KONGTCHEU v. CONSTABLE
OPINION. Signed by Judge Claire C. Cecchi on 1/20/16. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILIBERT F. KONGTCHEU,
Civil Action No.: 12-68 72
RICHARD F. CONSTABLE, III,
CECCHI, District Judge.
Before the Court is the unopposed motion of Defendants Richard E. Constable, III, and the
New Jersey Department of Community Affairs (collectively, “Defendants”) to dismiss the Second
Amended Complaint of pro se Plaintiff Philibert F. Kongtcheu (“Plaintiff’) pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 3$.) No oral argument was heard
pursuant to Federal Rule of Civil Procedure 7$. For the following reasons, Defendants’ motion is
Plaintiff filed his initial Complaint on October 22, 2012, in which he asserted various
claims arising out of his dissatisfaction with his housing subsidy. (ECF No. 1.) Plaintiff named
as the sole defendant Richard E. Constable, III (“Constable”), in his official capacity as the
Commissioner of the New Jersey Department of Community Affairs (“NJDCA”).
Complaint was subject to screening on the merits pursuant to 28 U.S.C.
§ 1915(e)(2).’ Deeming
‘This statute authorizes courts to permit the filing of an action without prepayment of filing
fees. The statute’s screening mechanism provides an action “shall be dismiss[ed]
if the court
the complaint unclear, the Court issued an order on January 31, 2013, dismissing the complaint
without prejudice and allowing Plaintiff to file an amended complaint. (ECF No. 3.) The Court
directed Plaintiff to provide a simplified explanation, in any amended complaint, of the
governmental body or agency he intended to sue, the particular applications he had made to any
such agency, and whether he had exhausted his administrative remedies.
id. at 4. The order
further indicated that Plaintiff could state in a separate section of his amended complaint the
particular regulation or statute he sought to attack as unduly vague.
On March 25, 2013, Plaintiff filed his Amended Complaint. (ECF No. 5.) Plaintiff again
named as the sole defendant Constable, in his official capacity as the Commissioner ofthe NJDCA.
The Amended Complaint was not a stand-alone pleading; rather, the Amended Complaint referred
back to Plaintiffs original Complaint in an effort to clarify it and to respond to the Court’s
January 31, 2013 order. Constable filed an Answer to Plaintiffs Amended Complaint on October
30, 2013. (ECF No. 18). Constable filed a Motion for Judgment on the Pleadings pursuant to
federal Rule of Civil Procedure 12(c) on April 11, 2014. (ECF No. 21.) Both the Answer and the
Motion addressed only Plaintiffs Amended Complaint (and not the original Complaint). for
clarity’s sake and in light of Plaintiffs pro se status,2 the Court directed Plaintiff to file one new,
all-inclusive Second Amended Complaint. (ECF No. 28.)
On May 12, 2015, Plaintiff filed his Second Amended Complaint. (Second Amended
determines that [it] is frivolous or malicious; fails to state a claim on which relief may be granted;
or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” (internal quotations omitted)).
Complaint (“Second Am. Compl.”), ECF No. 29.) This time, Plaintiff named two defendants:
(1) Constable, in his official capacity as the Commissioner of the NJDCA, and (2) the NJDCA.3
Plaintiffs Second Amended Complaint alleges the following facts. Plaintiff was a resident
of Hudson Manor Health Care Center (“Hudson Manor”), a nursing home in Secaucus, New
Jersey, from July 9, 2011 to March 16, 2014.
( ¶ 5.)
Plaintiff was originally transferred to
Hudson Manor from Hoboken University Medical Center for physical therapy following the onset
of partial paralysis due to “Post Polio Syndrome.” (Id.)
Plaintiff received a Non-Elderly Disabled Section $ voucher (“NED Voucher”) from the
U.S. Department of Housing and Urban Development (“HUD”) on December 28, 2011. (Id.
Ex. A23.4) The NJDCA is the public housing agency (“PHA”) charged with administering the
Housing Choice Voucher Program pursuant to which Plaintiff received his NED Voucher. (Id.)
