Everett v. Housing Authority of the City of Shamokin et al

Filing 59

MEMORANDUM (Order to follow as separate docket entry).The Court will GRANT Plaintiffs Motion for Leave to File a Supplemental Affidavit. (Doc. 53). Further, the Court will DENY Plaintiffs Amended Motion for Partial Summary Judgment (Doc. 40), and will DENY Defendant SHAs Motion for Summary Judgment. (Doc. 43). An appropriate Order will be issued. Signed by Magistrate Judge Thomas M. Blewitt on 9/5/14. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRENDA EVERETT,

Plaintiff
v.

HOUSING AUTHORITY OF THE
CITY OF SHAMOKIN,

Defendant

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CIVIL ACTION NO. 4:13-CV-1515

(Magistrate Judge Blewitt)

MEMORANDUM AND ORDER
I.

BACKGROUND & PROCEDURAL HISTORY.
This action arose as a result of Plaintiff Brenda Everett’s attempt to secure housing subsidy

under the Section 8 Housing Choice Voucher (“HCV”) program for a residence in Shamokin,
Pennsylvania. Toward this end, Plaintiff, who for some period up until June 30, 2012, participated
in the HCV program administered by the Harrisburg Housing Authority (“HHA”), sought to transfer
or “port” her existing HCV from Harrisburg, Pennsylvania, to Shamokin, Pennsylvania. After
Plaintiff was issued a search voucher by Defendant Shamokin Housing Authority (“Defendant
SHA”), the port process was halted, and her search voucher was revoked, by Defendant SHA due
to their belief that Plaintiff’s adult son, who was collecting his own Section 8 housing subsidy, was
living in Plaintiff’s household in violation SHA policies and HUD regulations. This confusion
regarding Plaintiff’s household composition was compounded by the fact that the initial portability
paperwork submitted by HHA contained an error which represented that Plaintiff sought housing

for a four, rather than three, person household; an error which may have been material to whether
Plaintiff’s reported income met the payment standards for a two-bedroom unit in the receiving PHA
(Shamokin). Following an informal hearing on this issue in October of 2012, Defendant SHA
notified Plaintiff that its belief that her adult son was living in her household was incorrect.
However, Plaintiff’s search voucher was not reinstated.
Plaintiff contends that she received no notification of any further decision by Defendant SHA
to revoke her search voucher, or deny or terminate assistance. In the interim period, Plaintiff
submitted several letters to the United States Department of Housing and Urban Development
(“HUD”), and HUD investigated the circumstances of Defendant SHA’s revocation of Plaintiff’s
search voucher, and Defendant SHA’s denial or termination of Plaintiff’s Section 8 rent subsidy.
In February 2013, Plaintiff filed a complaint with Pennsylvania Human Rights Commission (“PHRC”)
alleging that Defendant SHA terminated her Section 8 assistance on the basis of racial
discrimination. After the stated administrative avenues failed to resolve the issue to Plaintiff’s
satisfaction, Plaintiff initiated the instant civil action in this federal Court.
Specifically, on June 6, 2013, Plaintiff, a resident of Shamokin, Northumberland County,
Pennsylvania, filed, through counsel, the instant civil rights action pursuant to 42 U.S.C. § 1983, in
order to enforce her rights under the United States Housing Act of 1937 (“USHA”), 42 U.S.C.
§§1437, et seq. (Doc. 1). Plaintiff raised a due process claim under the Fourteenth Amendment.
Plaintiff also raised a claim under the Housing Act. Plaintiff attached Exhibits to her Complaint.
Defendants named in Plaintiff’s Complaint were the Housing Authority of the City of Shamokin
(“SHA”) and Ronald A. Miller, Executive Director of the SHA, in his official capacity. On the same

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date as her Complaint, Plaintiff filed a motion to proceed in forma pauperis, which was later
GRANTED by the Court. (Docs. 2 & 4). Plaintiff also filed a motion for preliminary injunction
which was fully briefed by the parties, (Docs. 3, 6, 13, 16), and which was DENIED following a
hearing. (Docs. 36 & 37). In the same opinion, the Court GRANTED Defendants’ Motion for
Partial Judgement on the Pleadings (Doc. 21), which had also been fully briefed by the parties.
(Docs. 22 & 25). Pursuant to the Court’s Order, Doc. 37, Plaintiff’s claim under the U.S. Housing
Act (Count I) was DISMISSED WITH PREJUDICE, her claims against Defendant Miller in his official
capacity were DISMISSED WITH PREJUDICE, and Defendant Miller was DISMISSED FROM THE
CASE. Therefore, Plaintiff’s only remaining claim is a due process claim under the Fourteenth
Amendment of the United States Constitution brought against Defendant SHA pursuant to 42
U.S.C. § 1983.
The parties then engaged in discovery, which closed on December 31, 2013. (Doc. 38). The
Court set the dispositive motion deadline as January 31, 2014. This Court has jurisdiction over this
action based on 28 U.S.C. § 1331 and §1341(a), and the parties consented to proceed before a
U.S. Magistrate Judge for all matters pursuant to 28 U.S.C. §636(c).1 (Docs. 23 & 24).
There are currently three (3) ripe motions before the Court. On January 31, 2014, both
Plaintiff and Defendant filed cross-motions for summary judgment, (Docs. 39 & 43), Plaintiff filed
an amended motion for partial summary judgment on the same date. (Doc. 40). Plaintiff’s
amended motion for partial summary judgment on the issue of liability (Doc. 40) has been fully

The undersigned was originally assigned this case for all pre-trial matters pursuant to
28 U.S.C. § 636(b)(1)(A).
1

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briefed and is ripe for review. (Docs. 41, 42, 46, 47, 48, 52). Defendant SHA’s motion for
summary judgment (Doc. 43) has also been fully briefed and is ripe for review. (Docs. 44, 45, 49,
50, 51).
On March 28, 2014, Plaintiff filed a Motion for leave of Court to file a Supplemental
Affidavit of Cheryl Hawk along with the proposed Supplemental Affidavit. (Docs. 53 & 53-3).
Plaintiff simultaneously filed her support brief. (Doc. 54). Defendant SHA filed its opposition brief
on April 15, 2014. (Doc. 55). Plaintiff then filed her reply brief on April 29, 2014. (Doc. 56).
Therefore, Plaintiff’s Motion for leave of Court to file a Supplemental Affidavit of Cheryl Hawk
(Doc. 53) is also ripe for disposition.
The Court will first consider Plaintiff’s Motion for leave of Court to file a Supplemental
Affidavit of Cheryl Hawk. (Doc. 53).
II.

