting unemployment benefits, which were garnished by
child support payments.

(Id. ¶ 29.)

In June 2013, the SHA

again performed an annual recertification to determine
Plaintiff’s new rent, this time increasing his rent from $50 per
month to $308 per month.

(Id. ¶ 30.)

Plaintiff opposed the

rent adjustment in writing, arguing that there should be an

1

The circumstances of Plaintiff’s incarceration are the subject
of a separate lawsuit which is also pending before the
undersigned.
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exemption for child support and an “income disregard.”
31.)

(Id. ¶

Despite his obligation to pay $308 per month, Plaintiff

paid only $50 rent for June and July 2013.

(Id.)

On August 5, 2013, the SHA advised Plaintiff that given his
earnings with Prince Telecom and work study earned while
attending Salem Community College, he owed $2,521 as unreported
income.
2013.

(Id. ¶ 32.)
(Id.)

Such payment was to be made by August 21,

On September 30, 2013, the SHA then filed a

complaint for non-payment of rent seeking $2,521 as unreported
income, rent in the amount of $258 for the month of July, and
$308 as rent for the months of August, September and October
2013.

(Id. ¶ 35.)

The court entered a judgment of possession

for the SHA in the amount of $3,703 and Plaintiff was removed
from the property pursuant to a warrant of removal.

(Id. ¶¶ 36,

41.)
Plaintiff now brings this case asserting four causes of
action.

In Count One, Plaintiff contends that upon the filing

of a request for a financial hardship exemption, the SHA was
required under 24 C.F.R. § 5.630 to suspend the rent requirement
for a period of ninety days, and its failure to do so
constituted a violation of due process.

(Am. Compl. ¶¶ 45, 46.)

Plaintiff seeks a declaration that the SHA’s “policy and
procedure of filing non-payment of rent complaints after
receiving [Plaintiff’s] request for hardship exemption, violates
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the rights of [Plaintiff] under his lease contract with SHA and
to due process under the 14th Amendment to the United States
Constitution[,]” as well as $7,000,000 in compensatory damages,
costs, and punitive damages.

(Id. ¶ 47.)

In Count Two,

Plaintiff alleges that when the SHA increased his rent in April
2011 and made such increase retroactive to October 2010, without
prior notice, the SHA further violated his due process rights.
(Id. ¶¶ 54, 55.)

In Count Three, Plaintiff contends that on two

occasions, he requested a financial hardship exemption and, in
retaliation, the SHA initiated complaints for non-payment of
rent in purported violation of 42 U.S.C. § 1437, 42 U.S.C. §
1986, Plaintiff’s right to due process of law, and New Jersey
state law.

(Id. ¶¶ 57, 58.)

Finally, in Count Four, Plaintiff

avers that when his rent was increased in June 2013, Defendants
Dickerson and Loyle received a written objection from Plaintiff
and should have provided him with an informal hearing.
64.)

(Id. ¶

Their failure to commence a hearing purportedly precluded

them, under 24 C.F.R. § 966.58, from filing an eviction action,
thus violating Plaintiff’s due process rights.
II.

(Id.)

JURISDICTION
Because Plaintiff asserts claims for a violation of the

Fourteenth Amendment pursuant to 42 U.S.C. § 1983, the Court
exercises subject matter jurisdiction over this action pursuant
to 28 U.S.C. § 1331.
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III. DISCUSSION
The legal standard for dismissing a complaint for failure
to state a claim pursuant to § 1915(e)(2)(B)(2) is identical to
the legal standard employed in ruling on 12(b)(6) motions.
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

In

considering whether a complaint fails to state a claim under
Fed. R. Civ. P. 12(b)(6), the Court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d

347, 350 (3d Cir. 2005); see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (“[I]n deciding a
motion under Fed. R. Civ. P. 12(b)(6), [a district court is] . .
. required to accept as true all factual allegations in the
complaint and draw all inferences from the facts alleged in the
light most favorable to” the plaintiff).

