Brown v. West Warwick Housing Authority et al

Filing 26

MEMORANDUM AND ORDER granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 20 Motion to Dismiss. So Ordered by Chief Judge William E. Smith on 6/10/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
WEST WARWICK HOUSING AUTHORITY,
)
CINDY WHITE OVERTON and RICHARD
)
LECO, individually and
)
in their capacities as partners of )
D&V/MAINSAIL, KATIE FAGAN, and
)
MARC STARLING, individually and in )
his official capacity as executive )
director of the West Warwick
)
Housing Authority,
)
)
Defendants.
)
___________________________________)
LEVELAND BROWN,

C.A. No. 15-437 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
This case arises from attempts by the West Warwick Housing
Authority

(“WWHA”)

and

D&V/Mainsail

(“D&V”)

—

a

former

WWHA

contractor — to revoke Plaintiff Leveland Brown’s (“Plaintiff”)
Section 8 housing voucher.

According to Plaintiff’s Amended

Complaint, Defendants’ revocation attempts violated a number of
federal

statutes

constitutional
extortion.

and

rights,

regulations,
defamed

infringed

Plaintiff,

on

and

Plaintiff’s
amounted

to

Defendants have moved to dismiss each of the claims

against them.

(See ECF Nos. 18, 20.)

For the following reasons,

Defendants’ motions are GRANTED IN PART and DENIED IN PART.

I.

Background 1
Plaintiff has been a member of the Section 8 voucher program

since 2003.

(Am. Compl. ¶ 50, ECF No. 16.)

In May 2015, Plaintiff

started a food truck business, Sweet Daddy’s Chicken, with the
help

of

Dianne

Cummiskey,

who

agreed

to

finance

Plaintiff’s

venture. (Id. ¶¶ 59, 66.) Anticipating the start of his business,
Plaintiff inquired at his annual WWHA income certification meeting
about the proper way to report the food truck to WWHA.
63.)

(Id. ¶

According to his Senior Housing Specialist, he would only

need to report the business when he started to receive an income
from it.

(Id. ¶ 64.)

Since Plaintiff had not earned any net

income from the business, he never disclosed it to WWHA.

(Id. ¶

66.)
On June 17, 2015, someone alerted Katie Fagan, a former D&V
employee assigned to WWHA, that Plaintiff was defrauding WWHA
through the food truck.

(Id. ¶¶ 67-69.)

Fagan raised the

allegation with D&V, and they agreed on a plan to handle it.
¶ 70.)

(Id.

Fagan called Plaintiff and asked him to come to WWHA’s

office; when Plaintiff refused, Fagan, with a WWHA employee,
confronted Plaintiff at his food truck.

(Id. ¶¶ 73-74.)

In front

of Plaintiff’s customers and neighbors, Fagan and the employee

1

Since this is a motion to dismiss brought under Fed. R. Civ.
P. 12(b)(6), the Court treats the factual allegations set forth in
the Amended Complaint as true. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-56 (2007).
2

accused

Plaintiff

of

committing

fraud,

threatened

to

have

Plaintiff thrown in jail, and demanded Plaintiff relinquish his
voucher.

(Id. ¶ 74.)

To end the confrontation, Plaintiff agreed

to meet with Fagan at WWHA’s office later that afternoon.
77.)

(Id. ¶

At the appointment, Plaintiff claims Fagan and a WWHA

employee continued to threaten him with jail and demand that he
relinquish his housing voucher. (Id. ¶¶ 77-81.) Scared of Fagan’s
threats,

Plaintiff

complied

relinquish his voucher.

with

her

request

and

agreed

to

(Id. ¶ 82.)

Two days later, however, Plaintiff had a change of heart and
sent WWHA a letter revoking his relinquishment.

(Id. ¶ 83.)

WWHA

responded by sending Plaintiff a letter informing him that it was
terminating

his

voucher

because

he

“earned

income

that

[he]

knowingly did not report to [the WWHA], income from Sweet Daddy’s
Chicken.”

(Id. ¶ 84.)

Plaintiff requested and received an

informal hearing to dispute the termination.

(Id. ¶¶ 86-87.)

The

hearing officer upheld the termination and WWHA stopped paying
Plaintiff’s voucher on September 30, 2015.