According to the terms of the NED Voucher, “[u]nder this program, the [voucher holder] chooses
a decent, safe and sanitary unit to live in,” and “[i]f the owner [of the unit] agrees to lease the unit
to the [voucher holder] under the housing choice voucher program, and if the PHA approves the
unit, the PHA will enter into a housing assistance payments (HAP) contract with the owner to
make monthly payments to the owner to help the [voucher holder] pay the rent.” (Id.) Plaintiff
understood the NED Voucher could be applied to “a two bedroom rental unit.
with a rental cap
In his Second Amended Complaint, Plaintiff states the term “defendant” also refers to
“any named employee of the [NJDCA] under the authority of the Commissioner, acting in an
official capacity in relation to the subject matter of the complaint.” (Second Am. Compl. ¶ 1.)
However, Plaintiff only named as defendants Constable, in his official capacity as the
Commissioner of the NJDCA, and the NJDCA and, thus, the Court will construe this action as
only proceeding against them.
Plaintiff attached three large exhibits to his Second Amended Complaint, each consisting
numerous documents. Plaintiff stamped each page of each exhibit with a unique alphanumeric
identifier. For ease of reference, the Court will refer to Plaintiff’s exhibits herein using these
in Hudson County at $1,393 per month,” and later learned a utility allowance would be deducted
from that maximum rental amount. (Id.
Plaintiff found it very difficult to locate desirable housing that would accommodate his
disability and also fall within the rental cap provided by his NED Voucher.
( ¶ 12.)
this difficulty, Plaintiff communicated extensively with the NJDCA via letter, fax, phone, and inperson meeting, seeking “reasonable accommodations” for his disability.
In sum, Plaintiff
requested the following assistance from the NJDCA, which he characterized as “reasonable
accommodations”: (1) permission to participate in the NJDCA’s homeownership voucher
program, which would permit Plaintiff to apply his NED Voucher to the purchase of a home, given
that Plaintiff was having difficulty locating housing that could accommodate his disability in the
rental market; (2) conversion of his NED Voucher to a three-bedroom voucher to allow Plaintiff
to accommodate his children and a live-in aide; and (3) approval of applications for housing units
that Plaintiff selected but for which the rent exceeded the NED Voucher’s cost limitation.5 (Id.
In response, NJDCA representatives communicated the following to Plaintiff: (1) Plaintiff
was not eligible to participate in the NJDCA’s homeownership voucher program as he had not
participated in the rental voucher program for at least one year; (2) the NJDCA was reviewing
Plaintiffs request for a live-in aide;6 and (3) Plaintiffs requests for approval to rent various units
Plaintiff requested the NJDCA both (1) make exceptions to the rental cap indicated on
his NED Voucher and (2) assist him by negotiating with potential landlords to lower the rent of
units in which Plaintiff was interested, so the rental cost would not exceed the NED Voucher’s
cost limitation. (Id. ¶J 20-21.)
According to Plaintiff, representatives of the NJDCA communicated confusing and
contradictory messages to him regarding the documentation required for a live-in aide. It appears
from the Second Amended Complaint, however, the NJDCA eventually received the required
documentation and indicated that Plaintiffs application for a live-in aide was under review. (Id.
¶J 26-27, 33; id. ¶ 70, Ex. A70.) The Second Amended Complaint also alleges the NJDCA
were denied as the rental costs of the units exceeded the rental cap provided in the NED Voucher.
( ¶J 14,
20, 26-27.) Believing his requests and follow-up letters thereto had been unfairly
ignored and denied, Plaintiff requested an administrative hearing from the NJDCA hearing
coordinator to review these actions on July 17, 2012. (Id.
On July 25, 2012, Plaintiff
received a letter from Hearing Officer Dawn Sullivan, stating Plaintiff was not entitled to a hearing
as Plaintiff was an applicant to the Housing Choice Voucher Program and was not yet a participant
in the program.
Ex. A83.) Officer Sullivan informed Plaintiff that she would nevertheless
forward his concerns to the Regional Supervisor. (Id.
On August 2, 2012, Plaintiff received a letter from the NJDCA indicating the time period
within which Plaintiff was required to locate housing eligible for assistance under his voucher
program was set to expire on August 22, 2012 and no extension would be granted. (Id.
A84.) Plaintiff responded with a letter reiterating his request for “reasonable accommodations” in
the form of admittance to the homeownership voucher program, which would allow him to pursue
a wider range of housing options. (Id., Ex. A85.) On September 20, 2012, Plaintiff received a
letter from the NJDCA indicating Plaintiffs voucher had actually expired on April 28, 2012, and
Plaintiff could contact the local Field Office Supervisor to request an extension. (Id., Ex Al 00.)
