Rivera et al v. U.S. Department of Housing and Urban Development

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 41 Amended Complaint filed by Ileana Rivera. Signed by Magistrate Judge Karoline Mehalchick on 8/17/2020. (cw)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ILEANA RIVERA,
Plaintiff,

CIVIL ACTION NO. 3:17-CV-01126

v.

(MANNION, D.J.)
(MEHALCHICK, M.J.)

SCRANTON HOUSING AUTHORITY,
Defendant.
MEMORANDUM OPINION
Presently before the Court is a second amended complaint filed by pro se plaintiff Ileana
Rivera seeking damages stemming from a bed bug infestation she and her daughter endured
while living in a Scranton Housing Authority (SHA)-operated apartment. (Doc. 1). The Court
has reviewed Rivera’s second amended complaint pursuant to its ongoing obligation to screen
complaints filed in forma pauperis and dismiss them if they assert frivolous or malicious actions
or fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
Having conducted its statutorily-mandated screening of the second amended complaint (Doc.
32), the Court finds that dismissal is warranted pursuant to 28 U.S.C. § 1915(e)(2).
For the following reasons, the Court finds that Rivera’s second amended complaint
does not state a claim upon which relief can be granted but that she should be given an
opportunity to file a third amended complaint.
I.

BACKGROUND AND PROCEDURAL HISTORY
In Rivera’s original complaint, which listed her daughter as a co-plaintiff, she alleged,

among other things, that (1) the SHA failed to conduct a pre-occupancy inspection of her
apartment, in violation of HUD guidelines; (2) Rivera reported her bed bug problem to the
SHA in April 2014; (3) an exterminator visited the apartment in May 2014 and made six

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follow-up visits between June and December 2014; (4) Rivera wrote to the SHA’s executive
director in June 2014 to express her desire to move because of the bed bugs; (5) Rivera advised
the SHA in July 2014 that her daughter suffered an adverse medical reaction to the bed bugs
and could no longer reside in the apartment; (6) an SHA employee told Rivera to go back to
Puerto Rico; (7) the SHA brought a landlord-tenant action against Rivera for unpaid rent in
September 2014, the SHA was awarded a judgment against Rivera for rent in arrears, and
Rivera’s appeal of that judgment was unsuccessful; 1 (8) in January 2015, the SHA notified
Rivera of its intention to terminate the lease and that she was entitled to a grievance hearing;
(9) Rivera contacted HUD in February 2015, apparently regarding a discrimination complaint
form; and (10) Rivera corresponded with the Pennsylvania Human Relation Commission,
resulting in an attempt to informally resolve the complaint through reconciliation concerning
whether there was a violation of the law. (Doc. 1, at 1-9). Based on these allegations, Rivera
asserted claims based on, or with reference to, federal statutes and regulations, including 21
C.F.R. § 10.25, 21 C.F.R. § 10.30, 24 C.F.R. § 401, 24 C.F.R. § 453, and 28 C.F.R. § 0.175,
civil rights claims regarding “Housing/Accommodations,” a cause of action under the
Administrative Procedures Act (“APA”) for “Review or Appeal of an Agency Decision,”
“Chapter 11 Administrative Procedure 581,” and “Judicial Review 701 Relief.” (Doc. 1, at 1;
Doc. 1-1; Doc. 3, at 1). She sought monetary damages stemming from HUD’s delayed
inspection and elimination of the bed bug infestation, physical and emotional injuries, and