(Id. ¶ 119.)

As a

result, Plaintiff paid the entire amount of his rent for the month
of October.

(Id. ¶ 120.)

On November 4, 2015, after Plaintiff filed the present action,
WWHA’s new Executive Director, Mark Starling, informed Plaintiff
that WWHA had reinstated his voucher effective November 1.
¶ 122.)

(Id.

WWHA also scheduled an interim examination to verify
3

Plaintiff’s income for November 9.

(Id.)

Plaintiff’s attorney

arranged for the examination to be rescheduled twice.
123, 127-28.)

(Id. ¶¶

Nevertheless, on November 24, 2015, WWHA informed

Plaintiff that his voucher would be suspended effective December
1, 2015 due to his failure to appear for the interim examination.
(Id.

¶

129.)

Despite

this

notice,

WWHA

continues

to

pay

Plaintiff’s voucher.
II.

Standard of Review
When considering a motion to dismiss under Fed. R. Civ. P.

12(b)(6), courts must view the facts contained in the pleadings in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor.
Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).

Perez-Acevedo v.
To survive the

motion, however, plaintiff must present “factual allegations that
‘raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true.’”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Put another way, “[w]hile detailed factual allegations are not
required, ‘a formulaic recitation of the elements of a cause of
action’ is not sufficient.”

DeLucca v. Nat’l Educ. Ass’n of Rhode

Island, No. C.A. 13-155L, 2015 WL 2037547, at *1 (D.R.I. May 5,
2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

4

III. Discussion
A.

Plaintiff’s claims are not moot.

Although Defendants’ briefs are not pillars of clarity, they
appear to argue that Counts 1, 2, 7 and 8 should be dismissed on
mootness grounds.

Specifically, Defendants assert that Plaintiff

has already received the relief he requests – reinstatement of his
voucher and reimbursement for any rent he paid due to his voucher
revocation.

Defendants’ assertions are incorrect.

The Amended Complaint alleges that (1) Plaintiff’s voucher
was revoked effective September 1, 2015; (2) Plaintiff paid his
full rent for September because his voucher was revoked; (3)
Plaintiff’s

voucher

was

reinstated

on

November

1,

2015;

(4)

Plaintiff’s voucher was suspended again on December 1, 2015; and
(5)

notwithstanding

this

Plaintiff’s voucher.

suspension,

WWHA

continues

to

pay

Based on these allegations, the Amended

Complaint alleges at least two injuries that this Court can remedy:
Plaintiff’s lost rent for September 2015 and the uncertain status
of Plaintiff’s voucher.

Thus, Plaintiff has alleged an “actual

injury traceable to the defendant[s] and likely to be redressed by
a favorable judicial decision.”

Johansen v. United States, 506

F.3d 65, 69 (1st Cir. 2007) (quoting Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 477 (1990)).

Plaintiff’s claims are not moot.

5

B.

Plaintiff has pleaded sufficient facts to support his
discrimination claims.

Defendants

also

argue

that

Plaintiff’s

conspiracy

claim

(Count 3) and FHA claim (Count 6) fail because Plaintiff does not
allege facts to support his discrimination allegations.

Though a

close call, Defendants’ argument fails.
Defendants focus on Plaintiff’s allegations that he is black,
disabled,

and

lost

characteristics. 2

his

housing

voucher

because

of

these

Defendants correctly argue that if Plaintiff’s

Amended Complaint ended with these allegations, he would have
failed to state a claim upon which relief could be granted.
are

the

type

of

allegations

that

merely

parrot

the

They

elements

required to make a claim for discrimination, which is insufficient

2

Defendants also argue that Plaintiff has not adequately
pleaded that he is, in fact, disabled.
In support, Defendants
point out that the Plaintiff pleads two facts relating to his
disability: that he is disabled and that “because of his
disability, he receives income from the Social Security
Administration.” Defendants argue that these facts are conclusory
and do not establish Plaintiff’s disability.
In support,
Defendants cite to Jobst v. Camelot Vill. Ass’n, Inc., 94 F. App’x
356 (7th Cir. 2004), which held that receipt of social security
benefits does not conclusively establish a disability.
Id. at
357-58.
But, Jobst was decided in the context of a motion for
summary judgment. “As a general matter, in most cases, individuals
who meet the definition of disability for purposes of receiving
SSI or SSDI benefits also qualify as disabled under the federal
disability statutes,” Sinisgallo v. Town of Islip Hous. Auth.,
865 F. Supp. 2d 307, 338 (E.D.N.Y. 2012) (internal citations
omitted), and this must be true at least for purposes of deciding
a 12(b)(6) motion. Thus, while the outcome might differ at summary
judgment, at the pleading stage, Plaintiff has plausibly alleged
he is disabled.
6

