BELL v. THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al

Filing 45

OPINION. Signed by Judge Kevin McNulty on 5/1/17. (DD, ) N/M

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JUDY A. BELL,
Plaintiff,

Civ. No. 16-4396 (KM) (MAR)
OPINION

V.

THE UNITED STATE DEPARTMENT
OF HOUSING AND URBAN
DEVELOPMENT; THE CITY OF
PASSAIC, NJ; PASSAIC HOUSING
AUTHORITY OF PASSAIC;
COMMUNITY HEALTH LAW
PROJECT OF BLOOMFIELD, NJ;
CALDWELL BANKER REAL ESTATE
OF CLIFTON, NJ; SALVATION
ARMY GOOD SAMARITAN INN;
SISTER CATH HOMELESS
SHELTER FOR WOMEN; NJ
DEPARTMENT OF COMMUNITY
AFFAIRS, PATERSON, NJ
Defendants.

KEVIN MCNULTY, U.S.D.J.:

At the heart of the Complaint of this pro se plaintiff, Ms. Bell, is a claim
that she was discriminatorily denied public housing. Now before the Court are
multiple motions to dismiss the complaint (ECF nos. 21, 24, 37, 38, 39), to
which the plaintiff has not responded. Because the allegedly wrongful denials
took place in 1989 (at the earliest) and 2009 (at the latest), this action, filed in
2016, must be dismissed on statute of limitations grounds

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DISCUSSION
A.

Standard of Review

Rule 12(b)(6), Fed. R. Civ. P., provides for the dismissal of a complaint if
it fails to state a claim upon which relief can be granted. For the purposes of a
motion to dismiss, the facts alleged in the complaint are accepted as true and
all reasonable inferences are drawn in favor of the plaintiff. New Jersey
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760
F.3d 297, 302 (3d Cir. 2014). Federal Rule of Procedure 8(a) requires that the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
The motions to dismiss in this case invoke the statute of limitations.
That is ordinarily an affirmative defense, but it may be the subject of motion to
dismiss where “the time alleged in the statement of a claim shows that the
cause of action has not been brought within the statute of limitations.” Fried v.
JPMorgan Chase & Co., 850 F.3d 590, 604 (3d Cir. 2017) (quoting Schmidt v.
Skolas, 770 F.3d 241, 249 (3d Cir. 2014)).
As always, where a plaintiff is proceeding pro

Se,

the complaint is “to be

liberally construed,” and, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007).
B.

Analysis

The Complaint in this case (“Cplt.”, ECF no. 1) was filed on July 19,
2016. It was accompanied by a Motion (“Motion”, ECF no.2), which I will
consider as being part of the Complaint.
The Complaint alleges claims of age or disability discrimination under
the “Civil Rights Act of 1967 and the Rehabilitation Act of 1973,” based on the

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denial of the plaintiff’s application for public housing. It seeks $900 million in
damages. (See Motion, passim.)
Records attached to the Motion suggest that the plaintiff suffers from a
number of medical conditions, was injured in 1989 and reinjured in 1998, and
is receiving Social Security disability benefits. (ECF no. 2-2) Also attached is a
copy of a dismissed housing discrimination complaint, filed with the U.S.
Department of Housing and Urban Development, Office of Fair Housing and
Equal Opportunity. (“HUD Complaint”, ECF no. 2-3, pp. 1-6)
The defendants’ motions assert that the Complaint is untimely, so I must
identi1y the relevant statute of limitations. From the context, I believe that the
plaintiff intends to assert claims under Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2000d (prohibiting discrimination in federally assisted programs),
and the Rehabilitation Act, 29 U.S.C.

§ 701 (prohibiting discrimination on the

basis of disability). Claims under Title VI borrow the two-year New Jersey
statute of limitations for personal injury actions. See Thomas v. Advance
Housing, Inc., 475 F. App’x 405, 406-07 (3d Cir. 2012) (Title VI claims have
same two-year statute of limitations as personal injury claims in New Jersey);
Yi v. Union Cty. Coil., No. 08-3207, 2009 WL 236949, at *2 (3d Cir. Feb. 3,
2009); Rose v. Seton Hall Univ., No. CV 13-7797, 2015 WL 9049438, at *3

(D.N.J. Dec. 15, 2015) (“Claims under Title VI are subject to a two-year statute
of limitations”). Claims under the Rehabilitation Act have been held subject to
either a state two—year or a federal four-year statute of limitations.’
The issue need not be settled, because this action would be untimely under
either a two-year or a four-year statute. The distinction may turn on whether the
plaintiff is invoking a portion of the Rehabilitation Act that was enacted after the
enactment of the federal four-year statute of limitations in 1990. Smith v. Twp. of
Warren, No. CV 14-7178-BRM-LHG, 2016 WL 7409952, at *12 (D.N.J. Dec. 22, 2016).
Compare Disabled in Action v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008) (“Neither Title
II of the ADA nor Section 504 of the [Rehabilitation Act] includes an express statute of
limitations. As both statutes were enacted prior to the effective date of the default
four-year statute of limitations for federal statutes, see 28 U.S.C. § 1658, we borrow
the statute of limitations of the most analogous state law cause of action.”), with
Fowler u. UPMC Shadyside, 578 F.3d 203, 208 (3d Cir. 2009) (general federal four-year
statute applies to failure-to-transfer claim, added to the Rehabilitation Act in 1992).
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According to the Complaint, the acts of discrimination occurred on
January 27, 1989, and in “June 200.” (Cplt

§ 11I.B) The latter seems to

inadvertently omit the last digit of the year; on that theory, the latest it could
be is 2009. The administrative complaint attached to the Motion alleges that
the discriminatory denials of housing took place in “1989, 1998, 19992 an[d]
the year of 2006.” (HUD Cplt.

§ 6a) As for the latest date, then, probably 2006

was intended; given the most liberal construction, however, the Complaint
alleges an act of discrimination that took place, at the latest, in 2009.
This complaint was not filed until July 19, 2016, well beyond the statute
of limitations. Accordingly, the defendants’ motions to dismiss the Complaint
are granted.
It does not appear likely that the defects of the Complaint could be cured
by amendment. Nevertheless, the Court of Appeals has instructed that an
initial dismissal should ordinarily be without prejudice, particularly in a pro se
case. Accord Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008);
Aiston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). I do not now reach
alternative grounds for dismissal, such as failure to state the elements of a
claim or failure to serve the summons and complaint upon the United States.

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Plaintiff’s Motion attaches an application for housing, date-stamped January
27, 1989, with the signature area cut off. (ECF no. 2-3, p.5) The Housing Authority of
the City of Passaic attaches a similar-looking application, with no date stamp, but
with the signature area bearing a date of March 31, 1999. (ECF no. 21-1,
p. 12).
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Despite this being a motion to dismiss, the Housing Authority of the City of
Passaic has submitted two certifications with exhibits and a “Statement of
Uncontested Facts.” I do not consider these factual submissions. Strictly as
background, however, I note that Passaic appears to acknowledge that it placed the
plaintiff on the waiting list for a housing unit, but removed the plaintiff from the
waiting list on January 7, 2010, when it conducted the required biannual review and

was unable to contact her to update her current information. (ECF no. 21-1 at pp. 14—
16)
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CONCLUSION
For the foregoing reasons, the motions to dismiss the com
plaint are
GRANTED without prejudice to the filing of a proposed amen
ded complaint
within 30 days. An appropriate Order shall accompany this
Opinion.
Dated: May 1, 2017

KEVIN MCNULTY
United States District Judge

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