On September 24, 2012, Iraisa C. Orihuela-Reilly of Disability Rights New Jersey wrote a letter
to the Field Office Supervisor on Plaintiffs behalf, requesting an extension of Plaintiffs time to
locate suitable housing pursuant to 24 C.F.R.
9$2.303(b)(2), which requires “the PHA must
extend the voucher term up to the term reasonably required” as a reasonable accommodation to a
person with a disability. (Id.
¶ 41, Ex. A102-103.)
changed his voucher from a two-bedroom-eligible voucher to a one-bedroom-eligible voucher
because Plaintiffs home was not the primary residence for his children. (Id. ¶ 25.)
Plaintiff alleges in his Second Amended Complaint the NJDCA’s failure to make the
“reasonable accommodations” requested—namely, failure to approve Plaintiffs requests to rent
apartments at amounts greater than the rental cap permitted by his NED Voucher, failure to grant
Plaintiffs request for a live-in aide, failure to admit Plaintiff to the homeownership voucher
program, and failure to assist Plaintiff generally with his housing search—constitute actionable
violations under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
12165; Section 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C.
Fair Housing Amendments Act (“FHAA”), 42 U.S.C.
§ 701 et seq.; the Federal
§ 3601 et seq. and 24 C.F.R.; and the NJCFA
Housing Choice Voucher Administrative Plan and Guide to the housing choice voucher program.
¶J 45-83, 121.)
Plaintiff also argues: the NJDCA’s failure to accommodate his requests violated Plaintiffs
rights to due process under the Fifih and Fourteenth Amendments to the United States Constitution
¶J 97-112, 123); the rules or regulations governing the terms of the Housing Choice Voucher
Program were unconstitutionally vague
( ¶J 47-48, 102-108); the NJDCA violated the
“Olmstead mandate,” established in Olmstead v. L.C., 527 U.S. 581 (1999) (id.
and the NJDCA is liable to Plaintiff for reckless endangerment and emotional distress as a result
of Plaintiffs continued stay at the Hudson Manor nursing home pending his ability to find
affordable and accessible housing (id.
113-118). Finally, Plaintiff alleges the NJDCA violated
the Electronic Signatures in Global and National Commerce Act, 15 U.S.C.
§ 7001 et seq. for
failing to communicate with Plaintiff via fax or email in lieu of regular mail. (Id.
¶J 84-88, 124.)
Plaintiff seeks declaratory and injunctive relief requiring Defendants to immediately start paying
for Plaintiffs current rental accommodations and grant Plaintiff the accommodations he seeks.
(I4 ¶J 120-127.) Plaintiff also requests damages and that the Court order the NJDCA to establish
various policies and procedures. (Id.
¶J 124, 126, 127-129.)
On May 12, 2015, Defendants filed the instant motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff did not oppose the motion.
A motion to dismiss a complaint will be granted where the court lacks subject matter
jurisdiction to hear the claim, Fed. R. Civ. P. 12(b)(1), or where the complaint fails to state a claim
upon which relief can be granted, Fed. R. Civ. P. 1 2(b)(6). A federal court lacks subject matter
jurisdiction to hear claims barred by the Eleventh Amendment. See Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 794 n.2 (3d Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 98-100 (1984)). The Eleventh Amendment-immunity defense is a facial attack on
federal jurisdiction and is therefore decided in the same procedural posture as a motion to dismiss
pursuant to Rule 12(b)(6). Kirkland v. DiLeo, No. CIV. 2:12-1196 KM, 2013 WL 1651814, at *3
(D.N.J. Apr. 15, 2013). Under Rule 12(b)(6), a complaint fails to state a claim upon which relief
can be granted if, accepting all of the complaint’s well-pleaded allegations as true and viewing
them in the light most favorable to the plaintiff, there is no “reasonable reading of the complaint
[under which] the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008) (internal citation and quotation marks omitted).
Defendants contend dismissal is warranted on five grounds.