In recommending granting HUD’s motion to dismiss the original complaint, the
Court considered the underlying proceedings of these cases. (Doc. 22, at 3); see SHA v. RiveraSantiago, Docket No. MJ-45103-LT-0000209-2014 (Magis. Dist. Ct. Lackawanna County);
SHA v. Santiago Rivera, Docket No. 2014-05499 (Lackawanna County C.C.P.).
2
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rent money paid. (Doc. 1, at 17).
The Court granted Rivera leave to proceed in forma pauperis and directed service of the
complaint upon the United States Department of Housing and Urban Development (HUD),
the sole defendant named in the original complaint. (Doc. 2; Doc. 4). HUD moved to dismiss,
that motion was granted, and Rivera was directed to file an amended complaint. (Doc. 15;
Doc. 22; Doc. 23; Doc. 24).
In November 2019, Rivera filed an amended complaint asserting claims against the
SHA arising from the bed bug infestation. (Doc. 32). Rivera named herself as the sole plaintiff,
substituted SHA for HUD as the name defendant, and alleged as follows:
Fail comply [ineligible] requirement lease part I X page 10 XII page 12
Hazardous to life health According to AUD Regulation Scranton Housing
Authority’s 400 Adam Ave Scranton PA fail under regulation Adverse
environment condition with Bed Bugs infestation on Housing Program
Harmful that spread diseases having to remove my daughter suffering
consequences Humiliation an affliction under This process, deprived of a fair
trial under lease Requirement, and judicial revision 701 relief. Interference
regarding my enquire for Bed bugs. In proportion to the Seriousness of damage,
reasonable period of time on afflicted for after standar[s] Alternative
accommodation and been harassed under lease Part I XII Authority’s
obligation. Grievance procedure to Ensure a Comprehensive investigation
Court 14 CV 05499 under Appeal commission and omission of facts. I cant
afford Rent if I lost this program. I pray for compensate my family pain and
Anguish humiliation that I brough [sic] the infestation (in one month) of rent.
Intentional infliction and emotional injury distress normal life.
(Doc. 32, at 2).
In a supplemental filing, Rivera provided a copy of a letter from the Housing Authority of the
County of Lackawanna informing Rivera of a January 16, 2020 appointment concerning, it
appears, eligibility for housing. (Doc. 35, at 2). Explaining the relevance of this letter, Rivera
wrote: “In Reference of this case I concern once again I was deprived of my right in a Housing
Authority of Lackawanna. I supply of this case in reference [illegible] was Reject my
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application without just cause I was treated hostilely again: from Housing Mr. Jackson
[illegible] denied talk with the director. Also I was homeless at this time.” (Doc. 35, at 1).
In her second amended complaint, Rivera provides the following allegations in
support of her claims:
I was deprived of fair trial process under lease 24 CFR 701 5.659 and I claim
for damage 42 USC 3544 2 sec 904 – 899 Administrative Procedure on
intentional infliction unne[c]es[s]ary. Discrimination for my family.
Plaintiff Prays.
The Adm. Of Scranton Housing Authority’s fail comply with requirements also
pretend . . . evicted under Appeal Court. 24 CFR 960.
Requirements
Lease Part I X page 8
Part I XII page 12 - Authority[’]s oblig. building code
HUD Regulation, Hazardous to life Health.
On April 18, 2014
I notify the Administrati[illegible] Tina Bartocci move for Bed Bugs infestation
in the unit
[illegible] inform to the Adm come to the office Administrati[illegible] Sandi
Gavin.
Never was notify to tenant in writing and response to my requirement of
specific grounds for any proposed adverse action regarding my inquire for BB.
Just was send inspectors and intimidate me about extermination issue and was
6 times extermination the unit also entrance the unit (paint) without prior
notification
Provoking in me pain, anguish besides interpreting that I brough[t] the problem
[illegible]. Adm refusing many times writing notice from tenant.

24 C.F.R. § 5.659 details “[f]amily information and verification” that must be
provided to HUD and sets forth “requirements for reexamination of family income and
composition in the Section 8 project-based assistance programs . . . .” 24 C.F.R. § 5.659(a).
42 U.S.C.A. § 3544 relates to “[p]reventing fraud and abuse in housing and urban
development programs” and provides for a civil cause of action based on prohibited
disclosures of information. 42 U.S.C. § 3544(c)(3)(A).
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Was thru out furniture from others unit [illegible] the issue and knowledge from
Adm. Office - The inspector bullying me Sharon Bende[illegible].
Intentional infliction
Emotional injuries and distress
Part I XII Page 12
A) Responsible within a reasonable period of time of [illegible] notice from
tenant
B) Offer standar[d] Alternative accommodation
Alternative reasonable never was available [ineligible] and under lease
Rent shall abate in proportion to the seriousness of damage omission.
(Doc. 41, at 2-4).
Attached to the second amended complaint is a copy of a June 25, 2020 letter from the
U.S. Department of Housing and Urban Development to Rivera. (Doc. 41, at 5-10). The letter
indicates that Rivera’s complaint alleging discriminatory housing practices was filed on June
22, 2020, pursuant to the Federal Fair Housing Law, 42 U.S.C. §§ 3601-3619, and informs
Rivera of various rights, procedures, and services relating to her filing of that complaint. (Doc.
42, at 5-10).
II.