PLAINTIFF’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL AFFIDAVIT (DOC. 53)
Plaintiff requests the Court to grant her leave to file a Supplemental Affidavit of Cheryl

Hawk, the Housing Choice Voucher Program Director for HHA, so Hawk can clarify the underlying
facts of this case, including the computer coding used by HHA and HUD (such as the codes on the
HA Query Reports and the HUD computerized PIC System), and further explain the housing
voucher process and the process of porting. The Court has reviewed the proposed 12-paragraph
Supplemental Affidavit of Cheryl Hawk which is found at Doc. 53-3 and is dated March 21, 2014.
The original Affidavit of Cheryl Hawk is found at Doc. 49-1 and is dated January 10, 2014.
The Court agrees entirely with Plaintiff that the Supplemental Affidavit of Cheryl Hawk
should be allowed to try and clarify the underlying facts of this case and, to assist the Court in

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understanding the housing voucher process and the process of porting. In her Supplemental
Affidavit, Cheryl Hawk also explains why the “Code 6– end of participation” status was entered by
HHA with respect to Plaintiff’s Section 8 housing choice voucher with HHA in January of 2013.
Cheryl Hawk further explains why the Code 6 entry was a mistake, and she avers what the correct
coding status in PIC System for Plaintiff should have been, namely, “Code 5, portability move-out”
effective June 30, 2012. While Defendant SHA has opposed Plaintiff’s Doc. 53 Motion based on
the Court’s briefing schedule, its 2-page brief, for the most part, contests the averments in Hawk’s
Supplemental Affidavit and concludes that the undisputed evidence shows that Plaintiff was not an
HHA participant when she tried to port.
The Court will GRANT Plaintiff’s Motion for leave of Court to file the Supplemental Affidavit
of Cheryl Hawk (Doc. 53) and, it will consider the Supplemental Affidavit of Cheryl Hawk found
at Doc. 53-3 with respect to the cross-summary judgment motions filed by the parties. The Court
will also consider Defendant SHA’s contentions in its Doc. 55 opposition brief as to why the
averments in Hawk’s Supplemental Affidavit do not create any genuine issues of material fact in this
case and why the averments do not demonstrate that Plaintiff was an HHA participant when she
tried to port. As such, the Court will consider the Supplemental Affidavit of Cheryl Hawk in the
context of all of the other evidence submitted by the parties.
III.

CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOCS. 40 &43)
In her Amended Motion for Partial Summary Judgment, (Doc. 40), Plaintiff contends that

there is no genuine issue of material fact, and that she is entitled to judgment in her favor on the
issue of liability as a matter of law; she requests that the Court grant her motion for partial summary

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judgment and schedule a trial on the issues of injunctive and monetary relief. (Doc. 40, pp. 2, 11).
With respect to each element of her §1983 claim, Plaintiff asserts that: (1) there is no issue of
material fact that Plaintiff is a “participant” as defined by HUD regulations, and Defendant SHA’s
failure to provide written notice of its decision to terminate her assistance under the HCV program
and an opportunity to request informal review of that decision violated her Fourteenth Amendment
right to procedural due process under the U.S. Constitution as a matter of law; and (2) there is no
genuine issue of material fact that SHA Executive Director Ronald A. Miller is a policy-making
official with final authority over the termination of Plaintiff’s participation in the HCV program, and,
as a matter of law, Mr. Miller’s decision to revoke or terminate assistance under the HCV program
had the effect of an official SHA policy for the purposes of Plaintiff’s §1983 claim.
In its Motion for Summary Judgment, Doc. 43, Defendant SHA contends that: (1) there is
no material issue of fact that Plaintiff is not a “participant” as defined by HUD regulations, and
Plaintiff was not entitled to an informal hearing following Defendant SHA’s decision to deny
assistance; and, in the alternative, (2) there is no material issue of fact that Plaintiff failed to identify
any SHA custom or policy that deprived her of a due process right, and, in the absence of any such
custom or policy, Defendant SHA is not liable under §1983 for the official actions of its agents as
a matter of law.
A.

STANDARD OF REVIEW – CROSS-MOTIONS FOR SUMMARY JUDGMENT

A motion for summary judgment may not be granted unless there is not genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
A material fact is one that may affect the outcome of the suit. Justofin v. Metro. Life Ins. Co., 372

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F.3d 517, 521 (3d Cir. 2004). The moving party may demonstrate that no genuine dispute as to any
material fact exists by citing to pleadings, depositions, answers to interrogatories, admissions on file,
and any affidavits. Fed. R. Civ. P. 56(c). The reviewing court may consider any materials in the
record in determining whether there exists a genuine issue of material fact. Fed. R. Civ. P. 56(c)(3).
An issue of fact is “‘genuine only if a reasonable jury, considering the evidence presented, could
find for the nonmoving party.” Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The burden of proving lack of genuine issue of material fact is initially on the moving party.
Childers, 842 F.2d at 694 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The burden
of proof shifts to the nonmoving party, however, when the moving party demonstrates no such
genuine issue of fact. Forms, Inc. v. Am. Standard, Inc., 546 F. Supp. 314, 321 (E.D. Pa. 1982),
aff’d. mem., 725 F.2d 667 (3d Cir. 1983). The nonmoving party is required to go beyond the
pleadings and by affidavits or by “depositions, answers to interrogatories and admissions on file,”
designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324.
In determining the existence of an issue of material fact, the reviewing court must consider
the evidence in the light most favorable to the nonmoving party. Boyle v. County of Allegheny, 139
F.3d 386, 393 (3d Cir. 1998). As such, the court must accept the nonmoving party’s allegations as
true and resolve any conflicts in his or her favor. Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985),
cert. denied, 474 U.S. 1010 (1985)(quoting Goodman v. Mead Johnson & Co., 534 F.2d 566, 573
(3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977)).