First, Defendants argue
Plaintiff fails to state any claims in the Second Amended Complaint and thus fails to meet the
requirements of Rule 8(a). (Defendant’s Brief (“Def. Br.”), ECF No. 32-4 at 2-3.) Second,
Defendants argue Plaintiffis suit against them is barred by sovereign immunity under the Eleventh
Amendment to the U.S. Constitution. (Id. at 3-7.) Third, Defendant Constable argues he is entitled
to qualified immunity, even if the Court finds sovereign immunity has been waived. (Id. at 7-8.)
Fourth, Defendants argue any state law claims against them are barred because of Plaintiff s failure
to file a Notice of Tort Claim, N.J. Stat. Ann.
§ 59:8-8, or a Notice of Contract Claim, N.J. Stat.
§ 59:13-1. (Id. at 8-10.) And, fifth, Defendants argue the Second Amended Complaint
should be dismissed for failing to state a claim upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). (RI. at 10-19.)
The Court disagrees with Defendants’ contention that Plaintiffs Second Amended
Complaint fails to state any claims at all. Consistent with its obligation to construe pro se pleadings
liberally, the Court has noted above various claims that maybe gleaned from the Second Amended
Complaint. The Court finds, however, that Plaintiffs claims are not claims for which this Court
can grant relief.
As a preliminary jurisdictional matter, the Court addresses the implications of the Eleventh
Amendment for this case.
The Eleventh Amendment “has been interpreted to make states
generally immune from suit by private parties in federal court,” and this sovereign immunity
“extends to state agencies and departments.” MCI Telecomm. Corp. v. Bell Ati. Pa., 271 F.3d
491, 503 (3d Cir. 2001). The NJDCA is a statutory department within the executive branch of the
state of New Jersey and functions as an arm of the state. N.J. Stat. Ann.
§ 52:27D-1. Constable
is the Commissioner of and oversees the NJDCA. (Def. Br. at 5.) Thus, absent an exception,
Plaintiffs suit is barred by Eleventh Amendment sovereign immunity.
There are three exceptions to sovereign immunity: “(1) congressional abrogation, (2) state
waiver, and (3) suits against individual state officers for prospective relief to end an ongoing
violation of federal law.” MCI Telecomm. Corp., 271 F.3d at 503. Plaintiffs claims against the
NJDCA do not fall under any exception and thus are barred by the Eleventh Amendment.
Plaintiffs claims for prospective injunctive and declaratory relief against Constable, however, fall
within the third exception and thus are not barred by the Eleventh Amendment. Under the third
exception, pursuant to the doctrine established in Ex Parte Young, 209 U.S. 123 (1908),
“individual state officers can be sued in their individual capacities for prospective injunctive and
declaratory relief to end continuing or ongoing violations of federal law.” MCI Telecomm. Corp.,
271 F.3d at 506; see also Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir. 2003) (state officer
sued in her official capacity under the doctrine of Ex Parte Young was a “public entity” subject to
liability under ADA). Thus, Plaintiffs claims for prospective injunctive and declaratory relief
against Constable, in his official capacity as the Commissioner of the NJDCA, are not barred by
the Eleventh Amendment to the extent they allege ongoing violations of federal law.7 Plaintiffs
claims for damages, however, are barred by the Eleventh Amendment.
Americans with Disabilities Act and Rehabilitation Act Claims
Plaintiff fails to state a claim for violations of Title II of the ADA, 42 U.S.C.
12 165, or Section 504 of the RA, 29 U.S.C.
et seq.. Both the ADA and the RA provide that
public entities must reasonably modify their “policies, practices, or procedures” to avoid
discrimination against individuals with disabilities, as long as the modification does not
fundamentally alter the nature of the institution’s services, programs, or activities or otherwise
impose undue burden.
§ 35.130(b)(7); see also Juvelis v. Snider, 68 F.3d 648, 653
(3d Cir. 1995); Easley v. Snider, 36 F.3d 297, 304 (3d Cir. 1994). Claims under Title II and
Because Plaintiff only names Constable in his official capacity, Constable’s qualified
immunity argument does not apply here. $ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
t”tG]ovemment officials performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”).
are subjected to the same analysis.
Castro v. Bayonne Hous. Auth., Civ. No. 10-403 (DRD),
2010 WL 1849997, at *3 (D.N.J. May 7, 2010).
To determine whether a violation of either Title II or
§ 504 has occurred, the Court must
first determine if there has been a prima facie showing of disability discrimination. See Liberty
Res., Inc. v. Phila. Hous. Auth., 52$ F. Supp. 2d 553, 565 (E.D. Pa. 2007). To establish a prima
facie showing of disability discrimination under the ADA, a plaintiff must show “1) he or she has
a disability; 2) he or she is otherwise qualified; and 3) he or she is being excluded from
participation in, being denied the benefits of, or being subjected to discrimination under the
program solely because of her disability.”