A pleading is

sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”

Fed. R.

Civ. P. 8(a)(2).
A district court asks “‘not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims[.]’”

Twombly, 550 U.S. at 563

n.8, 127 S. Ct. 1955 (quoting Scheuer v. Rhoades, 416 U.S. 232,
236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)); see also Iqbal,
556 U.S. at 684, 129 S. Ct. 1937 (“Our decision in Twombly
7

expounded the pleading standard for ‘all civil actions[.]’”)
(citation omitted).

First, under the Twombly/Iqbal standard, a

district court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.”

Fowler

v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing
Iqbal, 556 U.S. at 678, 129 S. Ct. 1937).

Second, a district

court “must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a
‘plausible claim for relief.’”

Fowler, 578 F.3d at 211 (citing

Iqbal, 556 U.S. at 679, 129 S. Ct. 1937).
“[A] complaint must do more than allege the plaintiff’s
entitlement to relief.”

Fowler, 578 F.3d at 211; see also

Phillips, 515 F.3d at 234 (“The Supreme Court’s Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.

This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S. at 556, 127
S. Ct. 1955).

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A.

Counts One and Two

The claims against the SHA in Counts One and Two 2 are
asserted pursuant to 42 U.S.C. § 1983.

Section 1983 is not a

source of substantive rights, but provides a vehicle for
vindicating the violation of other federal rights.

Graham v.

Connor, 490 U.S. 386, 393–94, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989).

The statute provides, in relevant part as follows:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . [.]

42 U.S.C. § 1983.

Therefore, to state a claim for relief under

§ 1983, a plaintiff must allege, first, the violation of a right
secured by the Constitution or laws of the United States and,
second, that the alleged deprivation was committed or caused by

2

Plaintiff does not specifically refer to Section 1983 in Count
Two, but rather brings a claim pursuant to the Due Process
Clause of the Fourteenth Amendment. To seek relief under the
United States Constitution, a plaintiff must utilize the vehicle
of a claim under 42 U.S.C. § 1983 and may not assert claims for
relief under the United States Constitution directly. Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906-07 (3d Cir. 1997).
Although Plaintiff does not directly cite Section 1983 in Count
Two, the Court construes the amended complaint as asserting a
claim pursuant to this statute.
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a person acting under color of state law.

West v. Atkins, 487

U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Piecknick
v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d Cir. 1994).
Municipalities and other local government units are among
those “persons” to which § 1983 liability applies.

Monell v.

New York City Dep’t of Social Services, 436 U.S. 658, 690, 98 S.
Ct. 2018, 56 L. Ed. 2d 611 (1978).

The SHA, as a public housing

authority and municipal corporation, is a “person” for purposes
of Section 1983.

Solomon v. Phila. Hous. Auth., 143 F. App’x

447, 456 n.14 (3d Cir. 2005) (holding that Philadelphia Housing
Authority is “person” for purposes of Section 1983).

A

municipality, however, cannot be held liable for the actions of
its employees based solely on the doctrine of respondeat
superior. Monell, 436 U.S. at 691–95, 98 S. Ct. 2018; Bielevicz
v. Dubinon, 915 F.2d 845, 849–50 (3d Cir. 1990).

In order to

successfully state a claim for municipal liability, a plaintiff
must allege that the employees’ actions were pursuant to a
policy or custom of the municipality itself.

Monell, 436 U.S.

at 694, 98 S. Ct. 2018; Watson v. Abington, 478 F.3d 144, 155
(3d Cir. 2007).
To show the existence of a policy or custom under Monell, a
plaintiff must allege that the municipality acted or failed to
act in any one of three ways.

First, the municipality may have

adopted an official policy that deprives citizens of their
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constitutional rights.

Monell, 436 U.S. at 694, 98 S. Ct. 2018.

Second, the municipality may have tolerated or adopted an
unofficial custom that resulted in the unlawful stripping of
constitutional rights.