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Under Rule 56, summary judgment must be entered where a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celetox, 477 U.S. at 322. Moreover, the Third Circuit
indicated that “although the party opposing summary judgment is entitled to ‘the benefit of all
factual inferences in the court’s consideration of a motion for summary judgment, the nonmoving
party must point to some evidence in the record that creates a genuine issue of material fact,’ and
‘cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.’”
Goode v. Nash, 241 Fed.Appx. 868, 869 (3d Cir. 2007)(Non-Precedential)(citation omitted).
Thus, “[s]ummary judgment is proper, when, viewing the evidence in the light most
favorable to the non-movant, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Anderson v. General Motors, 2009 WL 237247, *2 (3d
Cir. Feb. 3, 2009)(citations omitted); Page v. Trustees of Univ. of Pennsylvania, 222 Fed. Appx. 144,
145 (3d Cir. 2007) (the court must “view the facts in the light most favorable to the party opposing
the [summary judgment] motion when making [its] determination.”).
The Third Circuit has instructed that:
Cross-motions are no more than a claim by each side that it alone is entitled to
summary judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily justified or that
the losing party waives judicial consideration and determination whether genuine
issues of material fact exist.
Lawrence v. City of Phila, 527 F.3d 299, 310 (3d Cir. 2008)(quoting Rains v. Cascade Indus., Inc.,
402 F.2d 241, 245 (3d Cir. 1968)). Thus, a court applies the same legal standard to review crossmotions for summary judgment as would be applied to a motion filed by a single party. Appelmans
v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987). Accordingly, each movant must demonstrate
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that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the
court must deny the motions. Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008).2
B.

MATERIAL FACTS

Defendant SHA is a public housing authority organized under the laws of the
Commonwealth of Pennsylvania. (Doc. 41, ¶2). SHA employee Michele T. Moyer was initially
handling Plaintiff’s port-in request.

(Doc. 41, ¶12).

Ms. Moyer was separated from her

employment in or about October or 2012. (Id.). Ronald A. Miller is the executive director of
Defendant SHA, and prior to her separation, was Ms. Moyer’s immediate supervisor. (Id.).
Executive Director Miller took over Ms. Moyer’s responsibility to oversee Plaintiff’s port-in request
until a replacement was hired in November 2012.3 (Id.).
Plaintiff and her family participated in the Section 8 HCV program administered by HHA
through June 30, 2012. (Doc. 41, ¶1, Doc. 44, ¶1). Thereafter, Plaintiff moved from Harrisburg,
Pennsylvania, to the city of Shamokin and entered into a lease for an apartment located at 401 S.
5th Street, Shamokin, Pennsylvania, where she continues to reside.4 (Doc. 44 ¶3). Plaintiff

“Material facts” are those which might affect the outcome of the suit.
Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).
2

Justofin v.

In its opposition to Plaintiff’s statement of undisputed material facts, Defendant SHA asserts
that the facts related to Ms. Moyer’s separation, Executive Director Miller’s supervisory authority
and responsibilities as Executive Director are not relevant to any claim or defense in this action.
(Doc. 47, ¶12). Defendant SHA did not indicate whether the facts themselves were disputed or
not disputed.
3

In her response to Defendant SHA’s statement of material facts, Plaintiff “qualified”
Defendant SHA’s recitation of this fact by asserting that she did not move to Shamokin,
Pennsylvania, until late August 2012, as is reflected by the address used in correspondence
exchanged between the parties regarding the issuance of a search voucher in August 2012. (Doc.
49, ¶ 3; see also Doc. 49-5).
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attempted to obtain housing assistance from Defendant SHA by “porting” her voucher from HHA
to Defendant SHA. (Doc. 44, ¶4). On July 24, 2012,Defendant SHA received a pre-port inquiry
regarding a three-bedroom voucher sent by HHA on Plaintiff’s behalf. (Doc. 41, ¶4; see also Doc.
41-6). In its response, Defendant SHA provided its current payment standards, and reported that
its current policy was to absorb incoming portabilities. (Doc. 41-6). Thereafter, HHA submitted
two sets of portability paperwork on Plaintiff’s behalf. (Doc. 44, ¶4). The first submission, received
by Defendant SHA on July 24, 2012, sought to port Plaintiff’s HHA voucher for a three-bedroom
unit to accommodate a four-person household. (Doc. 44, ¶5; See also Doc. 45-2). The second
submission, received by Defendant SHA on August 9, 2012, sought to port Plaintiff’s HHA voucher
for a two-bedroom unit to accommodate a three-person household. (Doc. 44, ¶6; see also Doc.
45-3).
On August 24, 2012, Defendant SHA issued a search voucher to Plaintiff for a threebedroom unit.5 (Doc. 41, ¶6; Doc. 44, ¶9; see also Docs. 41-8 & 45-4). On the same date, Plaintiff
completed a “Request for Tenancy Approval” form which identified her target dwelling at 401 S.
5th Street, Shamokin, Pennsylvania; she then tendered the completed form to Defendant SHA.
(Doc. 41, ¶7; see Doc. 41-10). Defendant SHA scheduled, but did not complete, an inspection