to state a plausible claim.
CA

13-785S,

2014

WL

See Reilly v. Cox Enters., Inc., No.

4473772,

at

*8

(D.R.I.

Apr.

16,

2014)

(conclusory allegation that plaintiff was fired not for the reasons
given by Defendants, but because of her age and gender, and that
she

was

treated

differently

than

similarly-situated

male

counterparts amounted to “formulaic recitation[s]” of elements of
the claim insufficient to survive a motion to dismiss); Williams
v. Shinseki, Civil Action No. 11-40030-TSH, 2013 WL 1336360, at *4
(D. Mass. Mar. 29, 2013).
other

facts

contained

But Defendants’ argument overlooks the

in

Plaintiff’s

Amended

Complaint:

that

Defendants (1) did not follow their regulations and procedures
when they revoked Plaintiff’s voucher; and (2) changed the rules
they applied to Plaintiff’s voucher when they revoked his voucher
for not reporting his food truck business.

At this early stage in

the proceedings, drawing all inferences in Plaintiff’s favor,
these

additional

facts

push

Plaintiff’s

discrimination

claims

across the line — albeit only slightly — from being merely possible
to plausible.

See Mayale-Eke v. Merrill Lynch, 754 F. Supp. 2d

372, 382-83 (D.R.I. 2010) (allegations that defendants imposed new
performance standards on plaintiff not imposed on other non-Muslim
employees and was terminated for not meeting those new standards
entitled plaintiff to an inference supporting his discrimination
claim at the pleading stage); see also Doe v. Brown Univ., C.A.
No. 15-144 S, 2016 WL 715794, at *7-8 (D.R.I. Feb. 22, 2016)
7

(distinguishing

between

evidence

required

for

discrimination

claims to survive a motion to dismiss and summary judgment).
C.

Plaintiff has adequately pleaded the other elements of
his conspiracy claim.

In

addition

discrimination,

to

attacking

Defendants

Plaintiff’s

assert

that

allegations

Plaintiff’s

of

conspiracy

claim should fail because Plaintiff has not pleaded two of the
claim’s other elements: (1) a conspiracy; and (2) an overt act in
furtherance of the conspiracy.

Perez-Sanchez v. Pub. Bldg. Auth.,

531 F.3d 104, 107 (1st Cir. 2008) (setting out the elements of
conspiracy under 42 U.S.C. § 1985(3)); Henrikson v. Town of E.
Greenwich, ex rel. Raposa, 94 F. Supp. 3d 180, 193-94 (D.R.I. 2015)
(same).

Specifically, Defendants argue that Plaintiff does not

“set forth anything concerning the who, what, when, where, how and
why of any alleged conspiracy.”

(Defs.’ Reply 5, ECF No. 22-3.)

Defendants’ assertion is incorrect.
Plaintiff alleges that Fagan, Overton and/or Leco discussed
Plaintiff’s housing voucher and “agreed on a plan to handle the
unsubstantiated accusations that Plaintiff was committing fraud on
the WWHA.”

(Am. Compl. ¶ 70.)

Plaintiff goes on to detail the

plan: Fagan and a WWHA employee threatened Plaintiff until he
voluntarily surrendered his voucher (Id. ¶¶ 72-82), and then, when
Plaintiff

withdrew

his

relinquishment,

WWHA

conducted

hearing to formally revoke it (Id. ¶¶ 89-106).

8

a

sham

Based on these

allegations, Plaintiff alleges a conspiracy and an overt act to
deprive Plaintiff of his voucher.

His claim, therefore, survives

Defendants’ motions to dismiss.
D.

Plaintiff has alleged Defendant D&V receives federal
funds for the purposes of his Title VI and Rehabilitation
Act Claims.