Natale v. Camden Cnty. Corr. Facility,

318 F.3d 575, 584-85 (3d Cir. 2003).

Third, the municipality

may have failed to “train, supervise, or discipline” its
employees so as to prevent them from unlawfully depriving
citizens of their constitutional rights.

City of Canton v.

Harris, 489 U.S. 378, 380, 109 S. Ct. 1197, 103 L. Ed. 2d 412
(1989).
Here, Plaintiff does not sufficiently allege facts to state
a claim against the SHA under a theory of municipal liability.
Count Two contains no allegations of a “policy or practice” as
required to maintain an action against the SHA under Monell.

As

such, Count Two fails to state a claim against the SHA upon
which relief could be granted and will be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
As to Count One, while it refers to a “policy and practice
of filing non-payment of rent complaints after [Plaintiff]
requested a financial hardship exemption,” there are no factual
averments to support this assertion.

Plaintiff does not

specifically allege any facts to support his conclusion that the
SHA affirmatively adopted an official policy that non-payment of
rent complaints should be filed within ninety days
11

notwithstanding a request for a financial hardship exemption.
For example, he does not aver that a decisionmaker with final
authority to make municipal policy issued any official
proclamation, policy, or edict to proceed with non-payment of
rent complaints in the face of hardship exemption requests.

See

McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009).

Nor

does the complaint contain any factual averments concerning a
failure to properly train, supervise or discipline SHA employees
so as to prevent them from depriving individuals of their
constitutional rights.
The sole factual basis for Plaintiff’s “policy and
practice” allegation is that he requested a financial hardship
exemption on two occasions but the SHA nonetheless proceeded
with non-payment of rent complaints.

These two isolated

instances of purported wrongdoing do not support the conclusion
that the “‘practices of state officials [are] so permanent and
well-settled’ as to virtually constitute law.”

Andrews v. City

of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 2009) (internal
citations omitted).

Furthermore, Plaintiff does not identify a

specific decisionmaker or other state official responsible for
the alleged policy or custom, nor does he plead that a municipal
decisionmaker had any knowledge that non-payment of rent
complaints were being filed despite the existence of a financial
hardship request.

See McTernan, 564 F.3d at 658–59.
12

Hence, the

allegations supporting Count One are deficient, and this count
is also subject to dismissal without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
B.

Count Three

In Count Three, Plaintiff alleges that in retaliation for
filing a financial hardship exemption, the SHA initiated
proceedings for non-payment of rent.

(Am. Compl. ¶ 57.)

Plaintiff brings this claim pursuant to 42 U.S.C. § 1437, 42
U.S.C. § 1983, and 42 U.S.C. § 1986, as well as New Jersey state
law.

(Id. ¶ 58.)
Plaintiff’s federal claims are subject to dismissal.

Plaintiff does not allege that the SHA employed a “policy and
practice” that denied Plaintiff of his constitutional rights.
Therefore, under Monell Count Three fails to state a Section
1983 claim upon which relief could be granted.
be dismissed without prejudice.

This claim will

Plaintiff’s claim in Count

Three for an alleged violation of 42 U.S.C. § 1986 will also be
dismissed without prejudice.

A prerequisite of a claim under

Section 1986 is a claim under Section 1985, see Robison v.
Canterbury Village, Inc., 848 F.2d 424, 431 n.10 (3d Cir. 1988)
(“no claim can be maintained under section 1986 unless a cause
of action has been established under section 1985.”), and
Plaintiff here does not allege a violation of 42 U.S.C. § 1985.
Plaintiff’s claim under 42 U.S.C. § 1437 will be dismissed with
13

prejudice because this statute does not create a private right
of action.

See Chavis v. Bush, 305 F. App’x 11, 12 (3d Cir.

2008).
With respect to Plaintiff’s state law claim, the Court will
dismiss the claim with prejudice in part and without prejudice
in part.