In its statement of facts, Defendant SHA stated that the August 24, 2012, search voucher
was issued based on HHA’s first submission of portability paperwork which sought a three-bedroom
unit to house four people. (Doc. 44, ¶9). In her response to Defendant SHA’s statement of facts,
Plaintiff objects that the August 24, 2012, voucher was issued in response to the first submission of
portability paperwork. (Doc. 49, ¶9). In support of her position, she cites to evidence which shows
that Defendant SHA was in possession of Plaintiff’s corrected portability paperwork on August 9,
2012, approximately two weeks before the voucher was issued. (See Doc. 45-3).
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of the target dwelling.6 (Doc. 41, ¶8).
On September 5, 2012, Plaintiff received notice that Defendant SHA could not provide her
with a subsidy based on a report that Plaintiff’s adult son was living in her household in violation
of SHA policy; this notice provided Plaintiff with an opportunity to schedule an informal hearing.7
(Doc. 41, ¶10; see also Doc. 41-13). Plaintiff requested, and was granted, an informal hearing
which took place on October 9, 2012.8 (Doc. 41, ¶11). On October 17, 2012, Plaintiff received
a letter from Defendant SHA, signed by Executive Director Ronald A. Miller, stating that its decision
to deny payment of her housing subsidy, or terminate assistance, due to the presence of an illegal
occupant in her household was based on incorrect information.9 (Id.; see Doc. 41-14).
Sometime thereafter, Defendant SHA decided that Plaintiff’s household did not qualify for
the three-bedroom unit that had been initially authorized by the August 2012 search voucher.10
(Doc. 44, ¶13). Defendant SHA also determined that Plaintiff’s income, as reported by HHA,

In its opposition to Plaintiff’s statement of material facts, Defendant SHA does not dispute
that an inspection was scheduled and not completed, but contends that this is not a material fact.
(Doc. 47 ¶8).
6

In its opposition to Plaintiff’s statement of material facts, Defendant SHA does not dispute
that such a notice was sent, but disputes that it is a material fact. (Doc. 47, ¶10).
7

In its opposition to Plaintiff’s statement of material facts, Defendant SHA does not dispute
the date of the hearing, but does dispute that it is material fact. (Doc. 47, ¶11).
8

In its opposition to Plaintiff’s statement of material facts, Defendant SHA does not dispute
the October 17, 2012, decision as described by Plaintiff, but does dispute that it is a material fact.
(Doc. 47, ¶11).
9

In her opposition to Defendant SHA’s statement of facts, Plaintiff disputes Defendant
SHA’s representation as stated. Plaintiff clarifies that she received no notification of any decision
by Defendant SHA that Plaintiff’s three-person household did not qualify for a three-bedroom unit
under the PHA subsidy standards, and was not provided an opportunity to contest this decision.
(Doc. 49, ¶13).
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would result in a $0 subsidy amount. (Doc. 44, ¶14). On April 2, 2013, Plaintiff received written
notification from Defendant SHA, signed by Executive Director Miller, that the computation of her
total tenant payment exceeded the fair market rent payment standards of Northumberland County,
thus would result in a $0 subsidy. (Doc. 49 , ¶14(b); Doc. 45-10). This notification did not provide
any procedural mechanism for Plaintiff to contest Defendant SHA’s decision. (Doc. 45-10).
Prior to filing this action, Plaintiff submitted several complaints to HUD regarding Defendant
SHA’s administration of her voucher. (Doc. 41, ¶16; Doc. 44, ¶15). As a result, the Director of
the Office of Public Housing (“Director”) exchanged several letters with the Executive Director of
SHA. (Doc. 41, ¶16; Doc. 44, ¶¶ 16, 18; Doc. 41-22). In correspondence dated February 5,
2013, April 11, 2013, and May 10, 2013, after reviewing the reasons Defendant SHA gave in
support of its decision to revoke Plaintiff’s search voucher, the Office of Public Housing Director
ordered that Defendant SHA immediately reissue Plaintiff’s voucher, and informed Defendant SHA
that sanctions could be a possible consequence for a public housing authority’s persistent failure
to comply with program regulations; however, no such sanction was ever realized. (Doc. 41, ¶16;
Doc. 47, ¶16; Doc. 41-22). In its letter dated April 11, 2013, the Office of Public Housing Director
agreed with Defendant SHA that a HAP contract could not be signed for a unit where the tenant
payment was greater than gross rent, but informed Defendant SHA that this issue could be properly
handled by: (1) issuing a letter to Plaintiff informing her of the gross rent for the unit she selected;
and (2) informing Plaintiff that her voucher would be terminated if she decided to rent a unit
where her tenant payment was greater than gross rent. (Doc. 44, ¶19; Doc. 41-22).
On February 11, 2013, Plaintiff filed a pro se complaint with the PHRC alleging racial
discrimination by Defendant SHA. (Doc. 44, ¶15). After investigating Plaintiff’s allegations, the
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PHRC determined that Plaintiff’s complaint should be dismissed. (Doc. 44, ¶17).
On September 20, 2013, after the commencement of this action, Plaintiff received a “Notice
of Termination of Section 8 Rental Assistance” from Defendant SHA which explained why the
search voucher issued in August 2012, should not have been processed and advised her of her
right to request an informal hearing pursuant 20 C.F.R. §982.555. (Doc. 41, ¶15; Doc. 41-20).
Plaintiff rejected this offer for an informal hearing. (Doc. 44, ¶27).
Defendant SHA has provided a Housing Authority Query Report dated February 19, 2014,
which reflects that Plaintiff’s status in the HCV program changed to “Code 6" or “end of
participation” effective June 30, 2012. (Doc. 47-1). Plaintiff has provided a Housing Authority
Query Report dated February 27, 2014, which reflects that Plaintiff’s status in the HCV program
changed to “Code 5" or “portability-move out” effective June 30, 2012. (Doc. 52-1).
IV.