(citing Jones v. City of Monroe, 341 F.3d 474, 477
(6th Cir. 2003)).8 Only after there has been a prima facie showing of disability discrimination
must the Court engage in a reasonable accommodation analysis. Id.
Here, in the Second Amended Complaint, Plaintiff has not alleged a prima facie case of
discrimination under the ADA or RA because Plaintiff has not alleged Defendant’s failure to
accommodate him was due to his disability.
It is not disputed that Plaintiff is a handicapped or
disabled person. Plaintiff has not alleged, however, he was denied various accommodations
because of his disability. Plaintiff received a NED Voucher to help him afford a unit of his
choosing in the private market. Plaintiff alleges the NJDCA denied Plaintiff’s applications for
rental units because they had a cost greater than the rental cap provided in his voucher, not on
account ofhis disability. Plaintiff acknowledges the NJDCA indicated it was reviewing his request
Similarly, to establish a prima facie showing of disability discrimination under the RA, a
plaintiff must show “(1) he or she is a ‘handicapped individual,’ (2) he or she is ‘otherwise
qualified’ for participation in the program, (3) the program receives ‘federal financial assistance,’
and (4) he or she was ‘denied the benefits of or ‘subject to discrimination’ under the program.”
Liberty Res., Inc. v. Phila. Hous. Auth., 528 F. Supp. 2d 553, 565 (E.D. Pa. 2007) (citing
Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991)).
for a live-in aide, meaning the agency did not deny him any accommodation in that case. finally,
as Plaintiff contends, the NJDCA did not admit Plaintiff to the homeownership voucher program
because Plaintiff was not a member of the rental voucher program for at least one year, not because
of Plaintiffs disability.9
Because Plaintiff has not established a prima facie case of discrimination, the Court need
not undertake a reasonable accommodation analysis. See id. (“If a plaintiff cannot establish a
prima facie case of discrimination there is no violation of either the ADA or the RA and no
accommodations are necessary.”).
Fair Housing Amendments Act Claims
Plaintiff fails to state a claim for violation of the FHAA, 42 U.S.C.
§ 3601 et seq. and 24
C.F.R, and therefore the Court will dismiss his FHAA claim. In his Second Amended Complaint,
Plaintiff does not point to any specific FHAA provisions. However, because Plaintiff brings a
reasonable accommodation claim, the Court assumes Plaintiff seeks relief under
§ 3604. To the
extent Plaintiff seeks relief under a different provision, the Court will dismiss this claim without
Section 3604 prohibits discrimination against “any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection
with such a dwelling” on the basis ofthat person’s handicap, and states that discrimination includes
“a refusal to make reasonable accommodations in rules, policies, practices or services, when such
accommodations may be necessary to afford such person equal opportunity to use and enjoy a
dwelling.” 42 U.S.C.
§ 3604(f)(1), 3604(f)(3)(B).
The status of Plaintiffs requests for a live-in aide and an extension of his voucher are
unclear to the Court.
Although a private right of action exists under 42 U.S.C.
§ 3613 for persons aggrieved by
a discriminatory housing practice, the Third Circuit has stated that “[n]othing in the text or
legislative history of
§ 3604(0(1) suggests
that Congress intended to regulate and thereby
subject to judicial review the decision-making of public agencies which sponsor housing for the
handicapped.” Growth Horizons, Inc. v. Del. Cnty., Pa., 983 F.2d 1277, 1283-84 (3d Cir. 1993);
see also Taylor v. Hous. Auth. of New Haven, 267 F.R.D. 36, 49 (D. Conn. 2010) (citing Growth
Horizons, 983 f.2d at 1283, for the proposition “[t]here is authority suggesting that
§ 3604 applies
only to landlords, owners, and others who offer dwellings for rent or sale, and therefore that the
statute would be inapplicable to a PHA administering a Section 8 voucher program”).