Defendants also argue that Plaintiff’s Title VI (Count 4) and
Rehabilitation Act (Count 5) claims should be dismissed against
D&V, Leco, and Overton because D&V does not receive federal funds.
Defendants concede that Plaintiff pleaded this element in his
Amended Complaint, but urge the Court to overlook Plaintiff’s
allegation in favor of affidavits Defendants submit asserting that
D&V does not, in fact, receive federal funds.
to consider Defendants’ affidavits.

The Court declines

To do so would require the

Court to convert these motions to ones for summary judgment, which
would be inappropriate at this time.

Defendants are free to

reassert their federal funding argument should the parties move
for summary judgment.
E.

Plaintiff has alleged a defamation claim.

Next, Defendants argue Plaintiff’s defamation claim should be
dismissed because he does not properly plead damages.

According

to Defendants, Plaintiff does not allege that he suffered any
damages, an essential element of a slander claim such as this one.
Marcil v. Kells, 936 A.2d 208, 212 (R.I. 2007) (stating the
elements of a defamation claim under Rhode Island law).
9

And

Defendants argue that Plaintiff’s allegation do not amount to
slander per se, a type of defamation that would excuse Plaintiff’s
failure to plead damages.

See id.

Both of Defendants’ arguments

are without merit.
Plaintiff’s defamation claim arises from Fagan and another
WWHA employee’s public accusation that Plaintiff was defrauding
WWHA.

Defendants assert that this accusation did not damage

Plaintiff because Plaintiff admits in his Amended Complaint that
he never made any money from his food truck.

Defendants posit

that this admission makes it impossible for Plaintiff to have
suffered damages.

Defendants’ logic is flawed.

As Plaintiff

points out, that his business might have been struggling does not
affect whether Fagan’s comment drove away business and affected
his

reputation

in

the

community,

Plaintiff’s Amended Complaint.

allegations

contained

(See Am. Compl. ¶ 189.)

in

Plaintiff

has pleaded damages sufficient to sustain his defamation claim.
Yet, even if Plaintiff did not plead actual damages, his
defamation claim could still proceed.

Plaintiff alleges that

Defendants accused him of committing fraud, going so far as to
threaten Plaintiff with jail time unless he relinquished his
voucher.

Plaintiff, thus, alleges that Fagan falsely accused him

of a crime, a comment that constitutes defamation per se. Marcil,
936 A.2d at 212 (noting that the defamation per se categories under
Rhode Island law are false statements involving a criminal offense,
10

loathsome disease, matter incompatible with his business, trade or
profession, or serious sexual misconduct). 3
F.

Plaintiff has alleged an extortion claim.

As with his defamation claim, Defendants move to dismiss
Plaintiff’s

extortion

claim

on

the

claim’s

damages

element. 4

Defendants appear to concede that, at this stage, Plaintiff has
alleged that Fagan extorted Plaintiff’s housing voucher from him
on June 17, 2015 by compelling him to voluntarily relinquish it.
But Defendants argue that Plaintiff did not suffer any damages
from

this

alleged

relinquishment

extortion

before

WWHA

because

actually

Defendants’ argument is, again, flawed.

Plaintiff
terminated

revoked
his

his

voucher.

Contrary to Defendants’

3

Defendants try to sidestep Fagan’s alleged accusation of
fraud by citing to cases that hold defamation per se only arises
for accusations of criminal conduct when the comments include all
elements of a crime or claim.
This requirement, however, only
applies to instances where the comment does not expressly accuse
the victim of a crime. See Marcil v. Kells, 936 A.2d 208, 214
(R.I. 2007) (“[F]or [] statements to be defamatory per se, a
defendant need not state the actual crime committed, if the
elements are alleged.”)
Here, Fagan stated that Plaintiff
committed fraud. Consequently, even though Fagan did not spell
out each element of fraud in her comment, the statement still meets
the requirements for per se defamation because she accused him of
the crime.
4

For Plaintiff’s extortion claim to survive, Plaintiff must
allege (1) an oral or written threat to harm Plaintiff or his
property; and (2) that Defendants intended to compel Plaintiff to
do something against his or her will.
State v. Price, 706 A.2d
929, 933 (R.I. 1998).
Further, to sustain his civil extortion
claim, Plaintiff must allege damages. See R.I. Gen. Laws § 9-12; Lyons v. Scituate, 554 A.2d 1034 (R.I. 1989).
11

assertions,

Plaintiff

does

allege

that

Defendants’

extortion

injured him; he claims it resulted in “the termination of his
Section 8 voucher, lost business opportunities, loss of reputation
and standing, humiliation, mental anguish, anxiety, depression,
and emotional distress.”