STANDARD OF REVIEW
The Court is obligated, prior to service of process, to screen a civil complaint brought

in forma pauperis. See 28 U.S.C. § 1915(e)(2). The Court must dismiss a complaint if it is
frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. §
1915(e)(2)(B)(i)-(ii). The Court must assess whether a pro se complaint fails to state a claim
upon which relief may be granted, since Rule 12(b)(6) of the Federal Rules of Civil Procedure
provides that a complaint should be dismissed for “failure to state a claim upon which relief
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can be granted.” Fed. R. Civ. P. 12(b)(6). In addition, when reviewing in forma pauperis
complaints, 28 U.S.C. § 1915(e)(2)(B)(ii) mirrors the language of Rule 12(b)(6) when it
specifically enjoins the Court to “dismiss the complaint at any time if the court determines
that . . . the action . . . fails to state a claim upon which relief may be granted.” Further, every
complaint, including that filed by pro se litigant, is subject to the pleading requirements as
articulated in Rule 8(a) of the Federal Rules of Civil Procedure, which requires a “showing
that ‘the pleader is entitled to relief, in order to give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007);
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 545 (2007)).
The United States Court of Appeals for the Third Circuit has noted the evolving
standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent
years. Beginning with the Supreme Court’s opinion in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), continuing with our opinion in Phillips and culminating
recently with the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662
(2009), pleading standards have seemingly shifted from simple notice pleading
to a more heightened form of pleading, requiring a plaintiff to plead more than
the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be
granted, the court must accept as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom are to be construed in the light most favorable to the
plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
However, a court “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when
deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
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1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff
has not alleged. Assoc’d. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519,
526 (1983).
To state a valid cause of action, a plaintiff must provide some factual grounds for relief
which “requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp., 550 U.S. at 555. Indeed, “threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When considering a Rule 12(b)(6) motion, courts
must assess whether a complaint states facts upon which relief can be granted, and should
“begin by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. In addition to the facts alleged on
the face of the complaint, the Court may also consider “documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
With the aforementioned standards in mind, a document filed pro se is “to be liberally
construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully
pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers”
and can only be dismissed for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, a pro se complaint is still
subject to the pleading requirements as articulated in Rule 8(a) of the Federal Rules of Civil
Procedure.

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III.

DISCUSSION
Rivera’s amended complaint should be dismissed for failure to state a claim under