Moreover, in the Second Amended Complaint Plaintiff has not alleged a prima facie case
of discrimination under
§ 3604 as he has not alleged Defendants’ failure to accommodate him hurt
him by reason of his disability. See Taylor, 267 F.R.D. at 70, affd, 645 F.3d 152 (2d. Cir. 2011)
(Section 504 of the RA and the FHAA are “addressed to the ‘rules
that hurt [people with
disabilities] by reason of their handicap, rather than that hurt them solely by virtue of what they
have in common with other people”); Hopkins v. Springfield Hous. Auth., No. 11-3347, 2014
WL 3583857, at *5 (C.D. Ill. July 21, 2014) (dismissing FHAA claims based on reasonable
accommodation in part because plaintiff “failed to allege any facts suggesting he was treated
differently because of his disability”). In Taylor, 267 F.R.D. 36, a case very similar to the instant
matter, the district court held (and the Second Circuit affirmed) a PHA’s rejection of a Section 8
program participant’s request “for an exception rent to pay for the grab-bars” needed for his
disability did not constitute a failure to provide reasonable accommodation under the FHAA or the
RA, based on the rationale that “the ‘benefit’ of Section $ does not include housing, or a guarantee
that a participant will find suitable housing.
[t]he benefit of the Section 8 Program for its
participants is that the program provides them financial assistance to afford units available in the
private market.” Id. at 73-74.
Here, Plaintiff received a voucher to help him afford a unit of his choosing in the private
market. Plaintiff alleges the NJDCA denied Plaintiffs applications for rental units because they
cost more than the rental cap provided in his voucher, not on account of his disability. Plaintiff
contends the NJDCA did not admit Plaintiff to the homeownership voucher program because
Plaintiff was not a member of the rental voucher program for at least one year, not because of his
disability. finally, Plaintiff acknowledges the NJDCA indicated it was reviewing his request for
a live-in aide, meaning that the agency did not deny him any accommodation in that case.
Plaintiff argues the NJDCA is compelled to grant his requests for accommodation by the
Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (2009), which held the proscription
of discrimination by the ADA
may require placement of persons with mental disabilities in community settings
rather than in institutions
when the State’s treatment professionals have
determined that community placement is appropriate, the transfer from institutional
care to a less restrictive setting is not opposed by the affected individual, and the
placement can be reasonably accommodated, taking into account the resources
available to the State and the needs of others with mental disabilities.
at 587. Olmstead’s integration mandate appears to apply primarily to patients with mental
health disabilities, though the ADA does not limit the definition of a “qualified individual with a
disability” to individuals with mental disabilities. 42 U.S.C.
§ 12131. The Third Circuit has held
“Olmstead requires that patients eligible and desirous of community placement be discharged into
community-based programs if placement can be reasonably accommodated, taking into account
the resources of the state and the needs of other persons in its care.” Frederick L. v. Dep’t of Pub.
Welfare of Pa., 422 F.3d 151, 157 (3d Cir. 2005) (citing Olmstead, 527 U.S. at 587). If Olmstead
would apply to physical disabilities such as Plaintiff’s, Plaintiffs Second Amended Complaint
does not explain the connection between Plaintiffs ongoing stay in Hudson Manor and the actions
of the NJDCA (who offered Plaintiff a NED Voucher to obtain housing in the community). In
other words, Olmstead is targeted at the medical treatment plans afforded to individuals by public
entities, rather than the provision of subsidized housing to physically disabled persons. Thus,
Plaintiffs Second Amended Complaint fails to state a claim under Olmstead.
In his Second Amended Complaint, Plaintiff alleged the NJDCA violated his Fifth and
Fourteenth Amendment Due Process Rights by their “repeated ignorance of plaintiffs right to
adequate notice, a hearing and a neutral judge about his grievance” and the regulations governing
the size of Plaintiffs voucher—i.e., the number of bedrooms—violated his due process rights
because they were unconstitutionally vague. (Second Am. Compi.
In response to this
Court’s order instructing Plaintiff to clarify which law or laws he sought to attack as vague,
Plaintiff stated in his Second Amended Complaint that the guidance in the Guide to the Housing
Choice Voucher Program was unduly vague. (Id.