(Am. Compl. ¶ 195.)

Defendants do not

cite to any authority suggesting that these types of damages are
insufficient to support a civil extortion claim under Rhode Island
law.

It is, of course, an open question as to whether these

damages will stand up on summary judgment or trial; but that is
for another day. Consequently, the Court denies Defendants’ motion
on this claim.
G.

Plaintiff’s punitive damages claims may proceed.

Defendants also move to dismiss Plaintiff’s punitive damages
allegations under both his defamation and extortion claims.

As

Defendants correctly point out, punitive damages claims “must be
based upon intentional and malicious conduct toward the plaintiff.
Conduct that is merely reckless does not justify punitive damages.”
Wilson Auto Enters., Inc. v. Mobil Oil Corp., 778 F. Supp. 101,
107 (D.R.I. 1991) (emphasis in original).

While Defendants argue

that Plaintiff has only pleaded negligent conduct, this again
misstates the allegations in Plaintiff’s Amended Complaint.

As

detailed above, Plaintiff has alleged that Defendants developed a
plan to knowingly deprive Plaintiff of his Section 8 voucher.

12

Thus, it is premature to decide what level of intent Defendants
possessed.
H.

The individual
Counts 4 and 5.

defendants

should

be

dismissed

from

Finally, Defendants move to dismiss Plaintiff’s Title VI
claim (Count 4) and Rehabilitation Act claim (Count 5) as to
Overton, Leco, Fagan, and Starling in their individual capacities,
and as to Starling in his official capacity.

Plaintiff concedes

that these counts cannot be maintained against individuals sued in
their individual or official capacities. See Pollard v. Georgetown
Sch.

Dist.,

132

F.

Supp.

3d

208,

229-30

(D.

Mass.

2015)

(“individuals cannot be held liable under Title VI” (quoting Thomas
v. Salem State Univ. Found., Inc., No. 11–cv–10748–DJC, 2011 WL
5007973, at *6 (D. Mass. Oct. 18, 2011)); Doe v. Town of Bourne,
No. Civ.A.02-11363-DPW, 2004 WL 1212075, at *3 (D. Mass. May 28,
2004) (“individuals in their individual capacities are not liable
under § 504 [of the Rehabilitation Act]”).

Consequently, Counts

4 and 5 are dismissed as to Overton, Leco, Fagan, and Starling in
their individual capacities and as to Starling in his official
capacity.
Counts 4 and 5, however, are not dismissed against Overton
and Leco as partners of D&V.

Under Rhode Island law, “without

joining at least one partner to the action, a partnership has no
capacity to be sued as such.

Actions must be maintained by and

13

against the partners.”

Nisenzon v. Sadowski, 689 A.2d 1037, 1049

(R.I. 1997) (internal citation and quotation marks omitted). While
Fed. R. Civ. P. 17(b)(3) expressly permits partnerships to sue and
be sued under their common name to enforce federal laws - even
where not permitted by state law - it does not require parties to
sue the partnership under its common name.

See Fed. R. Civ. P.

17(b)(3). Here, Plaintiff brings both federal and state law claims
against Defendants.

Consequently, the Court sees no point in

requiring Plaintiff to bring a suit against D&V for Plaintiff’s
federal claims and against Overton and Leco as D&V’s partners for
Plaintiff’s state law claims.

Counts 4 and 5 remain against

Overton and Leco purely as partners in D&V.
IV.

Conclusion
For the forgoing reasons, the Court hereby GRANTS IN PART and

DENIES IN PART Defendants’ motions to dismiss.

The Court GRANTS

the motions as to Counts 4 and 5 against Overton, Leco, Fagan, and
Starling in their individual capacities and as to Starling in his
official capacity.

The Court DENIES the remainder of Defendants’

motions.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: June 10, 2016

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