CROSS-MOTIONS FOR SUMMARY JUDGMENT DISCUSSION.
In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements:

(1) that the conduct complained of was committed by a person acting under color of state law; and
(2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured
by the law or the Constitution of the United States. Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir.
1993)(quoting Parratt v. Taylor, 451 U.S. 527, 535(1981) overruled on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986)). Thus, Ҥ1983 authorizes an injured Plaintiff to assert a claim for
relief against a person who violated the Plaintiff’s federally protected rights while acting under color
of state law.” Swift v. McKeesport Housing Auth., 726 F.supp.2d 559, 571 (W.D.Pa. 2010).
When analyzing a §1983 claim alleging a state actor’s failure to accord appropriate levels
of procedural due process, under the second element discussed above, the Court’s inquiry is
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twofold. First, the Court must determine whether the asserted interest is encompassed within the
Fourteenth Amendment’s protection of life, liberty, or property; if so, the Court must then consider
whether the procedures available provided Plaintiff with adequate due process. Alvin v. Suzuki, 227
F.3d 107, 116 (3d Cir. 2000); Swift v. McKeesport Housing Auth., 726 F.Supp.2d at 574. “In order
to state a claim for failure to provide due process, a Plaintiff must have taken advantage of the
processes that are available to him or her, unless those processes are unavailable or
patentlyinadequate.”
1.

Alvin v. Suzuki, 227 F.3d at 116.

THERE IS NO GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER PLAINTIFF HAD
A VALID PROPERTY INTEREST IN HER SECTION 8 VOUCHER ON JULY 24, 2012
The Fourteenth Amendment provides that the State may not “deprive any person of life,

liberty, or property without due process of law.” U.S. Const. amend. XIV. A procedural due process
claim under the Fourteenth Amendment has two steps. Zehner v. Pa. Board of Probation and
Parole, et al., 2014 WL 1235998, *3 (W.D.Pa.)(citing Board of Regents of State Colleges v. Roth, 408
U.S. 564, 571 (1972)); see also Alford v. Pa. Dept. of Corrections, 2014 WL 310100, *2 (M.D.Pa.
Jan. 28, 2014)(citations omitted).
In Zehner, 2014 WL 1235998, *3, the Court stated:
“First, the court must determine whether there exists a liberty or property interest
which has been interfered with by the state. Kentucky Dept. of Corr. v. Thompson,
490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citing Board of Regents,
408 U.S. at 571). Second, and if and only if a petitioner establishes the existence of
a protected interest, the court must examine whether the procedures attendant upon
that deprivation were constitutionally sufficient. Id. (citing Hewitt v. Helms, 459 U.S.
460, 472, 103 S.Ct. 864, 74 L.Ed. 2d 675 (1983)).”

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Property interests are created, and their dimensions defined, by the existing rules of
understandings that stem from an independent source – such as state law rules or understandings
that secure certain benefits and support claims of entitlement to those benefits. Bd. of State
Colleges v. Roth, 408 U.S. 564, 577 (1972). To have a property interest in a benefit, such as a
Section 8 rent subsidy voucher, an individual must have more than an abstract need or desire for
it. Id. Instead, the individual must have a legitimate claim of entitlement to it. Id.
The Court in Swift v. McKeesport Housing Auth., 726 F.Supp.2d at 574, stated, “Plaintiff’s
Section 8 voucher, like welfare benefits, is a property interest for purposes of due process.”
(citation omitted). In determining whether a Plaintiff has been deprived of her property sans due
process “it is necessary to ask what process the State provided, and whether it was constitutionally
adequate.”

Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975 (1990). “[A] pre-deprivation

hearing is generally required before a state seizes a person’s property ... .” Swift v. McKeesport
Housing Auth., 726 F.Supp.2d at 574 (quoting Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 138
(3d cir. 2010)).
In the present case, Plaintiff Everett asserts that, as a “participant” of the Section 8 HCV
program, she had a valid property interest when she sought to “port” her voucher to Shamokin.
Defendant SHA asserts that Plaintiff’s participation in the Section 8 HCV program ended on June
30, 2012, thus she was an “applicant,” rather than a “participant,” in the Section 8 HCV program
when she submitted her “port-in” request to Shamokin. Therefore, Defendant SHA contends that
Plaintiff had no valid property interest in her expired Section 8 voucher.
Plaintiff supports her assertions that she had a valid property interest at stake by pointing
out that an HA Query Report performed in October 2013, and, most recently, on February 27,
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2014, reflects that her voucher had a “portability” or “move out” status. (Doc. 49-2, Doc. 52-1).
Plaintiff also point to the Affidavit of Cheryl A. Hawk, an employee of HHA, who reported that on
June 5, 2012, before the cessation of subsidy payments on June 30, 2012, HHA properly issued
Plaintiff “port vouchers.” In March 2014, as discussed above, Ms. Hawk completed a second
Affidavit (Doc. 53-3) which is the subject of Plaintiff’s Motion for Leave to file Supplemental
Affidavit. (Doc. 53). As mentioned, the Court will grant Plaintiff’s Doc. 53 Motion, and will
consider Ms. Hawk’s Supplemental Affidavit. (Doc. 53-3). In her Supplemental Affidavit, Ms.
Hawk explained that the duration of “port vouchers” typically extends beyond periods of payment
of subsidy so that a person has ample time to find another landlord willing to accept payment of
subsidy under the HCV program and, to allow for the negotiation and execution of a HAP contract
between the landlord and Housing Authority. (Doc. 53-3). Ms. Hawk also explained that at the
time Plaintiff’s initial and amended port requests were received by Defendant SHA, Plaintiff was,
and thereafter remained, a “participant” of the Harrisburg Housing Authority’s HCV program
seeking to move with subsidy. (Id.). Furthermore, the Court notes that the written “Notification
of Termination of Section 8 Rental Assistance” that Defendant SHA sent to Plaintiff in September
2013, three (3) months after the instant Complaint was initiated in this federal Court, states that
Plaintiff had a “right to an informal hearing pursuant to the procedures set forth in 24 C.F.R.
§982.555,” a HUD regulation which Defendant admits, pertains only to “participant families.”
(Doc. 45-14).
In support of its position that Plaintiff had no valid property interest in her “expired” Section
8 voucher, Defendant SHA points to an HA Query, generated in February 19, 2014, which reflects
that Plaintiff’s participation in the Section 8 HCV program ended effective June 30, 2012. (Doc.
16