Rule 8(a) of the Federal Rules of Civil Procedure. A complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1); Scibelli
v. Lebanon Cnty., 219 F. App’x 221, 222 (3d Cir. 2007). Dismissal under Rule 8 is proper when
a complaint “le[aves] the defendants having to guess what of the many things discussed
constituted [a cause of action].” Binsack v. Lackawanna County Prison, 438 F. App’x 158, 160
(3d Cir. 2011).
Notwithstanding the Court’s liberal construction of the complaint, Rivera’s second
amended complaint fails to meet the pleading requirements of Rule 8. While the undersigned
is sympathetic to Rivera’s language barrier (see Doc. 41, at 2) and status as a pro se litigant, the
amended complaint lacks any factual allegations concerning, for example, dates of incidents
and the text of lease provisions. The pleading does not provide any meaningful opportunity
for the SHA to decipher or answer the allegations levied against it. See Twombly, 550 U.S. at
555. It is “rambling and unclear” so as to defy response. Tillio v. Spiess, 441 F. App’x 109, 110
(3d Cir. 2011); see also Earnest v. Ling, 140 F. App’x 431, 432 (3d Cir. 2005) (affirming dismissal
of “complaint [that] fail[ed] to clearly identify which parties [the plaintiff] seeks to sue”).
Additionally, though unfortunate, some of Rivera’s handwritten allegations are illegible.
Rivera’s allegations also do not give rise to a claim for which relief can be granted
under Rule 12(6)(b). She asserts, in conclusory fashion, claims for breach of lease and
infliction of emotional distress, which are state law claims that “cannot be brought in federal
court absent some basis for federal court jurisdiction.” Groves v. Wilson, 404 F. App’x 705, 707
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(3d Cir. 2010). Even if she had asserted adequate grounds for invoking federal jurisdiction
upon which the Court could exercise supplemental jurisdiction over her state law claims,
“[b]y statute, housing authorities are agencies of the Commonwealth, rather than municipal
entities, for purposes of sovereign immunity,” and thus she would need to allege facts tending
to show the non-applicability of immunity. See Simpson v. Dauphin Cty. Hous. Auth., No. 1:16CV-01747, 2017 WL 7792505, at *4 (M.D. Pa. Nov. 29, 2017) (“Thus, in this case, sovereign
immunity bars Simpson’s state-law claims for wrongful eviction, breach of lease, conversion,
intentional infliction of emotional distress, and negligence.”), report and recommendation
adopted, No. 1:16-CV-1747, 2018 WL 1050079 (M.D. Pa. Feb. 26, 2018).
Further, while Rivera continued to allege that HUD deprived her of a fair
administrative hearing, as the undersigned noted in recommending dismissal of Rivera’s
original complaint, HUD’s general investigative and enforcement policies are not reviewable
by this Court. (See Doc. 22, at 8-11). Therefore, Rivera’s second amended complaint fails to
state a claim on the ground that she was deprived of a fair administrative hearing, even if the
HUD were still a party to this action, which it is not. The SHA’s role, if any, in allegedly unfair
proceedings is also not clear.
Courts within the Third Circuit have held that tenants may “maintain a private right
of action under 42 U.S.C. § 1983” based on allegations of violations of the Housing Act,
including claimed interference with a right to a grievance procedure. See Wright v. Roanoake
Redevelopment and Housing Auth., 479 U.S. 418, 424 (1987). Slavish v. City of Wilkes-Barre, No.
3:17-CV-1468, 2018 WL 5289500, at *6 (M.D. Pa. June 14, 2018), report and recommendation
adopted sub nom. Slavish v. City of Wilkes-Barre, Pennsylvania Hous. Auth., No. 3:17-CV-1468,
2018 WL 5283437 (M.D. Pa. Oct. 24, 2018). Here, however, at least in her first amended
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complaint, Rivera alleged that she was notified of her right to a grievance procedure, and she
now alleges, not that she was denied that right, but that she was provided with an unfair
hearing. If there is an additional basis for relief that Rivera seeks to assert, the Court is unable
to discern that basis from the pleadings in her second amended complaint.
Rivera also alleges discrimination and provides a copy of her Fair Housing Act (FHA)
complaint. A plaintiff can establish an FHA claim in this Court by alleging “either that a
defendant discriminated intentionally or that a defendant’s actions had a discriminatory
effect.” El v. People’s Emergency Ctr., 438 F. Supp. 3d 283, 289-90 (E.D. Pa. 2020). In the instant
matter, aside from providing a copy of a letter acknowledging the receipt of her FHA claim,
Rivera alleges only “[d]iscrimination for my family.” Given the confusing way in which the
second amended complaint has been presented and the lack of allegations in support of this
claim, Rivera has simply fallen short of establishing a prima facie claim of discrimination.
IV.

LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment
would be inequitable, futile, or result in undue delay. Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir. 2002); Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). The Third Circuit
has also acknowledged that a district court has “substantial leeway in deciding whether to
grant leave to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). As the second
amended complaint in its current form does not clearly set forth any claims or cohesive factual
averments, dismissal is warranted. However, out of an abundance of caution, and to preserve
Rivera’s rights as a pro se litigant, the Court will grant her leave to file a single, unified, legible
third amended complaint setting forth factual allegations and legal claims in a manner that
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can be reviewed by the Court and, if necessary, answered by the SHA.
The third amended complaint must be a unified pleading that stands by itself without
reference to the original or first amended complaint. Young v. Keohane, 809 F. Supp. 1185,
1198 (M.D. Pa. 1992). The third amended complaint must be “simple, concise, and direct,”
as is required under Rule 8(d)(1) of the Federal Rules of Civil Procedure. It should specify the
claims Rivera wishes to bring and the specific facts that show the SHA’s liability for each
claim. Boyd v. New Jersey Dep't of Corr., 583 F. App’x 30, 32 (3d Cir. 2014) cert. denied, 135 S.
Ct. 2374 (2015). As a final matter, the third amended complaint should be limited to those
claims that arise out of the same transaction or occurrence, or series of transactions or
occurrences, and that have questions of law or fact in common to all claims. Failure to file a
third amended complaint in accordance with these directives may result in the
recommendation that this action be dismissed in its entirety.
V.

CONCLUSION
For the foregoing reasons, the Court finds that Rivera’s complaint (Doc. 1) fails to

state a claim upon which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 8
and Rule 12 of the Federal Rules of Civil Procedure. However, to preserve her rights as a pro
se litigant, the Court will grant Rivera leave to file a third amended complaint within thirty
(30) days of the issuance of the Order filed concurrently with this Memorandum Opinion.
An appropriate Order follows.
BY THE COURT:

s/ Karoline Mehalchick

Dated: August 17, 2020

KAROLINE MEHALCHICK
United States Magistrate Judge
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