New Jersey law provides for actions against a landlord

who “institute[s] any action against a tenant to recover
possession of premises, whether by summary dispossess
proceedings, civil action for the possession of land, or
otherwise . . . [a]s a reprisal for the tenant's efforts to
secure or enforce any rights under the lease or contract, or
under the laws of the State of New Jersey or its governmental
subdivisions, or of the United States[.]”
2A:42-10.10.

N.J. Stat. Ann. §

However, because the landlord in this case is a

public entity, Plaintiff was required to timely file a tort
claims notice before instituting an action against the SHA.

See

N.J. Stat. Ann. § 59:8-3.
Plaintiff’s retaliatory eviction claim is based on two
eviction proceedings initiated by the SHA -- one on February 9,
2012, and one on August 23, 2012.

(Am. Compl. ¶¶ 12, 19.)

It

appears that Plaintiff already raised a claim for retaliatory
eviction concerning the August 23, 2012 proceeding in a case he
filed in the Superior Court of New Jersey, Special Civil Part.
(Id. ¶ 23.)

This claim was dismissed with prejudice based on
14

Plaintiff’s failure to file a tort claims notice.

(Id. ¶ 28.)

Plaintiff cannot raise here a claim that was already dismissed
with prejudice based on his failure to file a tort claims
notice, and the claim in Count Three for retaliatory eviction
predicated upon the August 23, 2012 eviction proceeding will
therefore be dismissed with prejudice.

As to the February 9,

2012 eviction proceeding, Plaintiff does not allege that he
filed the requisite tort claims notice for this purported
wrongdoing.

To the extent Count Three is based on the SHA’s

retaliatory filing of a complaint in February 2012, the claim
will be dismissed, without prejudice to Plaintiff’s right to
file an amended complaint demonstrating that a tort claims
notice was timely filed.
C.

Count Four

Finally, in Count Four, Plaintiff brings claims against two
individual employees of the SHA -- Defendants Dickerson and
Loyle -- based upon their purported failure to follow the
appropriate grievance procedures before seeking to evict
Plaintiff from his residence.

Under the applicable regulation,

24 C.F.R. § 966.54, a tenant may present a grievance to the
public housing agency so that the grievance may be discussed
informally and settled without a hearing.

If the tenant is not

satisfied, he may then submit a request for a hearing to the
public housing authority and must be afforded a grievance
15

hearing by an impartial person or persons.

24 C.F.R. § 966.55.

The United States Court of Appeals for the Third Circuit has
concluded that a public housing tenant may bring a § 1983 action
to enforce his right to the grievance procedures under the
United States Housing Act and its accompanying regulations.
Farley v. Philadelphia Housing Auth., 102 F.3d 697, 704 (3d Cir.
1996).
Plaintiff contends in Count Four that he submitted a
written grievance to Defendants Dickerson and Loyle concerning
an increase in his rent from $50 to $308 per month, but they
failed to provide him with an informal hearing and instead
commenced eviction proceedings.

The Court finds these

allegations sufficient, at this time, to pass sua sponte
screening.

Accordingly, Plaintiff’s claims against Defendants

Loyle and Dickerson will be permitted to proceed at this time.
IV.

CONCLUSION
For the reasons set forth above, the claims against the

SHA, as set forth in Counts One through Three of the amended
complaint, will be dismissed.

The Court will allow Plaintiff

one final opportunity to amend the complaint to assert claims
against the SHA with respect to those claims that are dismissed
without prejudice.

The Section 1983 claim against Defendants

Loyle and Dickerson, as set forth in Count Four, will be
permitted to proceed past sua sponte screening.
16

Within thirty

days, Plaintiff must either file a proposed amended complaint
consistent with this Opinion, or advise the Court by letter that
he will not seek to amend the complaint and instead will proceed
only on the claims in Count Four against Defendants Loyle and
Dickerson.
An Order consistent with this Opinion will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated: July 10, 2015
At Camden, New Jersey

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