47-1).
Because the parties have each provided some measure of evidence to support their
diametrically opposed positions on the issue of whether Plaintiff was a “participant” in the Section
8 voucher program as of July 24, 2012, the Court finds that an issue of fact exists as to whether
Plaintiff was a “participant” at that time. The Court now turns to the question of whether this issue
of fact is material to the determination of whether Plaintiff had a valid property interest in her
Section 8 voucher as of July 24, 2012.
As stated, Defendant SHA contends that Plaintiff was an “applicant” of the Section 8 HCV
program, rather than a “participant” as of July 24, 2013, because its most recent HA Query
reflected that Plaintiff’s voucher had expired on June 30, 2012. Neither party disputes that a
“participant” in a Section 8 rent subsidy voucher program has a valid property interest in their
voucher. As stated above, a Section 8 voucher “is a property interest for purposes of due process.”
Swift v. McKeesport Housing Auth., 726 F.Supp.2d at 574. However, Defendant SHA contends
that, unlike a participant, an “applicant” does not have a valid property interest in a Section 8
voucher. Though the Third Circuit has not issued a dispositive ruling on this issue, it did, on one
occasion, affirm a district court decision that the Fourteenth Amendment due process rights of
Section 8 applicants deemed ineligible to receive assistance under an arrearage policy were
adequately protected by notice and hearing provisions of that policy. See Vandermark v. Housing
Auth. of the City of York, 663 F.2d 436, 442 (3d. Cir. 1981). The Seventh Circuit has construed
Vandermark as a tacit recognition by the Third Circuit of the existence of a valid property interest
for applicants under a Section 8 program. See Eidson v. Price, 745 F.2d 453, 461 n. 6 (7th Cir,
1984). This approach was also embraced by the District of New Jersey in Baldwin v. Housing Auth.
17

Of City of Camden, NJ. 278 F.Supp.2d 365, 378 (D.N.J. 2003)(finding that a rejected applicant of
the HCV program has a sufficient property interest in his or her receipt of federal vouchers to
support a Fourteenth Amendment procedural due process claim against a public housing authority
for the violation of his or her rights where his or her application for eligibility is denied). Bearing
these principles in mind, the Court finds that, as a matter of law, Plaintiff Everett would have a
sufficient property interest in a Section 8 rent subsidy voucher as either a “participant” or
“applicant.” Therefore, any dispute of fact as to whether Plaintiff Everett was an “applicant” or
“participant” is not material to the determination of whether she had a protected property interest
in a Section 8 rent subsidy voucher.
2.

THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER PLAINTIFF
WAS PROVIDED “PROMPT” NOTIFICATION AND AN OPPORTUNITY FOR
MEANINGFUL REVIEW OF DEFENDANT SHA’S DECISION TO TERMINATE OR
DENY HER RENT SUBSIDY

Defendant SHA argues that Plaintiff’s claim that she was denied meaningful review of
Defendant SHA’s decision to deny or terminate assistance under the HCV program fails for two
reasons. First, Defendant asserts that, as an “applicant,” Plaintiff Everett was not entitled to an
informal hearing under the HUD regulations. Second, Defendant SHA argues that Plaintiff is
precluded from prevailing on her due process claim because she did not avail herself of Defendant
SHA’s offer of an informal hearing in its September 20, 2013 notice of termination, and because
she received adequate process review of her claims when she requested a HUD inquiry.11

The Court finds Defendant SHA’s assertion that Plaintiff’s PHRC complaint and request for
HUD intervention were adequate post-deprivation remedies to be unpersuasive as neither of these
avenues were consistent with the post-deprivation procedures outlined in the HUD regulations and,
the due process violations alleged herein were not addressed during either proceeding.
11

18

As mentioned, in determining whether a Plaintiff has been deprived of her property without
due process “it is necessary to ask what process the State provided, and whether it was
constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975 (1990). When
a State deprives a person of his or her property, in some cases, “a statutory provision for a
postdeprivation hearing, ... , satisfies due process.” Id. at 128.
Pursuant to 24 C.F.R. §982.555, the PHA must give a participant family an opportunity for
an informal hearing to consider whether the following PHA decisions relating to the individual
circumstances of a participant family are in accordance with the law, HUD regulations, and PHA
policies:
(i) A determination of the family’s annual adjusted income, and the use of such
income to compute the housing assistance payment.
(ii) A determination of the appropriate utility allowance (if any) for tenant-paid
utilities from the PHA utility allowance schedule.
(iii) A determination of the family unit size under the PHA subsidy standards.
(iv) A determination that a certificate program family is residing in a unit with a larger
number of bedrooms than appropriate for the family unit size under the PHA subsidy
standards, or the PHA determination to deny the family’s request for an exception
from the standards.
(v) A determination to terminate assistance for a participant family because of the
family’s action or failure to act (see §982.552).
(vi) A determination to terminate assistance because the participant family has been
absent from the assisted unit for longer than the maximum period permitted under
PHA policy and HUD rules.
Furthermore, 24 C.F.R. §982.555(c) provides that with respect to paragraphs (i), (ii), and (iii),
the PHA must notify the participant family that they may ask for explanation of the basis for the
determination, and may request an informal hearing. 24 C.F.R. §982.555(c) also provides that,
19