The Supreme Court has held the Fourteenth Amendment’s Due Process Clause has both a
procedural and a substantive component. Nicholas v. Penn. State Univ., 227 F.3d 133, 138-39 (3d
Cir. 2000). One may challenge a legislative act or non-legislative state action for violation of
substantive due process. Id. Under the prong limiting non-legislative state action, “a property
interest that falls within the ambit of substantive due process may not be taken away by the state
for reasons that are ‘arbitrary, irrational, or tainted by improper motive.” Id. at 139 (internal
quotations omitted). To find a violation of substantive due process, the Third Circuit has held the
conduct of governmental employees must amount to an abuse of official power that “shocks the
conscience.” United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 399-
400 (3d Cir. 2003) (“[EJxecutive action violates substantive due process only when it shocks the
conscience.”). To be entitled to substantive due process protection, a property interest must be
“fundamental.” Nicholas, 227 F.3d at 139.
Procedural due process requires that the state
procedure for challenging the deprivation of a protected property interest satisfy certain procedural
requirements. DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 f.3d 592, 597
(3d Cir. 1995), abrogated on other grounds, United Artists Theatre Circuit, Inc., 316 f.3d 392.
Plaintiff lacks a protected property interest necessary to state a claim for violation of either
procedural or substantive due process, as he has not asserted the state deprived him of any property
right. Plaintiff does not allege the NJDCA deprived him of the ability to participate in the Housing
Choice Voucher Program; though Plaintiffs voucher may have expired, the NJDCA informed him
he could request an extension or apply for another voucher. (Second Am. Compi., Ex. A84.)
Rather, the NJDCA merely refused to approve Plaintiffs applications for units that exceeded the
cost limitations prescribed by his voucher. See Reyes-Garay v. Integrand Assur. Co., 818 F. Supp.
2d 414, 435 (D.P.R. 2011) (“A Section 8 tenant does not have the right to choose absolutely any
housing unit; their rights are limited to those unit[s] in which the landlord agrees to contract with
the local housing authority and [are] further limited [by other factors].”).
Plaintiffs claim that the regulations governing the Housing Choice Voucher Program are
unconstitutionally vague also fails because the purpose of the void for vagueness doctrine is “to
give ‘fair warning’ of prohibited conduct,” and the inquiry is “whether the statute or standard is
sufficiently explicit to inform those who are subject to it what conduct on their part will render
them liable to its penalties.” San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992).
Here, though the Court appreciates that the housing voucher program guidelines and Plaintiffs
interactions with the NJDCA may have been confusing, Plaintiff does not allege he engaged in
any prohibited conduct for which he was found liable for penalties or punishment.
Plaintiffs allegation that Defendant is liable under the Electronic Signatures in Global and
National Commerce Act, 15 U.S.C.
§ 7001 et seq., for failing to communicate with Plaintiff via
fax or email is without merit. Plaintiff does not cite any portion of that law or other law that would
require Defendant to communicate with Plaintiff electronically.’0
Finally, Plaintiff included “reckless endangerment” and “emotional distress” among the
counts in his Second Amended Complaint. Because this Court dismisses Plaintiffs federal law
claims, the Court lacks jurisdiction over any state law tort or contract claims that Plaintiff may
have intended to include in his Second Amended Complaint. 28 U.S.C.
§ l367(c)(3). Further, to
the extent those claims are claims for monetary damages, they are barred by the Eleventh
Amendment. See Reyes-Garay, 818 F. Supp. 2d at 428-29 (dismissing all claims for monetary
relief against defendants in their official capacities as PHA officers due to sovereign immunity
defense but retaining jurisdiction over all claims for prospective injunctive relief against the PHA
and defendants in their official capacities).
Plaintiff cites 15 U.S.C. § 7001(a)(2), which provides “a contract relating to [a
transaction in or affecting interstate or foreign commerce] may not be denied legal effect validity,
or enforceability solely because an electronic signature or electronic record was used in its
formation.” ( Second Am. Compi. ¶ 85.) This provision is inapplicable to this case as it applies
to the force of law given to a signature on a contract transmitted via electronic means, and does
not require the NJDCA to approve the use of electronic transmittal for any document.
For the foregoing reasons, the motion to dismiss is granted. The Court will dismiss all
claims in the Second Amended Complaint with prejudice, with the exception of Plaintiffs FHAA
claim against Constable, in his official capacity as the Commissioner of the NJDCA, which will
be dismissed without prejudice. An appropriate order accompanies this Opinion.
CLAIRE C. CECCHI
United States District Judge
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