with respect to paragraphs (iv), (v), and (vi), the PHA must provide prompt written notice to the
family containing a brief statement of reasons for the decision, provide an opportunity to request
and informal hearing and a deadline for any such request.
Pursuant to 24 C.F.R. §982.554(a), the PHA must:
[G]ive an applicant for participation prompt notice of a decision denying assistance
to the applicant. The notice must contain a brief statement of the reasons for the
PHA decision. The notice must also state that the applicant may request an informal
review of the decision and must describe how to obtain the informal review.
(emphasis added); see also 24 C.F.R. §982.5 (“Where part 982 [of Title 24 of the Code of Federal
Regulations] requires any notice be given by the PHA to a family or the owner, the notice must be
in writing.”).
Plaintiff argues that there is no genuine dispute that Defendant SHA revoked her search
voucher and terminated her Section 8 assistance, and failed to provide “timely” or “prompt”
notification of its decision to do so, or an opportunity to request an informal hearing, as required
pursuant to 24 C.F.R. §982.555(a) and C.F.R. §982.555(c)(2). On the other hand, Defendant SHA
argues that there is no genuine dispute that Plaintiff was not a “participant” in HCV voucher
program at the time Defendant SHA issued the search voucher, and therefore Plaintiff was not
entitled to an informal hearing pursuant to 24 C.F.R. §982.555.
Defendant SHA’s position regarding Plaintiff Everett’s legal status under the HUD regulations
appears to be a fluid concept. Defendant’s confusion on this issue is highlighted by its own
documents. In Defendant SHA’s opposition to Plaintiff’s motion for summary judgment, it takes
the position that Plaintiff is a “voucher holder” as defined by 24 C.F.R. §982.4. (Doc. 48 p. 1-2).
Next, in its own motion for summary judgment, Defendant SHA asserts that Plaintiff is an

20

“applicant” under the HUD regulations, and therefore is entitled to an informal review process
pursuant to 24 C.F.R. §982.554. (Doc. 45 p. 8). Last, Defendant SHA appended a letter from
Executive Director Miller to Plaintiff dated September 20, 2013, to its brief entitled “Notice of
Termination of Section 8 Rental Assistance” wherein Miller advised Plaintiff of her right, as a
participant, to an informal hearing under 24 C.F.R. §982.555. (Doc. 45-14).
Furthermore, even if Defendant SHA was correct in its assertion that Plaintiff was an
applicant entitled to informal review, rather than participant, entitled to an informal hearing, there
is no dispute that Plaintiff was entitled to prompt notification of Defendant SHA’s decision to
“deny” or “terminate” her assistance and an opportunity to request some post-decision review
process as provided for in the HUD regulations.
Fourteen months after HHA submitted a portability request to Defendant SHA, and three
months after the instant civil action was filed by Plaintiff in this federal Court, Defendant SHA did
provide written notice to Plaintiff consistent with 24 C.F.R. §982.555(c)(2); this notice advised
Plaintiff of her right to request an informal hearing within ten (10) days. (Doc. 45-14). To the
extent Defendant argues that Plaintiff cannot prevail on her due process claim because she failed
to avail herself of Defendant SHA’s September 20, 2013 offer of a second administrative hearing,
the Court disagrees.
“In procedural due process claims, the deprivation by state action of a constitutionally
protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is
unconstitutional is the deprivation of such interest without due process of law.”
Burns v. Pa. Dept. of Corrections, 544 F.3d 279, 283-84 (3d Cir. 2008)(quoting Zinerman v.
Burch, 494 U.S. 113, 125 (1990)).

For this reason, “a procedural due process violation is
21

complete at the moment an individual is deprived of a liberty or property interest without being
afforded the requisite process.” Id.
Based on the facts of the instant case, it is clear that at some time between October 17,
2012, and September 20, 2013, Defendant SHA decided to revoke Plaintiff’s search voucher
and to deny or terminate Plaintiff’s assistance effective as of June 30, 2012. Furthermore, it is
clear that Defendant SHA did not provide written notice of, or an opportunity to contest, its
decision to revoke Plaintiff’s search voucher or of its decision to deny or terminate Plaintiff’s
assistance as outlined in 24 C.F.R. §§ 982.554 or 982.555 until September 20, 2013. Pursuant
to the HUD regulations, Plaintiff was entitled to “prompt” written notice of Defendant’s
decision. The applicable regulations, however, do not provide any particular time frame within
which notice must be provided. Further, the Court points out that the parties have also failed to
show any SHA policy regarding the deadline for the provision of a notice of denial or
termination of assistance to the applicant or participant.
The Court finds that Plaintiff has presented sufficient facts to state a cognizable due
process claim under the Fourteenth Amendment. See Swift v. McKeesport Housing Auth., 726
F.Supp.2d at 574. The Court also finds that there is a genuine issue of material fact as to if or
when the due process violation which Plaintiff alleges became complete. Further, because the
Court is unable to ascertain if or when the alleged due process violation became complete, the
Court finds that there is a genuine issue of material fact as to whether the September 25, 2013
notification was “prompt.” Likewise, because there is a genuine issue of material fact as to
whether Defendant SHA’s September 20, 2013 notice of termination and offer of an informal
hearing was made available to Plaintiff before the completion of the alleged due process
22

violation, the Court is unable to decide the issue of whether Plaintiff’s refusal to avail herself of
Defendant SHA’s September 2013 offer of an informal hearing thwarts her due process claim.
See Alvin, 227 F.3d at 118 (“When access to procedure is absolutely blocked or there is
evidence that the procedures are a sham, the plaintiff need not pursue them to state a due
process claim.”).
3.

THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER SHA
EXECUTIVE DIRECTOR MILLER ACTED AS A POLICYMAKER WHEN HE
DENIED OR TERMINATED PLAINTIFF’S ASSISTANCE WITHOUT NOTICE OR
AN OPPORTUNITY FOR A HEARING, AND CHOSE NOT TO REISSUE
PLAINTIFF’S SEARCH VOUCHER

To the extent Plaintiff named SHA as a Defendant and raises a constitutional claim
against this municipal corporation under §1983,12 she must set forth facts showing that a custom
or policy of this municipal housing authority deprived her of a constitutional property right
under Monell v. Department of Social Services, 436 U.S. 658 (1978). Thus, the issue is whether
Plaintiff Everett has presented enough evidence to proceed on her due process claim against
Defendant SHA based on a theory of municipal liability. “Plaintiff must show that the
deprivation of [her] benefits without due process was undertaken pursuant to an official policy
or an unofficial custom of [Defendant SHA].” Swift v. McKeesport Housing Auth., 726
F.Supp.2d at 574. To do so, Plaintiff must prove either that (1) the alleged action by the
housing authority “implements or executes a policy, statement, ordinance, regulation, or
decision officially adopted and promulgated by the body’s officers,” or that (2) constitutional

See Swift v. McKeesport Housing Authority, 2009 WL 3856304, *7 (W.D.Pa. Nov. 17,
2009)(Court held that a housing authority created under the PA Housing Authorities Law, 35 Pa.
Stat. §1541 et seq., was a municipal corporation which could be sued under §1983).
12

23

deprivations took place “pursuant to governmental ‘custom’ even though such a custom has not
received formal approval” from official municipal decisionmakers. Monell v. Department of
Social Services, 436 U.S. at 690-91. The former theory is often referred to as a “policy” while
the latter is referred to as a “custom.” Here, Defendant SHA contends that it is entitled to the
grant of summary judgment because Plaintiff has failed to identify any SHA custom or policy
that deprived her of her constitutional property right. In response, Plaintiff argues that
municipal liability under §1983 attached to Executive Director Miller’s “policy” decision to deny
or terminate without providing prompt notice or an opportunity for post-decision review.
When a single decision is the basis of the alleged constitutional violation, however,
“municipal liability under §1983 attaches where – and only where – a deliberate choice to
follow a course of action is made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in question.” Pembaur
v. City of Cincinnati, 475 U.S. 469, 483-84 (1986). Furthermore, “[m]unicipal liability attaches
only where the decisionmaker possesses final authority to establish municipal policy with
respect to the action ordered.” Id. at 481-82. Thus, in order to establish Defendant SHA’s
§1983 liability under this theory, it is incumbent upon Plaintiff Everett to show that a
policymaker (i.e., an SHA employee with policymaking authority) is responsible for the violation
of her due process rights. Swift v. McKeesport Housing Auth., 726 F.Supp.2d at 576; Solomon
v. Phila. Housing Auth., 143 Fed.Appx. 447, 456 (3d Cir. 2005).
In Swift v. McKeesport Housing Auth., 726 F.Supp.2d at 576-77, the Court stated:
“[I]t is plain that municipal liability may be imposed for a single decision by
municipal policymakers under appropriate circumstances.” Pembaur, 475 U.S.
at 480, 106 S.Ct. 1292. Municipal liability, however, only attaches “where the
24

decisionmaker possesses final authority to establish municipal policy with
respect to the action ordered.” Id. at 481, 106 S.Ct. 1292. Whether an official
had final policymaking authority is determined by state law. Id. at 483, 106
S.Ct. 1292.
“Under the Pennsylvania Housing Authorities Law, 35 Pa. Cons.Stat. §1541, et seq., a
housing authority is governed by a Board of Commissioners which has final policymaking
authority. See 35 Pa. Cons.Stat. §1545 (2003); 35 Pa. ConsStat. §1547 (2003)(“An authority
may delegate to one or more of its agents or [employees] such of its powers as it shall deem
necessary to carry out the purposes of this act, subject always to the supervision and control of
the Authority.”)(emphasis added).”

Solomon v. Phila. Housing Auth., 143 Fed.Appx. at 456-

57. The Court finds that the evidence is disputed as to whether SHA Executive Director Miller
was a policymaker and whether he was sufficiently involved regarding the denial or termination
of Plaintiff’s Section 8 assistance.
In support of her position, Plaintiff points out that Executive Director Miller was the
immediate supervisor of Michele T. Moyer, the SHA employee who initially handled Plaintiff’s
port-in request. Furthermore, Executive Director Miller signed off on all correspondence
between Plaintiff and Defendant SHA, and between Defendant SHA and HUD, regarding the
denial or termination of her Section 8 assistance.
Defendant has failed to cite to any evidence to confirm or deny that Executive Director
Miller acted as an SHA “policymaker” when he denied, or terminated, Plaintiff’s Section 8
assistance, or when he made the deliberate choice not to reissue Plaintiff’s search voucher as
directed by the Director of the Office of Public Housing in February, April, and May of 2013.
(Doc. 41-22). The Court finds that the evidence cited by Plaintiff has created a genuine issue of

25

material fact as to whether Executive Director Miller acted as a policymaker in this instance.
Therefore, the jury must determine whether the decision regarding the denial or termination of
Plaintiff’s Section 8 assistance can be ascribed to Defendant SHA itself as an official policy or
practice under Monell, and whether Defendant SHA can be held liable with respect to Plaintiff’s
due process claim.
Accordingly, the Court finds that there are genuine issues of material fact as to:
(1) whether the procedures made available by Defendant SHA prior to the completion of the
alleged constitutional violation provided Plaintiff with adequate due process; and, (2) whether
Executive Director Miller was acting as a “policymaker” in this instance. Therefore, the parties’
cross-motions for summary judgment (Docs. 40 & 43) will be DENIED.
V.

CONCLUSION.
Based on the foregoing, the Court will GRANT Plaintiff’s Motion for Leave to File a

Supplemental Affidavit. (Doc. 53). Further, the Court will DENY Plaintiff’s Amended Motion
for Partial Summary Judgment (Doc. 40), and will DENY Defendant SHA’s Motion for
Summary Judgment. (Doc. 43).
An appropriate Order will be issued.

s/ Thomas M. Blewitt
THOMAS M. BLEWITT
United States Magistrate Judge
Dated: September 5, 2014